Wayne is walking along a footpath near a golf course. He gets struck in the eye with a golf ball. There were no barriers between the golf course and the footpath. The place where Wayne was hit about 100m from a tee (a tee is where players drive the golf ball). Wayne can no longer work as a surgeon and he brings wants to bring legal proceedings against the golf course. REQUIRED
Advise Wayne whether he will be successful in legal proceedings against the golf club?
Has the golf club breached its duty care to Wayne.
To determine if there has been a breach of duty the standard of care needs to be considered. The standard of care is set out in section 9 and 10 of the The Civil Liability Act 2003 (Qld). Section 9 sets out the general principles. These include, is it reasonably foreseeable that harm will be suffered if a person does an act or omission; is the risk of harm significant or insignificant; a reasonable person would have taken precautions.
In deciding whether a reasonable person would have taken precautions the following factors are to be considered: What is the probability that harm will be suffered if precautions are not taken; what is the seriousness of the harm; what is the burden of taking the precautions (how substantial is the burden compared to the risk of harm); What is the social utility of the activity generating the risk. These are the questions presented by section 9 of the Act.
These principles have been derived from the Common Law. Cases such as Donoghue v Stevenson are particularly relevant. Donoghue was the case where Lord Atkin developed the ‘neighbour test’. The neighbour test asks “who should I have in contemplation as being someone that will suffer harm if I do a particular act or omit to perform a particular act”. If someone will suffer harm from my actions or inaction and if it is reasonable that I have them in contemplation then I will be liable if they suffer harm. Other cases such as Pollard...
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