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Ubayeda Shaqer

15975669

Enigneering Law: Assingment 2


Done by Ubayeda Shaqer

Ubayeda Shaqer

15975669

Table of Contents
1.

Self-Assessment Form: ....................................................................................................... 3

2.

Solution 1: Four Step Analysis: .......................................................................................... 4

3.

Solution 2: Four Step Analysis: .......................................................................................... 8

4.

References ........................................................................................................................ 10

Ubayeda Shaqer

1. Self-Assessment Form:

15975669

Ubayeda Shaqer

15975669

2. Solution 1: Four Step Analysis:


The area of law this dispute deals with is tort law. Specifically the legal concept to focus on is the
tort of negligence - that is if the accused companys carelessness if it exists and whether it
contributed to the accident which lead to injury of the plaintiff.

Law of tort (which literally means wrong in French) is a civil system which allows a parties to
claim damages if they have been wronged. There are many categories of tort law among which is
the negligent tort; which is the focus of this legal question. Negligent tort may be defined as the
failure to exercise necessary effort that a reasonably sensible and sane person would or would not
perform in like circumstances to prevent the action that may lead to injury or damage. The principle
of civil law- tort of negligence was founded in the case Donoghue vs. Stevenson (1932), which was
the first case that dealt negligence on behalf of parties who had no direct relationship and obliged
manufacturers or any recognised category of relationship to observe a duty of care towards their
customers. In order to justify negligence the plaintiff must full fill the following prerequisites:
1. Duty of care which means that a duty of responsible care was owed by the defendant to
the plaintiff.
2. Breaching the duty of care by the defendant by failing to adhere to the mandatory
standard of care and responsibility.
3. Finally a reasonably ascertainable consequence- injury or damage due to the defendants
conduct.
DUTY OF CARE
In a negligent tort claim, the plaintiff must establish that that duty of care was owed. In order to
ascertain the duty of care existed the plaintiff must demonstrate either that the parties subject to this
element of tort belong to a recognised category of relationship i.e. employer and employee;
alternatively confirm that risk of injury to the plaintiff was reasonably predictable outcome of the
defendants conduct; otherwise prove the relationship of defendant to the foreseeable risk or the
nature of damage the plaintiff has suffered. The general principle of duty of care was established in
1932 in the case of Donoghue vs. Stevenson (1932), where it was deliberated that proximity and
foreseeability are the primary elements to be examined in any duty of care consideration.
Proximity in the concept of duty of care is an obligation recognised by law owed to a person who
is likely to be closely and directly afflicted by the actions of the other. Subsequently foreseeability
is an objective analysis where it is determined whether actions or inaction of one person that has
caused injury to the other party was reasonably and legitimately predictable.
BREACH OF DUTY OF CARE
After principle of duty of care has been established, next the plaintiff must prove that there has
been a breach of this duty of care by failing to conform to the required standard of care, conduct or
practice.
This is an impartial examination of the defendants conduct in comparison to accepted standard of
care that was required in that particular situation; and if this standard was administered or breached.

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The measure and particular type of responsibility is decided on a case by case basis- but all the
facts that would influence the decision of a logical and reasoned person must be taken in context.
When proving negligence it is assumed in case of an individual the defendant must be someone of
normal intelligence and that organizations or entities must adhere to standard professional practise
laws. This means the reasonable person or entity must take into account the severity of the
consequences of the risks if it should occur. This seriousness is demonstrated in the Paris vs.
Stephaney Borough Council (1951) where Paris a one eyed mechanic hired by the council, aware
of his disability negligently did not provide safety goggles which caused Paris to go blind in a work
place accident. Although the risk of injury in this case was not greater for any other able mechanic
employed by the council, however the consequence of injury in the eye was far more grievous,
compared to a person who had eyesight in both eyes; therefore the standard of care owed to Paris in
regards to his eye was much greater.
In breach of duty of care another element to be considered is the degree of risk. This principle was
established in Bolton vs. Stone (1951) where the cricket ball flew across 17 foot high fence and
across a street to hit a woman as she stood on her property. However this situation was deemed low
risk and the fence a reasonable safety precaution; no further preventative measures were required as
the hit was exceptional, rare and no ball had gone past the fence over the last 30 years.
Lastly reasonable precaution or a safety plan against likely accidents or injury is important factor
when assessing standard of care. This legal principle was founded in 1964 during the case of
Hayley vs. London Electrical Board (1964)-where a blind man had fallen into a ditch which did
have a warning sign but the court ruled barrier should have been erected to prevent the foreseeable
event where a blind person may walk into the ditch or just as a reasonable preventive measure.
DAMAGE
Lastly in order for a valid negligent claim the plaintiff must prove that actual damages i.e.
monetarily loss or injury -physiological or physical caused due to the accident in question. There
are two primary element of damages which is the causation of the injury that has to be
demonstrated; and that the injured party may only recover for damages of a reasonably predictable
kind.
Causation has to justify the fact that the damage would not happen but-for a particular fault,
therefore the mistake was the cause of the damage. However if damage would have happened
regardless of the fault then it can be concluded fault is not a cause of the damage. The use of
common sense and but-for test have been applied to multiple cases to establish the reason for the
damage. This is seen in Cork vs. Kirby Maclean Ltd (1952) the court found both parties are at fault
the company in not keeping up with safety standards and the employee failing to provide vital
medical information that would have possibly lead to further precautions. Moreover in Yates v
Jones (1990) the court ruled that the casualty of a car accident would be awarded compensation of
personal injury only; but not for her drug habits even though the drug habit begun after her
accident.
There was no causal link between her drug habit and accident. Additionally application of sound
judgement with the but-for test found both a drunk driver and the defendant parked in the middle
of the road were both guilty of wrongdoing in March v E&MH Stramare Pty Ltd (1990) .
But in the final judgement it was apportioned that drunkenness was primary cause for the accident
and subordinate reason was ill judged parking of the defendant.

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The second principle of damage that has to be established in order to prove negligence is the
element of foreseeable damage, which according to legislation is the only part that is recoverable;
not all the damages caused by the breach of duty. Two cases establish this concept as seen in
Wagon Mound (No.1 and No. 2) (1961) where in case 1 even though the defendants carelessness
lead to an oil spill and the eventual fire damage; however the court ruled that it was not negligent
because no reasonable person could have predicted or foreseen that extensive fire damage that was
eventuated. However in case 2 the court ruled in favour of compensation for the plaintiff regarding
the fire damage of the owners boat, due to the fact that this was a reasonably foreseeable damage
and the risks were real and not far-fetched.

In order to justify that Fagan is liable for Brendan Yze injuries all three elements of negligent tort
that is duty of care, breach of duty of care and damages caused by the breach must be established.
In order to determine that duty of care existed there must be proximity and reasonable
foreseeability of the actions or inaction of Fagan. Even though Brendan is employed by Newbold
but they have been subcontracted by Fagan for routine maintenance; this means there is proximity
and closeness in a professional environment. On the job Brendan is an employee of Fagan and it
is their responsibility to provide a safe work environment and notify maintenance worker a detailed
history of the machine they are working on; which Fagan failed to do so. Moreover Fagan did not
adhere to professional standards of maintenance according to which they are required by law
replace faulty parts in the telescope and not recondition them. Furthermore their reconditioning
process was flawed because they did not use any original parts. Drawing conclusion in parallel to
Donoghue and Stevenson (1932) we can conclude that duty of care was owed to Brendan Yze
because he was in a recognised category of relationship, was in close proximity which means
actions of Fagan would directly and closely affect him and finally Fagan periodic actions of
omissions of replacement and proper reconditioning created a dangerous workplace any
reasonable person can predict it would likely lead to an accident and injury to anyone working
with the faulty equipment.
The second principle that has to be demonstrated in order to prove negligence is the breach of duty
of care. In this setting it is clear that Fagan has failed to adhere to legal standards of maintenance as
required by law- clear breach of duty of care. The fact that they havent had any incident previously
may be considered good fortune. Since Brendan was able an employee, a standard of duty of care
was owed to him because the risk associated is the same for any another maintenance worker.
This is in accordance to Paris vs. Stephaney Borough Council (1951) where the court dictates
special consideration comes in to play only for specific special conditions (i.e. one eyed
maintenance worker). In this job there is a high degree of risk since the platform about 20 meters
above the ground which means any accident would inflict catastrophic injuries. This opinion
complementary to case of Bolton vs. Stone (1951) and Hayley vs. London Electrical Board (1952)
where the court states that for high risk conditions further reasonable precautions must be
undertaken.

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Not only did Fagan neglect replacement but did not recondition with original parts this increases
the degree of risk and likely hood for an accident greatly; additionally since they had no further
reasonable safety measure in place i.e. like a safety net to break the fall it can be deduced that an
accident was reasonably foreseeable due Fagans malpractice and there is high degree of risk in
this work. Moreover Fagan failed to inform Brendan of their misconduct; if informed he could have
requested for further safety measure or been extra careful. Brendan performing his duty with the
machine switched on was not breaking any law- but he was acting in the interest of Fagan and
cant be held responsible for his method which has been incident free for many years.
Finally the last principle that has to be established in order to prove negligence is damage; which is
the existence of a causal link and foreseeable damage in those particular circumstances. Using the
but-for test and common sense that Fagan actions were ill advised and borderline illegal on many
levels - it is clear from the facts the lack of maintenance and flawed recondition process created a
volatile work setting; this lead to the malfunction which is the cause of an accident that injured
Brendan. The accident and eventual damage was for Fagans actions but if they maintained
required standards it would not have caused the accident nor the damage- there is clear causal link
between the malpractice, accident and Brendans injury. This conclusion is in parallel with Cork v
Kirby MacLean Ltd [1952],Yates v Jones (1990) and March v E & MH Stramare Pty Ltd (1990)
where the court deliberated using but-for test and common sense to justify the causal link between
the accident and ensuing damage.
Any reasonable person can conclude working with faulty equipment at 20 metres high with no
safety precautions would lead to serious injury. This is the case with Brendan, where the volatile
work conditions and a predictable fall due to any accidents has permanently injured him. Falls
often lead to paralysation a foreseeable outcome Brendan can no longer work and is suffering
daily due to his injuries caused by the Fagans ill actions. Moreover he is suffering from blurred
vision and migraines due to this accident he should be further compensated for his suffering. It is
common knowledge and recommended that all mechanical instruments have to undergo strict
maintenance regime; Fagan deliberately ignored proper maintenance scheme therefore increasing
the likelihood of an accident and any sensible person can surmise that the accident at that height
will most likely permanently injury the victim paralysation and other health complications were
eminently foreseeable. This conclusion is in accordance to Wagon Mound (No. 2) (1961) where the
court rules any reasonably foreseeable damage due to the defendants actions must be
compensated.

In applying the facts to this legal scenario Brendan was an employee and Fagans actions directly
affect him- therefore Fagan owed duty of care; their actions were in breach of responsible duty of
care- since the company failed to conform to accepted guidelines and recommendation creating a
volatile situation with high risk and predictable negative outcome. Beyond doubt it can be
concluded that there was no reasonable safety precautions in place and the company failed to
inform Brendan of their malpractices which is the only cause for the malfunction, accident and
eventual permanent injury. Therefore Fagan is liable for extensive injuries suffered by Brendan.

Ubayeda Shaqer

15975669

3. Solution 2: Four Step Analysis:


The area of law this dispute deals with is defence against the negligent claim. Specifically the legal
concept to focus on is the voluntary assumption of risk and contributory negligence - that is if the
plaintiff was aware of the risk or if their carelessness or actions contributed to the wrongful act
which lead to the accident and ensuing injury.

There are two primary defences a defendant may use against a negligent claim that is
1. Voluntary assumption of risk
2. Contributory negligence
These defence allows the defendant to avoid or limit the plaintiffs rights to recovery of damages
against a negligent claim. In order to prove voluntary assumption of risk two precedent must be
established that the plaintiff had knowledge of the risk and the plaintiff fully and freely consented
to the work even after this knowledge. This principle can be illustrated in popular contact sporting
events like Australian Football or Rugby where according to the rules athletes may be held to
voluntary assumed risk of any kind of accidents that may cause physical injury. But the rules cover
consent ordinary accidental injuries but the consent does not cover any kind of foul play or
negligent conduct during the game. These principle have been demonstrated in Morris vs. Murray
(1990) where plaintiff had full knowledge of the risk he was taking when flying with the
intoxicated pilot- therefore the court ruled this as a voluntary assumption of risk against negligence
and the defendant was not liable for any injuries. Further the same principle of voluntary
assumption has been used in the case of Insurance Commissioner vs. Joyce (1948) where the
plaintiff was not compensated because they had freely accepted a lift from a drunk driver.
Likewise this principle has been used to justify against negligence in Imperial Chemical Industries
Ltd v Shatwell (1965) where the plaintiff ignored all instructions and safety regulations during
testing that lead to injury; but was not entitled to any damages.
The second principle of defence can be used against a negligent claim is contributory negligence.
This legal principle states that a person whose negligent actions or conduct has contributed to the
accident and ensuing injury cannot claim compensation against another on negligence. However in
the case (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) establishes the
precedent that the court on an individual basis can reduce the award of damages against the
defendant by the percentage it finds the plaintiff has contributed to their own injuries. This
precedent has been used in numerous cases like Connors vs. The WAGR Commission (1992) and
Ingram v Britten (1994) where according the circumstances the court fairly divided reward or
blame according to the amount by which each plaintiff and defendant contributed to the negligent
act. In these cases the court takes in to account elements like the potential for injury or the
vulnerabilities of the party. This objective analysis has been used to determine the amount of
negligence in like Connors vs The WAGR Commission (1992) where the plaintiff was apportioned
80% of the negligence due to the fact that any collision would not likely to have damaged the
oncoming train but surely would result in the death of any person involved in an direct collision.

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In order to justify that the Fagan is not liable for Brendan Yze injuries or liable for a part of his
injuries the defence must constitute arguments for contributory negligence and voluntary
assumptions of risk. In order to determine that voluntary risk of assessment existed there must be
informed knowledge of the risk and fully voluntarily consenting to the work being aware of the
risks. However in this circumstances it is clear that Brendan had no knowledge or wasnt informed
of the practices of Fagan therefore there can be no scope of argument of consent. This conclusion
has been drawn in parallel to Imperial Chemical Industries Ltd v Shatwell (1965) where the defence
was only accepted because the plaintiff were informed and fully aware of the risk; nevertheless
they voluntarily chose to ignore the regulations. This is not circumstance for this case so no
voluntary risk assessment can be established against Brendan.
However a case for contributory negligence can be established. This is because according to the
facts of the investigation on the incident- has found that Brendan could have switched off the
machine when carrying out the maintenance work. Switching off could have reduced the chances of
accident. This opinion is complementary Contributory Negligence and Tortfeasors' Contribution
Act 1947 WA act and Ingram v Britten (1994) where the court ruled that the negligence was
primarily due to the recklessly driving of the tractor by the plaintiff 60% but defendant not
installing a safety equipment was secondarily responsible- 40% of the negligence. Drawing a
conclusion parallel to these finding even though Fagan did not carry out fiduciary duty of
providing a safe work environment and well maintained equipment (according to the law);
Brendans method of keeping the machine on during maintenance contributes to the negligence and
had increased the risk of the accident. Therefore Brendan could be held partly responsible for the
negligence that lead to his injury.

In applying the facts to this legal scenario an investigation found that Brendans process of
maintenance was unusual and inadvisable. Beyond doubt it can be concluded that Fagan
malpractice was the largest contributor to the negligent accident; however Brendans unorthodox
method may be apportioned in the negligence and increased the likelihood of accident therefore
should be partly held responsible for damages contributory negligence defence can be
established.

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4. References
Sources:
Turner, Chris 2013, Contract Law, e-book, accessed 31 March 2015 (Accessed April 2015)
Lecture Notes and Study Guides (Accessed March 2015)
Legal Cases:
Bolton v Stone [1951] AC 850
Cork v Kirby MacLean Ltd [1952] 2 All ER 402
Connors vs. The WAGR Commission (1992)
Donoghue v Stevenson [1932] AC 562
Haley v London Electrical Board [1964] 3 All ER 185
Insurance Commissioner vs. Joyce (1948)
Imperial Chemical Industries Ltd v Shatwell (1965)
Ingram v Britten (1994)
Jones v Bartlett (2000) 205 CLR 166
March v E & MH Stramare Pty Ltd (1990) 171 CLR 506
Morris vs Murray (1990)
Paris v Stepney Borough Council [1951] AC 367
Wagon Mound (No.1) [1961] AC 388
Wagon Mound (No.2) [1967] AC 617
Yates v Jones (1990) ATR 81