Introduction
Negligence refers to the act of perfuming an activity that can not be done by any reasonable person or doing the reverse to cause pain to another person. This is definitely a violation of one’s right and hence a legal action should be taken for such a person (McDonald, B., 2007). As a branch of civil law called tort, a case may qualify to be regarded as negligence if an incident involves more than just careless conduct, and involves a combination of the concepts of duty and breach of a well established law. These are some of the grounds upon which a case can be based to determine if it is actually negligence and needs to be proved as an actionable case.
The case that involved Idrive Verywellindeed as a plaintiff against the petrol station owner as the defendant can qualify to be regarded as negligence. This is based on the fact that the defendant owes the plaintiff a duty of care and failed to conform to the required standard of care expected of him by the law. Besides, the action caused a direct injury and loss to Idrive. This makes this case to be negligence of what ought to have been done at the petrol station.
The owner of the petrol station failed to take a good care of the premise. Even if the spillage occurred accidentally, the owner of the station should have taken an initiative to clean it up immediately. If the spillage occurred three hour before the incident and no action taken, this is negligence (School of Law and Justice, February, 2012).
On the other hand, this can be regarded as negligence because it caused a lot of injury and losses to the plaintiff. As a result of the crush, Idrive suffered a great deal. He suffered a head injury that later put him into a more trouble. He lost his hearing, a misfortune that later jeopardized his excellent career that required excellent listening skills. He was also not able to play golf, his favorite sporting activity. This was indeed, a great loss to him.
Duty of care
For a claim to succeed, it must be thoroughly proved that there is a well justified duty of care claim by the plaintiff. Hence, the defendant must owe the plaintiff a duty of care. In order to soundly determine this fact, reference should be made to the 1932, Donoghue v Stevenson case. In this case, it was resolved that the injury must be reasonably foreseeable and has a close proximity (McGlone, F., 2009).
Therefore, according to this case, the duty of care can be well determined because proper focus is put on the foreseability of the negligence. It is true that the owner of the petrol station could reasonably foresee the possible chances of the occurrence of the accident with the subsequent losses and injuries associated with it. Hence, he could have taken the deliberate efforts to correct the anomaly before the crushing of the car.
Historical approach
It is also important to note that the determinants of a case can employ the historical test to help determine if a duty of care in this case. When doing this, a thorough reference should be laid on the House of Lords decision made on the 1932 Donoghue v Stevenson case in which neighborhood arose. The conducts of the owner of the petrol station caused a lot of injuries on Idrive, a neighbor.
At the same time, the defendant failed to take a reasonable care to avoid the occurrence of foreseen acts of or omissions that would cause a direct injury to Idrive. If he would have been cautious enough to clean the oil spillage immediately it occurred, Idrive would not have got the crush to get the injuries that seriously caused him a great loss.
Contemporary approach
When determining the duty of care for this case, this approach can equally be used. Developed by the high court in the 1990s, this is a shift from the traditional narrow approach that put a lot of emphasis on the reasonable foreseeing and proximity. Instead, it will majorly focus on establishing the extent to which the injury was suffered by the plaintiff. Because Idrive suffered a great deal, the cause of action exists in this case.
Was a duty owed in the circumstances?
Actually, the duty was owed in the circumstances leading to the occurrence of events that preceded this case. The defendant made a lot of omissions and knowingly opted to breach the degree of care required of him.
For sure, he failed to clean the oil spillage or put a warning notice to any motorist who might have passed by and fall a victim of that spillage. If he could have done this, the plaintiff’s car would not have crushed on the wall to cause him such injuries and the losses suffered.
Standard of care
Since the defendant owed the plaintiff a duty of care, it was essential to exercise it properly without breaching it at all. This would give the case a go ahead to the compensation stages. However, the defendant in this case owed a great duty of care because his acts directly caused an enormous injury to the defendant. As a result of the crush, Mr.Idrive suffered a head injury and lost his hearing senses. This made him lose his well paying job and ability to continue playing his favorite golf.
In addition, the defendant owes the plaintiff a great standard of duty of action because of the small amount of the opportunity cost expected in the cleaning of the oil spillage. Compared to the losses caused to the plaintiff, the cost of cleaning that spillage would be far much negligible (Trindade, F. A., 2007).
Lastly, the standard of duty of action owed to the plaintiff is considerably bigger since the defendant failed to conform to the established business regulations regulating the management of petrol stations. He should have cleaned the spillage immediately it occurred or informed the clients of a possible danger in case of contact with it. This is where he went wrong.
The reasonable person
With reference to the laws of negligence, this must not just be a real person. It can be a hypothetical individual who is considered to be in a possession of the appropriate intelligence, skills and knowledge in tackli9ng the matter at hand. The defendant qualifies to be regarded as a reasonable person since he was intelligent enough and possessed the relevant skills and knowledge in this case.
The defendant had an average intelligence. This means that he could make rational decisions regarding his actions that eventually led to the occurrence of the accident. Hence, it is upon the court to use average intelligence when handling this case. This is what will help the court to reach a sound judgment especially after considering him as an equally intelligent individual.
On the other hand, the defendant seemed to be an expert in the trade of petrol. However, his acts of negligence makes the judge to presume that he must not be in the possession of right skills that could put him in a safer position to make a rational decision that would not jeopardize the safety of his clients.
Guidelines establishing breach
In order to determine the breach of standard of care, the court will look at the probability of harm; the cost and opportunity of avoiding or reducing the occurrence of the risk and the conformity with the established standards (Stuhmcke, A., 2005).
However, the defendant in this case owed a great duty of care because his acts directly caused a great injury to the defendant. As a result of the crush, Mr. Idrive suffered a head injury and lost his hearing senses. This made him lose his well paying job and ability to continue playing his favorite golf.
In addition, the defendant owes the plaintiff a great standard of duty of action because of the small amount of the opportunity cost expected in the cleaning of the oil spillage. Compared to the losses caused to the plaintiff, the cost of cleaning that spillage would be far much negligible.
Lastly, the standard of duty of action owed to the plaintiff is considerably bigger since the defendant failed to conform to the established business regulations regulating the management of petrol stations. He should have cleaned the spillage immediately it occurred or informed the clients of a possible danger in case of contact with it. This is where he went wrong.
Was the Standard breached in the circumstances?
Of course the standards were seriously breached in the circumstances leading to this ordeal. This is actually because, the defendant failed to take all the necessary measures to prevent the possible occurrence of this foreseeable act. Instead of taking the necessary earlier precautionary measures to deal with this issue, the defendant never took any initiative to show his concern to his clients who really had a great vulnerability to the risk.
Sufficient connection in law
In deed, the above facts confirm that the plaintiff was owed the duty of care by the defendant. Hence, the occurrence of the injury is actually is sufficiently legally connected to the defendant’s omission acts. This qualifies this connection since it was the foreseeable consequence of the breach of conducts shown by the defendant in his actions.
As already explained, the only reasonable foreseeable aftermath of this action would be a car crush that would most likely (if not definitely) result into body injuries. Hence, the head damages with its associated losses are direct consequences of the risk that was caused by the irresponsible conducts of the defendant.
Causation
This simply refers to an action that can lead to the direct occurrence of an incident. In this case, causation is used to signify the acts of the defendant that actually led to the occurrence of the losses experienced (Mendelson, D., 2007). The major causation in this case is the spilling of oil around the petrol station and the subsequent neglect of taking any recommended action to clean it up to prevent the possible occurrence of any foreseeable risk(injury in this context).
Hence, it is true that it is the defendant’s acts of negligence, omissions and failure to take action that directly caused a head injury to Mr. Idrive, the plaintiff.
Remoteness
The term remoteness, as used in this context, addresses the question of liability. It helps to understand the relationship between the defendant, the damage caused and the bearing of the responsibilities. So, in this case, it is established that it is the defendant who caused the risks that led to a great loss to the defendants.
Hence, it is of course, the defendant himself who should bear the responsibility for all the losses suffered by the plaintiff. This is why he is seeking for a legal action in order to get an equivalent compensation for the losses suffered.
Contributory negligence
This is a type of defense that is applied in case the plaintiff is established to have failed to take care of their own safety. It can be used as a means through which the defendant may escape to bear responsibility especially if it is found that he was not solely responsible for the occurrence of the risk.
Contrarily, the contributory negligence is not applicable in this case. The plaintiff never participated in the occurrence of the risk because he stringently adhered to all the laid down precautionary measures. For instance, he was using the safety belt. This makes the defendant be sole bearer of responsibility since it is him who will cater for all the damages suffered by the plaintiff (Madden, B., 2008).
Voluntary assumption of risk
This situation arises when the defendant establishes that the plaintiff freely consciously and voluntarily accepts the risk. This may result from peculiar circumstances like a case that involves a drunken driver. If it happens, the plaintiff does not get ant compensation from the defendant.
Unfortunately, this can not arise in this case because the defendant was very okay at the time of the risk (Stewart, P., 2009). Hence, he can not accept to bear any responsibility since it is the defendant who is solely responsible for the occurrence of the risk.
Express exclusion of liability
This means that a person may exclude liability by the use of the declaimer notice or exclusion clauses. However, this can not happen in this case as had been done in the Woods v Multi-Sport Holdings Pty Ltd (2002) case. The plaintiff and the defendants can not sit together and come into such an agreement (Madden, B., 2008).
Expiration of time
This refers to the time limitation given to the plaintiff to take a legal action against the defendant from the time an action occurs. It is not limitless because, according to well laid acts, it expires. This varies depending on the nature of the case or a court decision (Davies, M., 2008).
The time limitation in this case is long because the plaintiff has more than three years to lodge his complain in the court of law. So, it means that this case can still be determined even if it is taken before a magistrate after tow years from the time the damages were suffered.
Damages and the ‘once and for all rule’
Of course, the defendant will have to pay a lump sum amount of money called damages to the plaintiff. This will be meant for a fair compensation as a result of the pecuniary and non pecuniary losses suffered by the plaintiff as a result of the negligence. According to the common law, once the lump sum compensation has been paid, the case is settled in compliance with the once and for all rule (Cooke, P., 2007).
In this case, the plaintiff suffered a combination of monetary and non monetary losses. This necessitated a fair compensation meant at indemnifying him and taking him back to his original financial position before the occurrence of then risk at the petrol station.
Types of loss recoverable
As a result of the defendant’s negligence, the plaintiff suffered a combination of pecuniary and non pecuniary losses. He suffered a great injury in the head and consequently lost his sense of hearing. At the same time, he suffered n economic damage by losing his well paying job. Besides, he must have used a lot of funds for medication purposes (Balkin, R., 2009).
Hence, the defendant is supposed to pay all the damages for all these damage caused to the plaintiff. The personal injuries on the head, loss of sense of hearing, loss of job and participation in the plaintiff’s favorite game means a great loss to him. Therefore, justice will only be served if he is fairly compensated.
Conclusion
Upon establishing the above facts, it inevitably comes out that the hearing for this case must proceed. Because of the extent of negligence that caused great monetary and non monetary losses to the plaintiff, the defendant will have no option rather than compensating him. Meaning, justice will only be served if this is done to give a just indemnity to the plaintiff.
References
Balkin, R. (2009). Law of torts (4th ed.). Chatswood, NSW: LexisNexis Butterworths.
Clarke, A. (2008). Torts: A practical learning approach. Chatswood, NSW: LexisNexis Butterworths.
Cooke, P. (2007). Law of tort (8th ed.). Harlow: Pearson Longman.
Davies, M. (2008). Torts (5th ed.). Chatswood, NSW: LexisNexis Butterworths.
Madden, B. (2008). Australian medical liability. Chatswood, NSW: LexisNexis Butterworths.
McDonald, B. (2007). Cases on torts (4th ed.). Annandale, NSW: The Federation Press.
McGlone, F. (2009). Australian torts law (2nd ed.). Chatswood, NSW: LexisNexis Butterworths.
Mendelson, D. (2007). The new law of torts. Melbourne, Vic: Oxford University Press.
Stewart, P. (2009). Australian principles of tort law (2nd ed.). Annandale, NSW: The Federation Press.
Stuhmcke, A. (2005). Essential tort law (3rd ed.). Coogee, NSW: Cavendish Publishing (Australia).
Trindade, F. A. (2007). The law of torts in Australia (4th ed.). Melbourne, Vic: Oxford University Press.
