Development of Concept of Contributory Negligence †Free Samples

Question: Discuss abou the Development of Concept of Contributory Negligence. Answer: Introduction The legal meaning of the word tort is a wrong" or a violation of ones obligations as imposed by the law. When someone violates the imposed duties, the other person concerned with those duties suffers some injuries. Such injuries could be either physical or to the properties. For a further understanding of the application of the law of tort, this paper will draw from two scenarios. The first one would be a scenario of an accident that involves Katie, Max, and Rita. Katie is the driver who causes the accident. Max is the pedestrian who is a victim of the accident. Max also had closed the road without obeying the traffic lights and also seeing Katie's vehicle approaching. Rita, an eyewitness, allegedly suffers a nervous breakdown which causes her future phobia about crossing streets. The second scenario that this paper will examine regards the case of XYZ Bank and Harry. Harry provides an untrue valuation that XYZ relies on while issuing a loan to its client, Robbie. Later, the bank suf fers loss due to Harry untrue reports. Katie, Max and Rita Issue This scenario is a combination two main issues; contributory negligence and psychiatric injuries. Particularly, Katie and Max claims would fall under contributory negligence. Rita issue would fall under the principles of psychiatric injuries or nervous breakdown. Rules of Law For a start, contributory negligence is a major defense against a claim of tort. This defense generally arises in situations where the plaintiffs failure to observe reasonable care contributes to their injuries(Dongen Verdam, 2016). In the past, common law could allow the defense of contributory negligence to defeat a plaintiff s claim especially where the court found the plaintiff had 100% contributory negligent. The recent statutory provisions have abolished that principle and they now provide for the apportionment of damages as per the plaintiffs degree to of contribution as stated in section 9 (Law Reform [Miscellaneous Provisions] Act , 1965). The section 9 (1) b allows the court to determine damages considering each partys negligent contributions to the damages. In other words, the defense would never fully exonerate the defendant from the claim(Goudkamp, 2015). A landmark case for this principles is (Podrebersek v Australian Iron and Steel , 1985). The plaintiff was working as a gas regulator in the defendants company. He screwed the gas valve badly leading to a gas that caused his injuries. The court found the employer 10% guilty of negligent while the plaintiff had 90% contributory negligent. Also, in ( Turkmani v Visvalingam , NSWCA 211), the court of appeal found that the claimant had 80% contributory negligent. The claimant was jogging in a Dont Walk intersection when he was struck by the defendants van. On the part of Rita, the claim falls within the scope of pure psychiatric injuries. While handling these cases, courts create a distinction between primary and secondary victims. Primary victims are those who are actual victims the incident while secondary victims are eyewitnesses and people who arrive at the scene immediately after the incidence(Strong Williams, 2011). In a general sense, the defendant owes no duty to the world for preventing people from seing a shock. Therefore, for a court to allow a secondary victim to claim psychiatric injuries, the following elements must be available; There must be a close bond of love and affection between the primary and secondary victim. There is always a close among spouses, parents, and children. Anyone who is not among these people must provide a reasonable connection. Secondly, the court also requires a geographical closeness to the scene of the incidence or its aftermath(Mulheron, 2016). Courts require the claimant to be either at present or arrive soon after the incident. Stories from third parties of television do not substantiate geographical proximity. In (Janesch v Coffey, 1984) the claimant suffered nervous shock after seing her husbands injuries in the hospital. The court awarded her the claimed damages after finding that there was proximity even though the wife was not at the scene of the accident. Lastly, there should be a medical proof of psychiatric illness that a claimant alleges to have suffered(Mullis Oliphant, 2011). In summary, the South Australian section 53,(1b) of ( Civil Liability Act , 1936) limits secondary victims claim that for one, the claimant Is a parent, spouse, domestic partner or child of a person killed, injured or endangered in the accident. Conclusion Following the cases above, it is very likely that the damages of Max against Katie would be calculated proportionally. The court would find Katie negligent, but it would also find that Max contributed to his damages as he should have respected the Red-light warning. For the case of Rita, the claim would fail since Rita is a secondary victim who has no close tie of love or affection to Max. Therefore, Rita does not meet the requirements of section 53,(1b) of ( Civil Liability Act , 1936). XYZ Bank and Harry Issue The main issue in this case is pure economic loss caused by a negligent statement. Rules of Law The general rule that applies to cases of pure economic loss is very strict. Where a claimant brings a claim where the core of the claim is pure economic loss, courts award very limited damages under the tort of negligence(Sabapathy, 2009). However, if the claimant demonstrates that a contract existed between him and the defendant, then the court will allow the claim. The law will always dismiss a claim for pure economic loss where there are no physical injuries, no contracts, and no property damages(Ramello Porrini, 2011). The general rule that applies to cases of pure economic loss is very strict. Where a claimant brings a claim where the core of the claim is pure economic loss, courts award very limited damages under the tort of negligence. However, if the claimant demonstrates that a contract existed between him and the defendant, then the court will allow the claim(Ramello Porrini, 2011). The law will always dismiss a claim for pure economic loss where there are no physical injuries, no contracts, and no property damages. Regarding XYZ Bank and Harry scenario, there are special circumstances where a claim a court will allow a claim of pure economic loss resulting from misstatement. In such cases, the claim has to meet the following requirements. For one, the defendant must have sufficient knowledge that his statement would be used elsewhere to make financial decisions. It is not a requirement that the defendant knew the person who would use the statement. In (Esanda Finance Corporation Limited V Peat Marwick Hungerfords, 1997), the plaintiff relied on the defendants audited accounts while offering credit to Excel, a defendants client. The accounts were misstated, and the plaintiff could not recover its loan. The court found that the defendant owed no duty to the plaintiff as was not negligent as they did not know whether anyone would use the accounts to issue credit. Secondly, the misstatement should have direct connection to the claimed transaction. Lastly, the claimant must demonstrate that defendan t reasonably expected him rely on that statement without seeking further advice. In (Shaddock V Parramatta City Council, 1981), the case succeeded since all the three elements were present. The claimant intended to purchase a property within the Councils area of operation. Shaddocks solicitor requested the council to provide information regarding the status of the property in terms of proposals for widening the roads. The defendant carelessly told the claimant that there was no proposal whereas there was one in fact. The misstatement caused the claimant a loss. The court found the defendant guilty since it was aware that the claimant would rely on that information. The appellants claimed that they had sustained loss by reason of their reliance on erroneous information supplied to them innocently but negligently by the respondent. The trial judge found that the respondent had been careless but that it owed no relevant duty of care to the appellants. This decision was affirmed by the Court of Appeal on appeal to the High Court. Conclusion Following the above analysis, it is likely that Harry would be liable for the damages suffered by XYZ bank due to reliance on Harrys untrue statement.(Pitts v Hunt , 1990) It is possible that Harry, a friend to Robbie was aware that Robbie was borrowing some huge money and hence that is why he needed to lie about the value of his land. Besides, Harry should have not lied in the direction of Robbie since he knew Robbie who is his friend needed additional capital. However, it is up to XYZ bank to prove that Harry was aware of Robbies plan to use the wrong statement to acquire capital. Bibliography Civil Liability Act , 1936. s.l.: South Australia. Dongen, E. G. v. Verdam, H. P., 2016. The Development of the Concept of Contributory Negligence in English Common Law. Utrecht law review, , 12(1), pp. 61-74. Esanda Finance Corporation Limited V Peat Marwick Hungerfords (1997) 142 ALR 750. Goudkamp, J., 2015. Apportionment of Damages for Contributory Negligence: A Fixed or Discretionary Approach?. Legal Studies, , 35(4), pp. 621-647. Janesch v Coffey (1984) 155 CLR 549. Law Reform [Miscellaneous Provisions] Act , 1965. s.l.:s.n. Mulheron, R., 2016. Principles of Tort Law. 1 ed. United Kingdom, UK: Cambridge University Press. Mullis , A. Oliphant, K., 2011. Torts. 4 ed. United Kingdom, UK: Macmillan International Higher Education. Podrebersek v Australian Iron and Steel (1985) HCA 34 . Ramello, G. B. Porrini, D., 2011. Class Action and Financial Markets: Insights from Law and Economics. Journal of Financial Economic Policy, , 3(2), pp. 140-160. Sabapathy, S., 2009. Tort recovery of pure economic loss for defective premises: a comparative analysis. International Journal of Liability and Scientific Enquiry, , 2(1), p. 84. Shaddock V Parramatta City Council (1981) ALR 385. Strong, S. I. Williams, L., 2011. Complete Tort Law: Text, Cases, Materials. 2 ed. Oxford: Oxford Univ. Press. Turkmani v Visvalingam (NSWCA 211) 2009.