700216 Introduction To The Australian Legal System : Essay Fountain

Questions:

Write a case study that demonstrates an understanding of Tort Law, specifically negligence, while outlining the practical application of negligence to one media article only.

You must choose the article from the folder below that relates to your discipline.

Construction:

https://www.abc.net.au/news/2016-01-29/construction-company-fined-$80k-over-death-of-worker/7124158

Social Science and Policing:

https://www.abc.net.au/news/2019-02-01/indigenous-man-fears-for-his-life-during-alleged-police-bashing/10771870

Business:

https://www.abc.net.au/news/rural/2017-08-11/farmer-chemical-spray-drift-multi-million-dollar-payout/8781102 

Case Study Questions:

Your case study must address ALL of the following questions:

  1. Briefly describe the main aim/purpose of Civil Law.
  2. Provide a definition of both Tort Law and Negligence.
  3. Describe the three elements for establishing liability for the Tort of Negligence, with reference to at least one case authority.

Using the article from your relevant discipline folder answer the following questions:

          4.  Identify the name of the article and list all of the possible DEFENDANTS  AND PLATINTIFFS to an action for negligence in that article.

          5. IF there is only one defendant: 

Using the specific facts from the article, describe whether the three elements for negligence would likely be established against this defendant OR

         IF there is more than one defendant: 

  • Decide which defendant is most likely to be liable and
  • Using the specific facts of the article, describe whether the three elements for negligence would likely be established against this defendant.

           6.Consider your answer to question 5 above.

Using INDEPENDENT RESEARCH describe what the potential impact would be on the community (or the relevant industry) if the defendant were held liable for their actions in the circumstances described.  

 

Answer:

Introduction

The main purpose or objective of civil law is considered to protect the rights of the people by permitting those individuals whose rights have been infringed or who has been wronged to seek a certain kind of legal remedy that would often be in the form of monetary compensation. This would help in restoring them to a position they had been in before any wrongdoing (Teasdale 2017).

This paper discusses the civil liability relating to negligence and briefly discusses the definition of negligence along with the elements associated with proving negligence in the court of law with the help of cases. In addition to such it also discusses about the article relating to police brutality and the negligent behavior which caused certain injuries and harm to the individual subjected to such brutality and tries to apply the principles and the elements in order to prove negligence. In conclusion, it summarizes the points that have been discussed in the paper.

Discussion: Tort and negligence

Torts are considered to be civil wrongs which are committed by one party to another and such causes an individual to suffer certain kind of loss or harm. Any individual who is regarded as the claimant in a tort is considered to sue the other individual for damages or certain other relief. Torts are considered to be created generally by the common law however, there are statutory wrongs which also amounts to torts (Goldberg, Sebok and Zipursky 2016).

Negligence on the other hand, is considered to be the failure in order to exercise suitable or ethical ruled care that is considered to be expected in order to be exercised which would be amongst certain particular situations. It is the area of tort law which involves harm that is considered to be caused by the failure to commit any act and such would be a careless act due to extenuating or palliative circumstances. The core concept regarding negligence is considered to be that the individuals should be able to exercise reasonable care through their actions by taking into consideration the potential harm that might be considered to be foreseeable reason for other individuals as well as the property. If someone is considered to suffer any kind of loss due to the negligent behavior of another individual then the individual causing such harm can be sued for damages in order to compensate for the harm or the loss (Levmore 2019). It can be understood from the case of Donoghue v Stevenson [1932] UKHL 100.

 

The elements of Negligence

There are certain elements which needs to be established in the court of law in order to prove the claim of negligence. The plaintiff needs to establish before the court of law that there had been a duty of care by the defendant towards the plaintiff and such duty had been breached by the defendant. It can be observed from the case of Bolton v. Stone [1951] AC 850. The breach of such duty led to certain injury, loss or harm and due to such damages need to be provided by the defendant to the plaintiff as a result of such loss. It can be understood from the case of Mullin v Richards [1998] 1 WLR 1304. If these elements are not satisfied and proved by the plaintiff in the court of law then the defendant would not be liable for the negligence and the damages under the court of law (Barry 2017).

Negligent behavior of the police authority

The article was comprising of indigenous man who stated that he feared for his life during the time of police bashing on Australia Day in the year 2018 and it establishes that Carl Hoppner purported that the police officers had used certain amount of force which was considered to be excessive while he was in custody and this particular incident made him feel like an animal. This article had also stated that Carl Hoppner was considered to be jailed for headbutting as well as elbowing the arresting officers and spitting blood-filled saliva on another. During the time of sentencing it had been stated by Magistrate Alan Railton that the police had dealt with the man in custody Carl Hoppner extremely forcefully. There had been CCTV footage which also showed that the officers had kicked and punched Hoppner at the garage of the police station and he had also been taken from his cell by force. The documents provided during defence that was tendered in court was considered to refer to the enormous and massive power of imbalance between Hoppner and the police force that was also considered to be inclusive of the incidents which involved six officers as well as bystanders. Carl Hoppner was considered to plead guilty for the headbutting and the elbowing of the arresting officers along with spitting of blood-filled saliva on another subsequently after being arrested for intimidating his wife and for the aggressive as well as drunken behavior. In this particular article it can be established that if there is a potential case of negligence then Carl Hoppner would be the plaintiff and the police officers who had acted in a manner which was negligent as they kicked him and used excessive force would be the defendants who would be liable for compensation.

Whether the elements had been fulfilled

As per the article if there is a case relating to negligence then it would be upon the plaintiff or Carl Hoppner to prove that there had been negligent behaviour caused by the police officers who had used excessive force against him and they would be liable for compensation. Firstly, Hoppner would have to prove that there had been a duty of care towards him and such had been breached which caused injury or damage and due to such the defendants would be liable to compensate for the damages. The defendant who had used excessive force and kicked the plaintiff would be liable the most out of all the defendants (Abc.net.au. 2020).

Consequences or potential implications to the society

If the police authorities are considered to use excessive force and act brutally towards the offenders who are imprisoned then such would create a violation and a breach towards their duty as their duty involves taking care of the citizens and ensure that the individuals are safe. If they behave negligently then the individuals would suffer due to such negligence and it would create an impact in the society as the individuals would face difficulties in asking for assistance during times of peril. Therefore, as the member of law enforcement agency or the police force the officers need to act in a manner that would be responsible and in accordance with their duties.

Conclusion

Thus, it can be understood from the above discussion that the individuals should act in a manner that would help them to take care of other individuals as it is their duty to act in a manner or with certain care in order to avoid any kind of negligent behavior which would make the individuals suffer damages or injuries.

 

References

Abc.net.au. 2020. Indigenous Man Says He Feared For His Life During Alleged Police Bashing On Australia Day 2018 – ABC News. [online] Available at: <https://www.abc.net.au/news/2019-02-01/indigenous-man-fears-for-his-life-during-alleged-police-bashing/10771870> [Accessed 17 May 2020].

Barry, C., 2017. Statutory modifications of contributory negligence at common law. Precedent (Sydney, NSW), (140), p.12.

Bolton v. Stone [1951] AC 850.

Donoghue v Stevenson [1932] UKHL 100.

Goldberg, J.C., Sebok, A.J. and Zipursky, B.C., 2016. Tort Law: Responsibilities and Redress. Aspen Publishers.

Levmore, S., 2019. Richard Posner, the Decline of the Common Law, and the Negligence Principle. The University of Chicago Law Review, 86, pp.1137-1156.

Richards [1998] 1 WLR 1304.

Teasdale, J., 2017. Codification: A Civil Law Solution to a Common Law Conundrum.

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