CIVIL TRIAL AND ADVOCACY
TOPIC : INTERVIEW
RE : ACCIDENT AT EVEREST ROCK CLIMBING CENTRE
LEGAL OPINION
NEGLIGENCE:
“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Per Alderson B., Blyth v Birmingham Waterworks Co. (1856). A duty of care was originally established by applying Lord Atkin’s “Neighbour” Test from: Donoghue v Stevenson (1932). Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person [objective] in the same situation would clearly have realized, also breaches that duty. Through civil litigation, if an injured person proves that another person acted negligently to cause his injury, he can recover damages to compensate for his harm. Proving a case for negligence can potentially entitle the injured plaintiff to compensation for harm to their body, property, mental well-being, financial status, or intimate relationships.
Remoteness in is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong. In negligence, the test of causation not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was not too remote. As with the policy issues in establishing that there was a duty of care and that that duty was breached, remoteness is designed as a further limit on a cause of action to ensure that the liability to pay damages is fairly placed on the defendant. This was largely considered unfair as a defendant could be liable for damage which was not foreseeable and therefore could not take steps to prevent it. The direct consequence test was overruled in the case of Wagon Mound no 1 and replaced with a new test for deciding if damages are too remote.
A typical formula for evaluating negligence requires that a plaintiff prove the following four factors by a "preponderance of the evidence":
- The defendant owed a duty to the plaintiff (or a duty to the general public, including the plaintiff);
- The defendant violated that duty;
- As a result of the defendant's violation of that duty, the plaintiff suffered injury; and
- The injury was a reasonably foreseeable consequence of the defendant's action or inaction.
APPLICATION: Shukri (15 year old) is son of Puan Kamariah. Shukri owed duty of care to protect himself from any harm and dangerous. As a reasonable man he should forseeable that without putting the harness properly it will cause danger to himself and another. But, Shukri negligently breach the duty of care. The breach happened when Shukri failed to put his rope properly. That was his fault to not putting the rope on properly. As the result, Richard Chong suffered injury on his right leg. So, Richard Chong may claim damages from him for the breach done but the damages must not too remote. If not, the amount of damages claim is wrong. It is important to ensure that the liability to pay damages is fairly placed on Shukri. Not every loss will be recoverable in tort law. Shukri can only be liable for losses forseeable which were a direct consequence of the Shukri's breach of duty.
- Shukri owed a duty to Richard Chong ;
- Shukri violated that duty;
- As a result of Shukri's violation of that duty, Richard Chong suffered injury; and
- The injury was a reasonably foreseeable consequence of the Shukri's action or inaction.
- The compensatory damages claimed towards Shukri or Puan Kamariah must not too remote.
CONTRIBUTORY NEGLIGENCE:
Contributory negligence in common-law jurisdictions is defense to a claim based on negligence, an action in tort. It applies to cases where a plaintiff, Claimant has, through his own negligence, contributed to the harm he suffered. Contributory negligence can be compared to comparative negligence, where the negligence of the plaintiff is not a complete defense of the insured but can reduce the damages. In some jurisdictions, the defendant has to prove the negligence of a plaintiff or claimant. In others, the burden is on a plaintiff to disprove his own negligence. The tortfeasor may still be held liable if he had the last clear chance to prevent the injury (the last clear chance doctrine).
There are 3 ways a Plaintiff can be contributed to the negligence, which are first is by contributing to the accident and second is by exposing themselves to risk of accident and third is failure to take reasonable precautions to minimize injury in the event of accident. Contributory negligence must be a cause of the loss in order for it to count against him. But, for the plaintiff’s own actions or omissions the accident would not have happened. It must also count as proximate cause and the injury must culminate from risk created by Plaintiff.
Walls v Mussens (1969 NB CA), based on modified objective test “not whether the Plaintiff exercised a careful and prudent judgment in doing what he did, but whether what he did was something that an ordinarily prudent man would have done under the stress of an emergency” found the Plaintiff was not contributed to the negligence for failing to use fire extinguisher to put out the fire in his shop stared by the Defendant.
Gagnon v Beaulieu (1977 BC SC), established that Plaintiff knew or ought to have known that he should be wearing a seatbelt, Plaintiff was held contributed to the negligence for injuries sustained in motor vehicle accident and duty on Defendant to show that the seatbelt was not worn, and if it was that it would have prevented injuries.
Eckert v. Long Island R. R. Co., Eckert saw a boy sitting on railroad tracks. He succeeded in saving the “boy” but was struck and killed by the train. The court held that when a rescuer attempts to save someone in imminent peril, he may assume extraordinary risks or perform dangerous acts without being contributorily negligent.
APPLICATION: Richard Chong who is the owner of the Centre also contributed to the negligence done by Shukri who was carelessly failed to put his harness properly. The fact is Richard Chong suffered injury not only because of negligence of Shukri who failed to put his harness properly but, Richard Chong also failed to put his harness properly attached to the safety rope and fixing the harness, so he fell down. This fault affected Richard Chong suffered serious injury on his right leg as he contributed in the accident at Everest Rock Climbing Centre. Shukri and Puan Kamariah based on Gagnon v Beaulieu (1977 BC SC), can use this defense of contributory negligence to claim an action in tort.
OCCUPIER’S LIABILITY:
Occupiers' liability is a field of tort law, codified in statute, which concerns the duty of care that those who occupy (through ownership or lease) real property owe to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises. The occupier is any person who has a sufficient degree of control over premises. Wheat v Lacon [1966] 1 All ER 582, landlord and tenant of pub both owed duty of care to guest injured on stairs. However, no breach on the facts. Harris v Birkenhead Corp [1976] 1 All ER 341, council was the occupier of a compulsorily purchased house, which was no longer resided in by previous owner.
Historically, ‘special rules’ determined who the visitor was:
¡ a trespasser – one who was there without the occupier’s permission;
¡ a licensee – a person permitted or invited to be there;
¡ an invitee – the same as a licensee except that there must in addition have been something in the nature of a business relationship between occupier and invitee;
¡ an entrant as of right – this covered a heterogeneous group of people who had a right to go onto the occupier’s land, including visitors to public facilities such as parks and playgrounds, the person who came to read the meter and the fireman who came to extinguish a fire; or
¡ a contractual entrant – these were people who had paid to use the occupier’s premises, such as cinema goers.
Occupiers must take reasonable care and owe a common law duty of care to ensure that anyone (even trespassers) who comes onto those premises is not injured (Hackshaw v Shaw (1984)). Where the danger is unnatural or hidden, a public authority owes a duty of care, at common law, to warn persons using the area of foreseeable risks.
In Fairman v Perpetual Investment, the Court held that a person who lodged in a flat or an apartment in an apartment house with her sister, the wife of the tenant of the apartment, was not an invitee of the owner of the building when walking on a stairway which was under the owner's control, but was only a licensee.
APPLICATION: Puan Kamariah and her son is the licensee as two persons permitted to be there. So, the Centre that is the occupier must take reasonable care and owe a common law duty of care to ensure that anyone (even trespassers) who comes onto those premises is not injured. The Centre has a sufficient degree of control over premises. As in negligence, once the claimant (like Puan Kamariah and son) has proved that the defendant was in breach of his duty towards them, they must go on to prove damage and factual and legal causation. Defences, such as contributory negligence, assumption of risk, ex turpi causa etc. will equally apply to actions under the Occupiers' Liability.
RESCUE CASES
A duty to rescue is a concept in tort law that arises in a number of cases, describing a circumstance in which a party can be held liable for failing to come to the rescue of another party in danger. In Solomon v. Shuell, plain clothes police officers were arresting robbery suspects. The decedent thought the suspects were being attacked and was shot by one of the officers when he came out of his house with a gun. The court held that under the rescue doctrine, contributory negligence is not present if the rescuer had a reasonable belief that the victim was in actual danger. Eckert v. Long Island R. R. Co., Eckert saw a boy sitting on railroad tracks. He succeeded in saving the boy but was struck and killed by the train. The court held that when a rescuer attempts to save someone in imminent peril, he may assume extraordinary risks or perform dangerous acts without being contributorily negligent. Where a duty to rescue arises, the rescuer must generally act with reasonable care. The rescuer is an emergency worker. Furthermore, the rescuer need not endanger himself in conducting the rescue. If some one want to help he must think of risk before he go for help. Only a well trained person with skills can go to help. Here, Richard Chong is an owner of the Centre and he has knowledge on the wall climbing security and should apply it.
CONTRACT
A contract is a legally enforceable agreement between two or more parties with mutual obligations. The remedy at law for breach of contract is "damages" or monetary compensation. The case of Carlill v Carbolic Smoke Ball Company is an example of a 'unilateral contract'. Obligations are only imposed upon one party upon acceptance by performance of a condition. There was a contract to follow climbing wall safety policies. For example, the climbers must be roped and must wear harnesses for safety reason. The ticket for the wall climbing centre entrance is an agreement of the climbers to follow the safety policies of the centre. Besides that, Puan Kamariah and her son, Shukri had paid some amount of money to enter and train them on how to climb the wall. The receipt of the payment can be used as a prove that they have a legally enforceable agreement between them and the Centre. They pay to be trained there and the Centre received the payment (consideration) paid by them as a monthly fees. So, there was a contract between them. So, in the event if the Centre breach the contract, they can sue for it.
COUNSELING
Perhaps a sincere apology from both you and your son might go a long way toward mitigating what could end up being a very good lesson. Puan Kamariah and Shukri may request for forgiveness for the injury suffered by Richard Chong. Perhaps that fellow will not take action at all because of your apology. For example, Puan Kamariah and Shukri may visit Richard Chong at hospital and send him a chocolate and roses and ask for apology as what happened before.
Please bear in mind that you are not being sued yet. The injured person still does not take any action against you.
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