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Aropa assignment 2

Mr Enola Gay was contracted by the Tohunga Council to desiccate a whale corpse and
thereby remove it from a public beach.

The issue raise in this scenario is did Mr Gay (the defendant) act negligently by not taking the
necessary actions or precautions to ensure that the general public and on-lookers were not
placed in any harm.
Negligence discusses the idea of owing a duty of care to those people who you can
reasonable foresee would be likely to be injured by your act or omission.

Mr Gay has a duty of care to act as a reasonable explosives expert and to make certain that all
risk factors are thoroughly investigated and minimised to ensure that a situation such as the
one in this case does not arise.
Mr Gay has breached his of duty of care by failing to exercise the degree of care necessary
which would be deemed appropriate in the given circumstances of a controlled explosion.
Mr Gay has acted negligently by uninforming the Tohunga Council of the risks that the
explosion could potentially occur. As a reasonable explosive expert he should have advised
the local council of restricting access to ensure that beach was not accessible to the general
public. Additionally, his miscalculation of the amount of explosive could be a key factor in
determining if his breach caused harm to the plaintiffs (which will be discussed later in the
document). Furthermore, is the defendant liable foe the type or kind of loss that a
reasonable person could foresee. the harm

Due to the wide spread damages caused by the miscalculations of the amount of explosives,
many users of the beach and on-lookers there is a number of potential plaintiffs each with
their own individual claims for damages including;

Bruce and Wendy: The increase in the amount of explosives may have caused a greater shock
waves, thus causing Bruce to fall of the boat lose the ring and Wendy finger to be blasted off.
If the defendant Mr Gay had not increased the amount of explosives, then would the
plaintiffs loss/damages still have occurred i.e. the but for test. Although, Mr Gay may have
an arguments based upon the plaintiffs placing themselves in a position of voluntary risk by
being at the beach and on the water at the time having knowledge that an explosion would

The audience and Charlie: Due to his negligence by not informing authorities and
miscalculation the safety of beach observers was breach. The defendant has a high duty of
care due to the nature of the act, this sufficient precaution and action must be taken place to
ensure the safety of people the general vicinity (proximate). The observers are most definitely
foreseeable, therefore the defendant ensure measure are taken place to ensure they are not
harmed this follows the neighbourhood principle from Donoghue v Stevenson which states
persons who a so closely and directly affected by my act that I ought to reasonably have
them (mind) when I (act). Charlie is also proximate and can claim for damages cause by
the act be the defendant totalling $15 000.

George: The council has permitted to the plaintiff to sell his kebabs for the day based on the
confidences of the defendant expertise, however is the defendant liable for the loss. The real
risk principle from Overseas Tankship v Morts Dock and Engineering (Wagon Mound)
state that the full extent of damages need not to be foreseen. In this scenario the plaintiff is a
foreseeable beach user, applying the neighbourhood principle as stated above, proximate in
geographic location and the defendant owes him as duty of care. Therefore, he would be

Palomla Promotion: The issue is can Palomla Promotion claim for economic losses. The
plaintiff uses the stretch of water as a source of income the risk to the plaintiff is foreseeable,
and proximate but it is difficult to determine if there is a duty of care imposed by the
defendant. However, this may be determined by using the eggshell principle which state
you take your victims as you find them. In this scenario the defendant may be liable for
damaged totalling $8000.

Knowing the particular dangers of explosives and their ability to capacitate and destroy
objects, the defendant, Mr Gay should have acted as a reasonable explosives expert and
informed the council of safety risks and dangers involved in this situation and further checked
this calculation. Thus, I believe he has acted negligently should be held liable for damages
stated above.