200909 – Enterprise Law Online Exam & Learning Guide - Law Assessment

Law Assessment

Case Scenario/ Task

The instructions (word limit, submission, etc, etc) for completing this exam are in the Learning Guide. Please read through those instructions before commencing your answers and also note any additional instructions and/or advice as posted in the Announcements or Discussion Board on vUWS.

Jack and Thea are a retired couple who have been booking their holidays through a small travel agent called Gail’s Travel for nearly 20 years. They have come to trust Gail’s advice about suitable holidays over the years – in particular because they know Gail usually takes the holidays herself before recommending them to clients. In June 2015, Jack and Thea visited Gail to book another holiday, and told her that they ‘want to see a bit more of the Australian desert before [we] get too much older …’. Gail suggested a bus tour to and around Broken Hill with Priscilla Tours Pty Ltd (‘Priscilla’). Jack and Thea were especially interested when Gail told them the tour visited a number of look-outs that had spectacular views over the desert. Although Jack and Thea were quite fit for their ages (88 and 82 respectively) they asked Gail about the amount of activity and walking on this tour. Gail checked the information and maps from Priscilla and told them they would be driven in the bus to each of the look-outs. Gail said that when she did a similar trip in that area there was almost no walking or stairs involved.

Jack and Thea decided to take the 10-day ‘Out Back of Broken Hill’ bus tour in March 2016. When Jack and Thea joined the bus tour in Sydney they were reassured to see that most of the other tourists in the group were around their age. Bob, one of Priscilla’s full time employees, was the tour guide on Jack and Thea’s tour. Although Bob usually took one of Priscilla’s other tours - the ‘Outback Adventure Tour’ - with much younger groups, he thought it would be nice change to take a different age group on tour.

Unusually, there were weeks of torrential rain around Broken Hill in March of 2016. Priscilla’s bus tour had to take a number of detours as roads were closed due to flooding, and as a result all the look-out visits had to be missed. Jack and Thea were very disappointed about missing the look-outs. They and several of the other tourists asked Bob whether there was anything else he could arrange that would allow them to see some of the desert views they had been looking forward to. On their last day in Broken Hill, Bob went out just before dawn to look for a suitable view, and came back to breakfast with the news that he had found a spectacular view ‘quite close’ to the hotel they were staying in. He offered to lead a group out after breakfast to see the view, and advised that there was a climb involved as the hill was ‘a little bit steep, but if you can walk up a staircase without help I think you should be alright’. Jack, Thea and many of the others agreed to go on the walk with Bob.

Unfortunately, the walk was steeper and longer than many of the tourists expected, and there were a lot of loose rocks on the trail leading up the hill as well as some very slippery sections caused by the rain. Bob, who is 32 and

very fit, had simply not noticed these hazards when he inspected the trail in the early morning light. The walk is also about 3km each way. Most of the other tourists gave up quickly and returned to the hotel, but Jack and Thea persisted as they were determined to see some views of the area and take photographs. Unfortunately, Jack slipped and injured his knee on the way down the hill and Bob had to carry him back to the hotel. Jack was not able to walk without help for the rest of the tour.

When they returned home, Jack and Thea went to see Gail, not to complain, but to let her know that this particular tour was not really suitable for people of their age. Gail was very upset as Jack and Thea are some of her favourite clients and she wondered whether she should have made it clearer to them that she had not actually taken this exact trip herself.

a) Several months have passed and Jack’s knee has not recovered. He may need a knee reconstruction. Is Priscilla Tours liable in negligence for Jack’s injuries? What, if any, defences could they rely on? What would you advise Priscilla to do differently in future? b) Although Jack and Thea have no intention of suing, Gail is now worried that she could be liable for negligent misstatement for recommending this trip to them. Could she be liable? What would you advise her to do, both now and in the future? Hint – you are not required to repeat the elements and principles of negligence in detail in this part – you can save space by summarising these and cross-referring back to your answer in a) for more detail – focus this part of your answer on the issues relevant to Gail’s advice instead.

Assignment

Issues

There are two important issues that are raised.

• Is Priscilla Tours liable in negligence for Jack’s injuries? If yes, then are there any defenses available? What Priscilla must do in future in order to avoid the situation?
• Whether Gail is liable for negligent misstatement for recommending the trip to Jack and Thea?

Applicable law

The law of negligence is an area of law which imposes liabilities on those defendants who does not cater their duties and results in causing harm to plaintiffs. In Donohue v Stevenson (1932), Lord Atkin has laid down the basic elements which must be established by a plaintiff in order to hold a defendant liable for negligence.

• Duty of care – The law establishes that whenever any defendant indulges himself in any action/omission, then he must make sure that no person is harmed because of his acts/omissions. However, the duty will only be imposed upon the defendant provided:

• The plaintiff is his neighbor, that is, the plaintiff and the defendant are so closely connected with each other that the acts/omissions will fall upon the plaintiff directly.
• That the implication of defendants acts/omissions must be reasonably foreseeable.

• Breach of duty of care – When the defendant does not cater with his duty of care then the same is considered to be breached. A duty is breached only when the level of care which is required in any given scenario is not complied with. For instance, in Mullin v Richards(1998), it was held that the level of care which is required for aged people and children are much more when compared with normal adults.
• Damages– Once a duty is breached, then it is necessary that loss is caused to the plaintiff, however, the loss should be the direct result of the breach and the loss so caused should be reasonably foreseeable by the defendant.

However, a defendant can be protected by availing the defenses. The same are:

• Warning notice – the defendant can prove that he has warned the plaintiffs of the resultant losses before the commencement of his actions by displaying the warning notices or he has personally told the plaintiff regarding the damage.

If the defense is proved, then, no liability can be imposed upon the defendant under the law of negligence.

• Contributory negligence – when the defendant and plaintiff both have contributed to the loss which is caused to the plaintiff. In such situation, the plaintiff has herself contributed and thus the loss which is caused to her will be reduced proportionately to the extent the plaintiff is indulged in the act of negligence.
• Voluntary non fit injuria – If the defendant can prove that the plaintiff has indulged in an action knowing the danger which is involved, then, the damage which is caused to the plaintiff is caused voluntarily by him and thus no liability can be imposed upon the defendant.

Apart from the law of negligence, there is another principle which requires analysis, that is, law behind negligent misstatements.

Negligent misstatements are those statements which are made by one party to another on the belief that such statements are true but in reality the same are false. The person who is giving the statements usually are experts in the field and advise is provided to a person who does not have the requite skills that are required. The basic elements to prove negligent misstatements are:

• That the defendant has indulged in tortuous act intentionally/negligently. Every defendant is under a duty to furnish advice in such a manner so that no loss is caused to the plaintiff. The advice must be given taking all reasonable care that is required. However, when the standard of care which is required while furnishing advice is not met then the duty is violated. The standard of care increases when the adviser is aware that the plaintiff is fully relying on the advise of the defendant prior taking any activity.
• There must be presence of special relationship amid the adviser and the plaintiff, that is, the adviser must be an expert in his field and the plaintiff has no knowledge of the same and thus is relying on the advised so furnished by the adviser.
• That actual damage is suffered by the plaintiff by relying on the advised so provided by the defendant.

Thus, an adviser must take all reasonable cautions while providing the advice to the plaintiff.

Application of law

Issue 1

As per the facts, Bob was an employee of Priscilla and was the tour guide for Jack (88 years) and Thea (82 years). The tour was around Broken hills of Australian Desert. The tour was to take place in March 2016 and was the time when there were weeks of torrential rain around the Hill and has caused flooding in the region. Bob advised a suitable view and specified that there is a climb involved which is a little steep. However, he further submitted that if one can take a staircase then the Journey is suitable for them.

In such scenario, it is submitted that Bob has a duty to provide safe Journey to Jack and Thea considering the journey involved steep hills. Also, the duty further increases considering the age of both Jack and Thea. Also, both Jack and Thea are the neighbors of Bob as any wrong analysis by Bon will directly impact them. Thus, there arose a duty if care upon Bob.

But, the duty is not fulfilled by Bob adequately as the walk was much steeper and longer as predicted by Bob. There were lose rocks, various slippery sections caused by rain which was overlooked by Bob as he was just 32 and was fit for such kind of journey. Thus, considering the age of Theo and Jack, the level of care that is required from Bob is not met and hence there is a breach of duty of care by him. Further, because of such breach injuries are caused to jack when he slipped and injured his knee.

Thus, Bob was certainly negligent in his actions.

However, Bob can take few defenses, such as:

• He can establish that it was Jack and Thea who themselves persisted to continue with the journey and thus has contributed to their own loss. Thus, the defense of contributory negligence can be raised in order to reduce his liability.
• He can also submit that he has already warned the group that the hill is steep and it was Jack and Theo who voluntary agreed for the climbing up of hill and thus there is a defense of voluntary non fit injuria.

Advice

In future, Priscilla must make sure that the journey which is undertaken fits the volunteers age and health. Also, if there is any risk involved, then, the same must be communicated to the volunteers prior the binging of the journey and clear warning notices must be issued to them.

Issue 2

Gail is a travel agent and is an expert in his field. Jack and Thea had taken an advice from him regarding the best tour. Jack and Thea highly rely on the advice of Gail as they deal with Gail from past 20 years and Gail himself takes the holiday prior recommending the same to someone else.

On the advice of Gail, Theo and Jack have taken a bus tour with Priscilla but the same was a disaster which even caused injury to Jack. Gail has advised that the tour is driven on bus and does not involve much walking.

It is submitted that, Jack and Theo highly rely on the expert advice of Gail and Gail was aware of the same. In such scenario, it is the duty of Gail to furnish advice with all reasonable care and skill so that no harm is caused to them. The duty further increases considering the age of Jack and Theo. Gail is aware that the trip recommended by him was not suitable for Jack and Theo however, she did specify the same to them. The level of care was not furnished by her while giving advice resulting loss to Jack and Theo.

Advice

It is advice to Gail that in near future she must always use a declaimer while furnishing advice so that his duty can be mitigated and exclusion can be created. Currently, she must settle the situation with jack and Theo and must compensate them for their loss.

Conclusion

It is concluded, that Bob is negligent in his actions as the duty of care which is required for Jack and Theo, considering their age, was not met by him causing loss to Jack. Thus, there is clear negligence on the part of Bob. However, Bob can take the defense of contributory negligence as both Jack and Theo agreed for the climb even knowing the fact that the hill is much steep.

Also, Gail should be held liable for negligent misstatements which are made to both Jack and Theo which ahs ultimately resulted in causing damage to them.