The case is of defendant Alice who is the owner of ‘Wonderful Whale
Watching’ business company and the plaintiff Marcos who was injured on the
property of Alice. The plaintiff had come to do whale watching on defendant’s
boat. The boat was old and could carry 20 passengers at a time. Alice had done some renovation on floor by
installing high quality marine carpet. But she did it on only 50% of the deck
and other half was painted with colour due to high cost which she could not
afford. She also advised the customers who came on board to wear closed-in
footwear. But the plaintiff was not wearing closed-in footwear but sandals
however being an owner of a business Alice should also look after such mistakes
from customers. But she was not keen on those kinds of things because she was
only trying to avoid getting bad customers’ feedback.
Plaintiff had the booking on 19th June 8AM. And on previous day
Alice could not spot a whale so he had to offer a free ride to customers on 19th
June next day when Marcos and Xi had their booking. Boat was over the capacity
and due to chaos Marcos slipped from the wet paint and he was diagnosed with
severe concussion and a shattered hip.
So, in this case, Marcos(plaintiff) must first prove that Alice
(defendant) owed him a duty of care. Likewise,
Marcos also must demonstrate that Alice breached the duty of care as she failed
to do his task meeting the standard expectation. Alice should have put the
marine matt all over the deck. But, as advised Marcos has not worn the
closed-in footwear. Marcos should prove that because of Alice breach of duty of
care he suffered damage. Therefore, Marcos should prove all elements as
mentioned above or should bear the burden of proof to present in the court to
get a right decision depending on the balance of possibilities as per legal
DUTY OF CARE
A duty of care
is a legal commitment to avoid causing harm and it rises where harm is
reasonably foreseeable if care is not taken. There must be an adequate
relationship of closeness or proximity between the two individuals all together
for an obligation of care to exist.
In this case,
does defendant (Alice) owe duty of care to the plaintiff (Marcos)?
Due to the
carelessness of the owner by overcrowding the boat and not putting up marine carpet
all over the floor, Marcos slipped from the wet paint and he was diagnosed with
severe concussion and a shattered hip. Here there is a relationship between
plaintiff and defendant. Owners of the business (Alice) have a duty to take
reasonable care to keep their premises safe for customers (in this case, Marcos).
Alice should have put the marine carpet all over the floor to avoid slippery
surface. The Supreme Court in Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959), held that “shipowners owe
a duty to exercise reasonable care for the safety of its passengers. Owners
must exercise reasonable care under the circumstances. These accidents
can happen anywhere on the boat, from your initial steps onto the ship during embarkation,
and even leaving the ship once you return to the port.”
Here the scope
of the duty would extend to taking steps to protect the customers on the boat
from foreseeable risk. Also, there is a similar case of Donoghue (or McAlister) v Stevenson, 1932
where “neighbour principle” was
established. According to this referred case, “Mrs Donoghue(plaintiff)
here was bought a Ginger beer by her friend in a café in the year 1928. While
drinking, she found out a rotting snail in the bottle. She was identified with
gastroenteritis by her physician. Since Donoghue didn’t buy the drink herself,
however, Donoghue lodged the case against Stevenson who was the manufacturer of
Ginger beer. Steven argued that they were not bound by any contract as her
friend bought the drink. However, because of the drink plaintiff suffered so
this case developed Lord Atkin’s ‘Neighbour Principle’ as per which Stevenson
was liable to pay Mrs Donoghue as he held the duty of care towards the
customers who consumed his products.” Similarly, in this case Alice being the
neighbour should have taken care of all the passengers on board.
So, in this case
Alice owes the duty of care to Marcos as
she was the one who was responsible for the injury of Marcos due to not putting
the carpet all over and overcrowding the boat.
BREACH OF DUTY OF CARE
Breach of duty
is when a person or an organization has a duty of care towards the other person
or organization, but it fails to exercise reasonable care in fulfilling the
duty. Breach of duty of care is determined by looking into standard of care
that is expected during that circumstances. Standard of care means what a
reasonable person would do or react during the circumstances.
Did Alice breach
duty of care to Marcos? Did she fail to perform her duty adequately?
As we can see in
this case, a reasonable person in the position of Marcos(defendant) could also
foresee the risk of getting slipped off due to paint and the overcrowded boat.
This case comes
under Premises Liability case. Premise liability states that he or she can sue
the owner of the property due to the carelessness of the property owner in
maintaining the safe environment. Here, Marcos was injured on the premises of
Alice. Also, after Marcos getting hurt, Alice continued her search due to which
it took 50 mins for the lifeguard to reach Marcos and treat him.
Civil Liability act s 9(2), states that “how
a reasonable person (defendant) would have taken safety procedures to avoid
injury to the plaintiff. Defendant as a reasonable person would have done
things preventing damage to every party, which is also known as the standard of
The seriousness of harm here is Marcos was diagnosed with severe
concussion and a shattered hip. And due to which he had to cancel his tour and
lost $1500 in performance fees and merchandise sales. As stated in Paris v
Stepney Borough Council 1951 AC 367; that “the seriousness of harm must
be considered when assessing the defendant’s obligation to prevent harm”. After
seeing the seriousness of harm, Alice had an obligation to take reasonable
steps to avoid slip and fall at the deck. Also, she should check passengers if
they are wearing proper clothes and shoes before entering the boat. Also, if
Alice could not afford a high quality of carpet, she could have bought a
standard quality and should have placed the carpet all over the deck. The
probability of slip and fall should not have taken place if the carpet was all
over the deck. The burden of using the safer alternative, than the risk of not
using them was less. In the case Swain v Waverley Municipal Council 2005
HCA 4; “the court held that the council had breached the duty of care owed
to Swain, by failing to take reasonable steps to prevent the foreseeable harm.
The court found that the harm could have been avoided by simply moving the
swimming flags to another part of the beach.”
Here, in this case, Alice is responsible for repairing the deck and
following the rules. So, she has breached her duty of care to everyone who was
on the boat including Marcos. Because of her negligence of omission in her work,
Marcos was seriously injured.
Damage is the third element where plaintiff must prove that due to
the negligence of defendant caused injury. The breach of duty of care must be
the legal cause of the harm to the defendant. Furthermore, as per, s 11(1)
(a) CLA the plaintiff should be able to prove defendant’s negligence that
caused plaintiff’s injury.
Here in this case Marcos must prove that due
to Alice’s negligence of not putting a carpet and allowing more than the
desired passengers on boat at a time caused physical injury to him. And to
prove this physical damage we need to consider two damage test those are
causation and Remoteness.
March v Stramare 1991 17R CLR 506 where Mason CJ said: “Legal concept of causation differs from
philosophical and scientific notions of causation. That is because questions of
cause and consequence are not the same for the law as philosophy and science.
In philosophy and science, the concept of causation has developed in the
context of explaining phenomena by reference to the relationship between the
conditions and occurrences. In law, on the other hand problems of causation
arise in the context of ascertaining or apportioning legal responsibility for a
given occurrence.” Barnett v Chelsea & Kensington Hospital 1969
1 QB 428
“Mr Barnett went to hospital due severe stomach
pains and vomiting. A nurse attended him. The doctor told her to send Mr
Barnett home and contact his GP in the morning. Mr Barnett died five hours
later from arsenic poisoning. Had the doctor examined Mr Barnett at the time
there would have been nothing the doctor could have done to save him.
The hospital was not liable as the doctor’s failure to inspect the patient did
not cause his death.
Introduced the ‘but for’ test i.e. would the result have occurred but for the
act or omission of the defendant? If yes, the defendant is not liable.”
So, If Alice had conducted her duty properly the damaged caused could be
Remoteness of damage means
that the damage should be foreseeable. The Wagon
Mound no 1 1961 AC 388 House of Lords
states “The defendant’s vessel, The Wagon Mound, leaked heater oil at a Wharf
in Sydney Harbour. Some cotton debris became involved in the oil and sparks
from some welding works exploded the oil. The fire spread rapidly causing
destruction of some boats and the wharf.
Re Polemis should never again be viewed as great law. A test of remoteness of
damage was substituted for the immediate outcome test. The test is whether the
damage is of a kind that was foreseeable.
If a foreseeable type of damage is present, the defendant is obligated
for the full extent of the damage, regardless of whether the degree of harm was
In this case, Marcos had to suspend their travels and is unable to continue to the
Gympie Music Muster, an event scheduled from 20 June-24 June which resulted in
them losing over $1,500 in performance fees and merchandise sales. In case it
is too remote.
In this case of Alice and Marcos
Contributory negligence comes into picture.
Contributory negligence comes into picture
when the plaintiff or the injured person have also contributed to the cause of
the loss or damage occurred to himself. In other words, plaintiff has also
fails to take reasonable care or safety for their own. According to the extent
of the contributed loss, the amount of claim will be decided. When the jury
must decide about the compensation they compare the defendant negligence and
plaintiff’s negligence and then take the decision. In Jackson v
McDonald’s Australia Ltd 2014 NSWCA 162, “the Court found the
plaintiff 70% contributory negligent when he slipped after walking through a
clearly signposted wet floor and did not hold any handrails. McDonalds bore 30%
of the liability for its failure to mop up the spill immediately.”
In this case Marcos was not wearing the
close-in footwear which also contributes to his injury. And Alice did not put
the carpet properly and overcrowded the boat so even she is liable for the
injury. In general cases of ‘slip and fall’ 30 % of the claim will be borne by
the plaintiff and the rest by the defendant.
At the final stage, the jury must make
final decision regarding the amount of compensation he defendant needs to pay
to plaintiff for the recovery of his injury. In this case, Marcos is
hospitalised for three weeks. He is diagnosed with a severe concussion and a
shattered hip. Due to this he suffered a loss of $1500 as well by missing his
music concert. As you can see the case of Fitzsimmons V Coles Supermarkets
Australia Pty Ltd. 2013 where the plaintiff was paid only 50% of his
compensation due to both the plaintiff and defendants fault. Here also there was a mistake of both
plaintiff and defendant, so the amount can be shared.
As Alice was responsible for applying the
carpet all over the deck, but she applied only 50% of it due to budget
constraints. Also, she overcrowded the boat knowing it is risky. Due to which
Marcos slipped and fell and was diagnosed with a severe concussion and a
shattered hip. Alice was found negligent and cause for the injury. Likewise,
Marcos was also found negligent because he disobeyed the rule of wearing the
close-in footwear. Here, both parties were found negligent and the compensation
will be shared among both parties.