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Assignment details
This assignment will be based on Negligence (Modules 3, 4 and 5). Negligence will not be re-examined in the final exam. The focus of the exam is on identification of legal issues that arise from common business scenarios and on conducting your business in a way that complies with any relevant legal requirements. You will be assessed on your ability to identify legal issues and to explain an appropriate business response to the situation.
Assessment tasks exist to help students learn and apply their knowledge. Grades exist to show how fully this goal is attained. This assessment task must be the student’s own understanding and effort. It is a compulsory assessment task.
Please note, in particular, there is a strict maximum word limit. Further, students are only allowed one submission via Turnitin. Make sure you upload your final version in a Word document.
QUESTION:
Charlotte and Louise, both sixteen years of age, were going home from school, catching the 3:30 train from Strathfield Station to Penrith Station, in Sydney. They had placed their school bags just around the corner of the entrance to the carriage, where there were two rows of seats facing each other. They were busy on their phones and happily chatting to other school children, particularly two boys.
Mary, a mature age university student, had nodded off to sleep in one of those seats, mentioned above. When the train pulled into Parramatta Station, she was jerked awake and hearing the train station announced, jumped up and went to get off the train. She fell over Charlotte’s school bag, which was at her feet. She landed heavily and put a tooth through her mouth and broke her right arm.
Whilst she was waiting in the emergency rooms at hospital, having had her arm set, she was asked the usual questions about allergies to drugs to which she told the attending doctor she was allergic to penicillin. The attending doctor, Dr Joyce, did not write down this information on her chart as he was very busy and had another seven patients to review before they could be processed and released.
On her release Mary was given two scripts to be filled – one was for strong painkillers and the other was for an antibiotic drug which contained penicillin, to fight a possible infection from her mouth injury. Mary had both scripts filled before leaving the hospital. She took her first dose in front of the pharmacist who filled the scripts.
She quickly experienced shortness of breath, dizziness and stomach cramps. She was admitted to hospital immediately. This was diagnosed as an allergic reaction to the medication she had been prescribed. After two days she was re-released.
Advise all parties as to their rights or liabilities in the law of negligence only.
Module 3: The law of negligence - accidents and mistakes
Module 4: Managing risk I - defences to negligence
Module 5: Managing risk II - negligent misstatement
Set text for the subject is:
Terry, A & Giugni, D 2016, Business and the law, 6th edn, Thomson Reuters, Pyrmont, NSW.
Solution
Facts and Issue
C and L kept their school around the corner before an entrance within a railway carriage. M while getting off the train hurt herself badly and broke her tooth and also the right arm, for slipping against the bags previously mentioned.
At the hospital, she informed the attending doctor J, that she could not tolerate penicillin. M was prescribed penicillin along with other painkillers; as a result she was suffered reaction as against the medicines prescribed.
So, the issue is whether, C, L, and J have liability towards M, to compensate the damage so sustained by her.
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Rule of Law
Tortious liability is enforceable as against the tortfeasor under the fulfillment of certain conditions. Prima Facie there must be an existing duty to take care, by the tortfeasor to the injured party or the aggrieved party or the party who suffered injury. The duty to take care must be breached, and for that breach, the claimant suffers the harm. So, to establish a breach, the risk must not be a foreseeable one, but there should be proximity as well as causation which becomes prominent due to the breach, and for that proximate cause, the victim suffered harm. On the other hand, Medical negligence is also prominent professional negligence which arises out of the breach of duty to take care of the patients medically.
Analysis
In the instant facts of the case, M collided against the bags kept in front of the gate on a train. So, to bring a claim of negligence as against the two girls C and L, M must establish that they owed her a duty to take care. Court in (Shire of Wyong v Shirt , 1980), held that in order to establish that there is a breach of duty to take care, it is crucial to identify that whether any other reasonable person if placed in the position of the defendant would have foreseen the risk coming on, which might involve an injury to the any other person. Again, on proving this, if it gets established that there was a foreseeable risk, and that was utterly ignored, which actually gave rise to the commission of breach, then it is important to establish, whether any other person in place of the victim, would have responded to that risk based on the probability and also on the frequency of the occurrences. Again, to establish breach by negligence one must satisfy the neighbourhood test, that is to say the relationship or the connection between the plaintiff and the defendant. Court in (ALLDRIDGE v MULCAHEY AND ANOTHER, 1950), held that even a driver has a responsibility towards the pedestrians and also to other drivers, but Court overruled and held that there was no negligence on the part of the cigarette seller, in (Mrs. Margaret Mctear v. Imperial Tobacco Ltd, 2005), when the plaintiff claimed that the cigarette seller was responsible for causing cancer to her husband. So, to establish negligence on the part of the defendant, there must be duty at the initiation. Again, to establish causation, one must satisfy the A defendant can only be held liable for harm in entirety as suffered by the claimant or the aggrieved party, if it can be proved that, if it was not the conduct on the part of the defendant, then the plaintiff would have suffered any harm was held in (Bonnington Casting v Wardlaw, 1956). So, there must be some material contribution on the part of the defendant so as to hold the defendant liable for the breach of negligence in the same meaning as was held in (Bonnington Casting v Wardlaw, 1956), but if that material contribution has increased the risk and hence the sufferance on the part of the plaintiff, then according to House of Lords, (Fairchild v Glenhaven Funeral Services Ltd , 2002), is enough to establish the connection between the defendant’s conduct to the suffered harm on the part of the claimant, but the situation based on this principle is quite unclear in Australia n (Bendix Mintex Pty Ltd v Barnes , 1997). But, if there is no evidence and that the causation cannot be established (Bennett v Minister for Community Welfare , 1992), then the damages as the remedy will lie in common law (McDonald v State Rail Authority , 1998). So, to claim the damages arising out of negligence on part of C and L, M must first establish that, they owed her a duty and their breaching that duty is the direct causation of the harm so suffered by her, due to which she broke her tooth and also an arm, and also that C and L have foreseen the risk (Chapman v Hearse , 1961), but it is the court’s discretion to determine whether, risk was foreseeable considering the minor age of the two girls in the instant facts of the case (Bolton v Stone , 1951), although greater risk to be suffered is also a determining factor for the foreseeability (Paris v Stepney Borough Council , 1951). So, the direct causation must be established so that Court can attach liability on C and L (McWilliams v Sir William & Company Ltd Arrol Limited , 1962), but on satisfaction that the risk was foreseeable to them (Overseas Tankship (UK) Ltd v Morts Docks & Engineering Co Ltd (The Wagon Mound No 1) , 1961), provided that, M took all the reasonable care to resist that harm from falling on her (Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd (The Wagon Mound No 2), 1967).
For the doctor, J to be held negligent, M, must establish that there was negligent advice based on which she suffered damage was held in (L Shaddock & Associates Pty Ltd v Parramatta City Council , 1981), but (Hedley Byrne and Co. Ltd. v Heller and Partners Ltd, 1964), opened the claims so that if professional advice is relied upon and then the loss is suffered, then there lies the claim for such damages (Campbell, 2016). But, Court in (Mahony v J Kruschich (Demolitions) Pty Ltd, 1985), held that, if the injury get exacerbated only due to the medical treatment is so given by the doctor, then the suffered victim will be eligible to claim from the doctor for the sufferance so sustained by the patient (Chapman v Hearse, 1961). In order to establish the existing duty of care of J, it can be defined as the responsibility where the doctor is to ensure that there are no further medical complications arising out of the present condition of the patient was held in (Fowkes v Parker, 1999). But, establish a claim as against J, M must establish causation, and must also prove that, the allergic reaction was solely due to the negligence on the part of the doctor or else she will fail to establish the claim (MAUREEN ANN PERCEVAL v NEWCASTLE MATER MISERICORDIAE HOSPITAL , 2000).
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ALLDRIDGE v MULCAHEY AND ANOTHER, 1950. HCA 31; 81 CLR 337 (HIGH COURT OF AUSTRALIA 1950).
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Bendix Mintex Pty Ltd v Barnes , 1997. 42 NSWLR 307 1997.
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Bennett v Minister for Community Welfare , 1992. 176 CLR 408 1992.
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Bolton v Stone , 1951. AC 850 1951.
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Bonnington Casting v Wardlaw, 1956. AC 613 1956.
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Campbell, I. 2016. The absence of negligence in Hedley Byrne v Heller. Law Quarterly Review.
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Chapman v Hearse , 1961. 106 CLR 112 1961.
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Chapman v Hearse, 1961. 106 CLR 112 1961.
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Fairchild v Glenhaven Funeral Services Ltd , 2002. 3 WLR 89 (HL 2002).
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Fowkes v Parker, 1999. NSWCA 442 (THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 1999).
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Hedley Byrne and Co. Ltd. v Heller and Partners Ltd, [1964] AC 465, [1963] 2 All ER 575, [1963] UKHL 4, 1963. 1 Lloyds Rep 485, [1963] 3 WLR 101 (House of Lords 1964). Retrieved from http://casebrief.me/casebriefs/hedley-byrne-v-heller/
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L Shaddock & Associates Pty Ltd v Parramatta City Council and 150 CLR 225 1981.
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Mahony v J Kruschich (Demolitions) Pty Ltd, 1985. 156 CLR 522 (HIGH COURT OF AUSTRALIA 1985).
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MAUREEN ANN PERCEVAL v NEWCASTLE MATER MISERICORDIAE HOSPITAL , [2000] NSWCA 47 (NSWCA 2000).
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McDonald v State Rail Authority and 16 NSWCCR 695 1998.
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McWilliams v Sir William & Company Ltd Arrol Limited and 1 WLR 295 1962.
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Mrs. Margaret Mctear v. Imperial Tobacco Ltd, 2005. ScotCS CSOH_69 (Scottish Court of Session 2005).
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Overseas Tankship (UK) Ltd v Morts Docks & Engineering Co Ltd (The Wagon Mound No 1) , [1961] AC 388 (1961).
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Overseas Tankship (UK) Ltd v The Miller Steamship Co Pty Ltd (The Wagon Mound No 2) and 1 AC 617 1967.
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Paris v Stepney Borough Council and AC 367 1951.
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Shire of Wyong v Shirt , 1980. 146 CLR 40 1980.
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