Elements of Negligence

Topics: Tort, Tort law, Duty of care Pages: 7 (2308 words) Published: April 3, 2013
Question 1
A Sydney tramway passenger was injured in a collision with another tram, which occurred after the driver collapsed at the controls.

The plaintiff argued that the collision could have been avoided if the tramway authority had fitted the tram with a system known as `dead man’s handle’, a system in use on Sydney’s trains.

According to my findings, Dead Man's Handle refers to an old train device: the dead man's handle. It was typically some form of switch that the driver would keep closed. Should he suffer a calamity - such as a heart attack - his hand would loosen and the switch would open, stopping the train automatically. The aim of the dead man's handle was to protect the passengers, even in the worst possible case.

A dead man's switch (or dead man's handle) is a device intended to take some action if the human operator becomes incapacitated in some way, a form of fail-safe practice. For example, most freight elevators and lawn mowers in some countries use a dead man's switch or a similar mechanism, causing them to respectively stop closing the elevator door or shut down if the switch is released. If a person faints while mowing the lawn, their hands will relax and the mower will shut off. A very common use is in a locomotive, especially those used on underground railway systems or other rapid transit systems. The driver is required to hold down the dead man's handle to keep the train running - if he is unable to do so, the train will brake and come to a stop. The recent inquiry into the Waterfall train disaster in Sydney, Australia found a number of flaws in the deadman's handle and related deadman's pedal: * the weight of an unconscious overweight driver appeared to be enough to defeat the deadman's handle; * the design of the deadman's pedal did not appear to be able to operate as intended with drivers of all shapes and sizes. * marks near the deadman's pedal indicated that some drivers were using a conveniently sized signalling flag to bypass the deadman's pedal. Hence, a more elaborate design of a dead man's switch requires the operator not only to keep the switch pressed but also to release it periodically, say, at least once every 30 seconds. Such a system is in mandatory use in the locomotives in some countries' railway networks (for example the "SiFa" (Sicherheitsfahrschaltung) of German railway locomotives). In many modern New York Subway trains, for example, the dead man's switch is incorporated into the train's speed control (on the R142A, the lever must be continually held in place by the train operator; because the lever is also used to both accelerate and stop the train, it must remain in constant use). Software versions of Dead man's switches are used (usually only by technically competent people, and not many of those) to perform such tasks as notify friends or delete or encrypt data. The non-event triggering these can be almost anything, from failing to log in for a week consecutively, to not responding to an automated email ping, to a GPS-enabled phone not moving for a period of time, or even just failing to type the right magic sequence within a few minutes of the laptop booting. The motivations vary depending on the individual needs. Someone in a police state may be much more concerned about locking up their data securely (or deleting it) while others may just wish to alert friends or the authorities by email that something may be amiss.

This would have stopped the tram and avoided the accident.

The device had been rejected by the tramway authorities because it was felt that it could cause drivers to become tired, irritated and inefficient.

There was no evidence of any similar device in use on two-man trams anywhere in the world.

Will the plaintiff succeed in his negligence claim? Explain your reasoning. Conclusion:
Judge’s decision ? ie plaintiff succeed in the case? ratio decidendi? Ratio decidendi means `reason for deciding’ and is capable of creating...
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