Slams

Topics: Tort law, Tort, Duty of care Pages: 7 (1893 words) Published: October 9, 2013
SLAMS Workshop
October 2013
Problems and Suggested Answers

PROBLEM 1

Jim drove his wife, Betty, to Southern Cross Station, so that she could catch the Melbourne-Sydney express, a special service operated by InterUrban. She was planning to spend a week in Sydney visiting friends.

Having arrived at the station, Jim carried Betty’s luggage on board the train. They had just stepped into the carriage, when the train driver announced over the intercom that the Melbourne-Sydney express would be departing in one minute and that any non-passengers should leave the train immediately. However, neither Jim nor Betty heard the message because of a fault in the carriage’s loudspeaker.

While they were saying their good-byes the train started to move. Startled, Jim ran down the corridor to the carriage door, swung it open and jumped on to the platform. He fell and sustained a compound fracture to his leg and lacerations to his arms and face. He was taken to hospital and spent two months in rehabilitation. His recovery was delayed because of a hospital-acquired infection.

Betty witnessed Jim’s fall, but did not find out about his injuries until after she arrived in Sydney. She returned home immediately and spent every day in hospital by Jim’s side, feeling partly to blame for his injuries. She consequently developed a mental illness, suffering anxiety and depression, and had to take six months’ leave from work.

REQUIRED

Advise Jim and Betty as to their common law rights.

SUGGESTED ANSWER

This problem deals with the tort of ordinary negligence, concerning whether InterUrban is liable in damages to Jim and Betty.

Jim’s claim:

To prove InterUrban was negligent, Jim must, on a balance of probabilities, show the following:

1) a duty of care was owed to him. Under Donoghue v Stevenson, this is shown by fulfilment of the ‘neighbour test’ that it was reasonably foreseeable that InterUrban’s omission to effectively warn of the train’s departure would be likely to injure him.

As non-passengers may be on the train, it is reasonably foreseeable that allowing the train to depart without warning would give rise to the risk of non-passengers attempting to get off the train and in so doing injure themselves.

The case is similar to Caterson v Commissioner for Railways where the court held that an event like this and the harm suffered were reasonably foreseeable.

Some analogy may also be made to cases of recognised duties of care relevant to the facts, eg occupiers owe a duty of care to entrants because of their control over the premises (Australian Safeway Stores v Zaluzna).

Section 48 of the Wrongs Act 1958 (Vic) defines negligence as ‘failing to take precautions against a risk of harm’. This section sets out the elements for determining a duty care. These include whether the risk was foreseeable, was not insignificant (defined as “not far-fetched or fanciful”) and where a reasonable person would have taken precautions.

The above principles suggest that InterUrban owes Jim a duty of care.

2) there was a breach in the standard of care: did InterUrban act as the reasonable person in the defendant’s position (here, as the reasonable train operator)? To assist in the determination of this issue, the following factors may also be considered: (a) the likelihood of the risk of injury (Romeo’s case and Bolton v Stone) (b) the seriousness of the consequences (Paris v Stepney Borough Council) (c) compliance with usual practice (Mercer’s case)

(d) the cost of eliminating those risks (Caledonian Colleries case).

The likelihood of such injury is arguably very high, given that the carriage door could be opened while the train was moving. Warnings and safety devices are common practices in modern public transport. The cost of eliminating the risk would not be prohibitive, nor would it outweigh the benefits achieved in reducing the risk. Taking into account all these factors,...
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