PACC6009 Business Law And Australian Law Management

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Questions:

Task:

Is Eagle Farm Racing Pty Ltd liable to pay Adair compensation for her injuries?

Is Southern University vicariously liable to Black Midnight’s owners for the loss of potential race winnings?

In answering the above questions please use the ILAC method, making reference to case law and relevant sections of the Civil Liability Act 2003.

Answers:

Law

The applicable law in the given situation is tort of negligence for which relevance to Civil Liability Act 2003 is imperative. For establishing the existence of negligence tort, the plaintiff broadly needs to prove the following three conditions.

The defendant has a duty to care towards the plaintiff on account of the neighbor relationship existing between the two as the plaintiff may be adversely impacted on the choices of action or inaction made by the defendant (Donoghue v. Stevenson [1932] AC 562) (Latimer, 2016).

Once, there is existence of duty to care, it is imperative that the same must be breached by the defendant by not those actions which a reasonable person would have taken in the given circumstance so as to ensure that plaintiff does not suffer any damage (Harvey, 2009).
If there is a breach of duty, it is essential that damages should have been suffered by the plaintiff. Further, in accordance with s. 16, Civil Liability Act 2003, the defendant would not be held liable as being negligent if there is inherent risk materialization which causes damage to the plaintiff. Inherent risk may be defined as the risk of occurrence of an event which cannot be avoided even after taking reasonable care (Lindgren, 2011).

Further, in case of intoxication and the person getting harmed, it would be assumed that there is prevalence of contributory negligence unless it can be proved that it did not lead to breach of duty and the fact that the alcohol consumption was not self-induced (s. 47, Civil Liability Act 2003). Further, s.13 outlines the concept of obvious risk which in a given circumstance would be known to a reasonable person (Davenport & Parker, 2014). If the plaintiff suffers damage owing to obvious risk, then it may be fair to assume that there is voluntary assumption of risk which may serve as a defense for the defendant (s. 14, Civil Liability Act 2003). Also, as per s. 15, the defendant has no duty to make the plaintiff aware of the obvious risks (Gibson & Fraser, 2014).

Application

With regards to the given facts, it is apparent that Adair Devil was intoxicated when she decided to decide the race perimeter fence which was 1.5 m high. She walked for several meters before overbalancing and falling on the race course. In the course of the fall, she suffered a broken leg and now intends to sue the Eagle Farm Racing Pty Ltd due to lack of any warnings prohibiting climbing on the fence. Adair would not be successful in her claim because of the following reasons.

Climbing the fence which is 1.5 m given rise to an obvious risk and the defendant does not need to make the plaintiff aware of such risk as per s. 15, Civil Liability Act 2003. Additionally, there is voluntary assumption of risk by Adair by undertaking an obvious risk. Besides, s. 47 is applicable as per contributory negligence would also be claimed by the defendant as she heavily drunk and thus, should have refrained from climbing the fence as under alcohol the balance of the person becomes less stable , thus increasing the obvious risk further. Besides, it is unlikely that any warning sign would have stopped Adair and her colleagues from indulging in such an action and thus, s. 16 may also be applicable in this case.

Due to fall of Adair on the race track, damage was suffered by the owners of a horse Black Midnight as due to the shock, the horse would not be able to race again. Clearly, as Eagle Farm Racing Pty Ltd had erected the fence and taken requisite precautions to prevent such a damage, hence they cannot be held liable for the loss caused to the owners of the Black Midnight. Typically an employer is held responsible for the act of an employee under the vicarious liability but one of the exceptions which the employer can claim in their defense is when the employee is not discharging the official duties. It is apparent that in the given case, Adair is not discharging her professional duties but instead is on a leisure trip and thus the employer cannot be held responsible for the vicarious liability arising from the negligent action of employee (Adair).

Conclusion

Based on the above discussion, it would be fair to conclude that Adair cannot hold the farm owners liable for her injury and also the owners of Black Midnight cannot impose vicarious liability on the Southern University on account of negligence by Adair.

References

Davenport, S. & Parker, D. (2014). Business and Law in Australia (2^nd ed.). Sydney:LexisNexis Publications.

Gibson, A. & Fraser, D. (2014). Business Law (8^th ed.). Sydney: Pearson Publications.

Harvey, C. (2009). Foundations of Australian law (2^nd ed.). Prahran, Vic.: Tilde University Press.

Latimer, P. (2016). Australian Business Law CC (1^st ed.). Sydney: LexisNexis Study Guide.

Lindgren, KE. (2011).Vermeesch and Lindgren's Business Law of Australia (12^th ed.). Sydney: LexisNexis Publications.

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