Person Breaches Related To Take Precautionsâ€Myassignmenthelp.Com

Questions: Whether Eagle Farm Racing Pty Ltd is liable to compensate for injury caused to Adair? Whether there is any vicarious liability of Griffith University towards the Black Midnight Owners? Answers: Introducation Various sections of Civil Liability Act 2003 deals with the issue of breach of duty, and these sections are section 9, 10, 11, 12, 13, and 15. Description of these sections is stated below: Section 9- according to this section, person breaches the duty related to take precautions against any risk of harm in case: That risk was of such nature that it was foreseeable in near future. In other words, person knew about the risk or ought to know about the risk. That risk was not insignificant in nature, and such person must in such position that in which any reasonable person would take precautions for the purpose of avoiding such risk. Section 9 also described that Court for the purpose of deciding whether reasonable person take any precautions against risk of harm, consider some important elements and those elements are stated below: Court determines the effect of such harm, which means seriousness of harm, and if care was not taken be person then probability of harm occurrence. Court also determines the social utility of the activity, and pressure on person taking care against any activity which creates risk of harm[1]. Section 10- according to this section any breach of duty and any proceedings which initiated on or after the period of 2nd December 2002 also include burden on reasonable person to take precautions against any risk of harm which is similar in nature. Section further stated that if person take any action later then such action does not affects the liability of person in any way, and such action also not considered as admission of liability by person for that risk[2]. Section 11- according to this section following elements must be present in the decision taken by Court for breach of duty: For the purpose of occurrence of harm, the most important condition must be breach of duty. For deciding breach of duty, Court also determines the scope of liability of person. It must be noted that if situations are exceptional in nature then some established principles are determined by Court like whether subsection 1(a) is satisfied by the person who conduct breach of duty or not, and if subsection 1(a) was satisfied by person then reasons for imposition of responsibility related to breach is determined by Court[3]. Section 12- as per this section, in every case burden of proof is imposed on plaintiff for the purpose of determining the liability in breach of duty[4]. Section 13- this section states the meaning of obvious risk, and states that it is the risk which arises in such situations that it seems obvious for reasonable person to determine such risk in such situations, and risk is also considered as obvious risk if it includes the matter related to common knowledge. It must be noted that even chances of occurrence of risk are low hen also risk is considered as obvious risk, and also when risk is not prominent, conspicuous or physically observable[5]. Section 15- According to this section, in case of obvious risk defendant is not liable towards plaintiff to warn plaintiff for obvious risk, but some exceptions are also there in which defendant is liable to warn plaintiff: If any type of advice or information related to such risk is asked by plaintiff from defendant, or duty is imposed by written legislature on defendant to warn plaintiff. In case any professional qualification is possessed by defendant, and while providing his professional services obvious risk related to death or personal injury immerged[6]. Case law Nagle v Rottnest Island Authority[7]can be used to understand the provisions and meaning of obvious risk. In this case, conundrum was highlighted by Chief Justice and he also established that if any person owns duty of care towards another person then he must take into account the possibility fails to take care of his or her own safety. As per the opinion of Chief justice, this stated proposition contravenes the modern society expectations, and it also relates with the consequences of economic nature. Chief justice also said that he was not able to push the boundaries because of his authority. These opinions of Chief Justice received the special attention of Chief Justice Spigelman's in case law Waverley Municipal Council v Swain [2003] NSWCA 61[8] and this case also recognize the importance of important elements in civil liability case. Application: In this case, staff members of Griffith University attended the racing event, organized at Eagle Farm in Brisbane. One of the staff members, named as Adair Devil drinks lot of glasses of champagne, and later climbs the racing perimeter fence because of encouragement by her peers. This fence play the role of protective barrier between the audience and racetrack, and height of this fence was 1.5 meters. She walked on the fence for number of meters but after that she fell on the race track because of overbalanced. She broke her leg by fall but did not get any injury because of horses, and later seeks compensation from the owners of Eagle Farm Racing Pty Ltd on the ground that they does not put any warning signal related to risk of climbing fence. In this situation, both section 13 and 15 is applicable because climbing the 1.5 meters high is considered as a situation in which risk of fell and gets injured is an obvious risk. Section 13 states that it is the risk which arises in such situations that it seems obvious for reasonable person to determine such risk in such situations, and risk is also considered as obvious risk if it includes the matter related to common knowledge, and section 15 states that in case of obvious risk defendant is not liable towards plaintiff to warn plaintiff for obvious risk. Therefore, Eagle Farm is not liable to warn the Adair for risk related to climbing the fence. Answer 2 In case when law impose the responsibility on one person for the actions of another person, then such liability is known as vicarious liability, and it must be noted that in this liability first person who commits misconduct is actually free from personal liability. Principles of vicarious liability are evaluates in the context of civil proceedings, but in case of criminal proceedings terms of this liability are considered as outside terms by commission. Vicarious liability is imposed by law on one person for the act done by another person, and person is liable even though he does not commit any fault at personal level. This liability arises only when there is any relationship exists between the person who conduct act and person on whom vicarious liability is imposed. Example is stated for this situation such as for the wrong acts of employee during his employment, employer is vicarious liable[9]. Case law Rose v Plenty [1976] 1 WLR 141 per Scarman LJ at 147[10], can be used to understand this situation. In this case, court consider the vicarious liability as policy device, and this device is used by court to extend the liability arise from commission of tort. Therefore, this liability is considered as public policy. This liability is evaluated in the context of principle of fairness, and as per this principle it is necessary to put obligation on person who put the person who commits tort in such situation, and not to the victim who is innocent and suffer damaged or resulting loss. This can be understand through example, employer is the person who appoints and trained the employee, and he put the third parties in the risk related to wrongful act of the employee, and because of this it is necessary to make the employer liable towards the third party who suffer injury from the wrongful act of employee. Application: In this case, staff members of Griffith University attended the racing event, organized at Eagle Farm in Brisbane. One of the staff members, named as Adair Devil drinks lot of glasses of champagne, and later climbs the racing perimeter fence because of encouragement by her peers. This fence play the role of protective barrier between the audience and racetrack, and height of this fence was 1.5 meters. She walked on the fence for number of meters but after that she fell on the race track because of overbalanced. When she falls on the race track, one of the horses named as Black midnight gets shocked from her presence, and from that day he is not able race again, and later owners of Black midnight seeks compensation from Griffith University. In this case, relationship exists between the person who conduct act and person on whom vicarious liability is imposed as Adair and Griffith University because Adair works for them, which means that that liability exists on Griffith University for the act of Adair. Queensland Law Reform Commission, Vicarious Liability, https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0008/372527/R56.pdf Accessed on 9th May 2015. References Nagle v Rottnest Island Authority [1993] HCA 76. Waverley Municipal Council v Swain [2003] NSWCA 61. Rose v Plenty [1976] 1 WLR 141 per Scarman LJ at 147. [1] Civil Liability Act 2003- S 9. [2] Civil Liability Act 2003- s 10. [3] Civil Liability Act 2003- s 11. [4] Civil Liability Act 2003- s 12. [5] Civil Liability Act 2003- s 13. [6] Civil Liability Act 2003- s 15. [7] Nagle v Rottnest Island Authority [1993] HCA 76. [8] Waverley Municipal Council v Swain [2003] NSWCA 61. [9] Queensland Law Reform Commission, Vicarious Liability, https://www.qlrc.qld.gov.au/__data/assets/pdf_file/0008/372527/R56.pdf Accessed on 9th May 2015. [10] Rose v Plenty [1976] 1 WLR 141 per Scarman LJ at 147.