Issue: Did Jean-Don and/or the Channel W owe a duty of care to Samantha recognized by law? Law: (1) Reasonable Foreseeability Test:
An objective test- If a reasonable person has foreseen that defendant’s conduct will cause harm. Did plaintiff come within a class of people might possibly be at risk of harm by defendant’s actions? (Chapman v Hearse 106CLR 112; Swain v Waverley Municipal Council (2005)220 CLR 517) (2)Control and Vulnerability:
Was the defendant in a controlling position through resources, knowledge or legal duty?
(3)Proximity: Is there sufficiently close relationship between plaintiff and defendant? Application: Jean-don and Channel W owe Samantha a duty of care. Samantha, as a singer rather than a professional skater, it is foreseeable that she may possibly be risk of harm in such high-risk sports by the actions or omission of Jean-Don and Channel W. It is no doubt that Samantha has a physical proximity with Jean-Don, because her injuries occurred when she performed “double throw jump”. Regarding the Channel W, there is a causal proximity, which is normally reflected by an assumption by one party of a responsibility to take care to avoid or prevent injury. Here, Samantha signed a contract with the Channel, the contents of the contract indicates that the Channel W owes her a duty to take care of her avoiding injury. It is apparent that Jean-Don as her skate coach is absolute in the position of control. As noted above, Samantha who is a pop singer rather than a professional skater, is more likely lack of skating skills; therefore, she is extremely vulnerable in such high-risk sport. Issue: Did Jean-Don and/or the Channel W breach their duty of care to Samantha? Law: The s 9 of Civil Liability Act states general standard of care that is determined by balancing a number of factors. The risk of harm was foreseeable (s 9(1)(a)), and that risk is not insignificant (s 9(1)(b)). Whether a reasonable person in the position of Jean-Don would have taken precautions against the risk of harm (s 9(1)(c)). By virtues of s 9(2), the court should consider four factors: (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm (d) the social utility of the activity that creates the risk of harm. Application: A reasonable person in the position of Jean-Don and the Channel W would have known or ought reasonably to have known of the risk of harm caused by wearing a brittle skating boot while conducting a difficult skating act (s 9(1)(a) of CLA)). And such risk is not far-fetcher or fanciful and not insignificant (s 9(1)(b) of CLA)). Moreover, a reasonable person who is in the position of Jean-Don and the Channel W would have taken greater precaution against such risk of harm by considering such four factors: There was small and not insignificant, probability that Samantha would suffer harm if care were not taken in preventing her from conducting “double throw jump” with such extremely brittle skate boot. The potential consequences of falling down was serious injury, Samantha is unable to walk for 6 months and cannot work. The cost of making reasonable precaution was small and inexpensive to avoid the risk of harm. Jean-Don could either disagree Samantha chooses perform “double throw jump”, or choose a regular and traditional skate boot. Alternative, he could choose to inform the Channel W that there is high-risk of performing “double throw jump” by her, because Samantha did not have enough time to do training. However, he did not do that. The social utility of the TV series is to entertainment the audiences. Therefore, it is not relevant regarding the show. However, regarding the skate boots, the social utility is to improve its quality and technology on the basic condition of providing safety products. Issue: Did Samantha suffer harm as a result of the breach of...
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