Friday, December 6, 2019

Case Study of Horne v

Question: Discuss about the Case Study of Horne v Queensland. Answer: Horne v Queensland [1995] Representing the plaintiff in this case Facts of the case The plaintiff, Yvette Sonja Horne, was 13 years old on 11 December 198, when she suffered serious injuries in the lower part of her body as she fell off her bicycle on the road in front of the rear wheels of a large semi-trailer that passed across her lower part of the body. She was riding on a bicycle, from her Aspley State High School to the Cooper Tennis courts that was located at some distance from the school, when she met with the accident. The State of Queensland is the first defendant; the driver who was driving the trailer, Lyall Norman Boettcher, was the second defendant and the owner of the large semi-trailer, Finney Bryce transport Pty Ltd was the third defendant in the case. The State of Queensland is subject to legal proceedings on the ground that it failed to exhibit reasonable care and was negligent towards the children under the responsibility of Aspley State High School (Foley and Christensen 2016). The school was negligent in allowing the children including the plaintiff to ride a bicycle to the Tennis courts because the road that pupils required to travel posed a danger to the cyclists of plaintiffs age, in particular owing to the heavy traffic on that road. Issue Whether the Aspley State High School breached duty of care Whether plaintiff was contributory negligent Whether the driver and the owner of the semi-trailer liable for negligence Arguments of the plaintiff The plaintiff contended that the driver of the semi-trailer was negligent as he failed to stop the vehicle even after he noticed that the plaintiff was riding the bicycle downward in front of his vehicle. Even the prime mover of the vehicle and the entire attached semi-trailer had passed the plaintiff safely before she actually fell off the bicycle in front of the rear wheels of the semi-trailer. The plaintiff further stated that there was evidence with respect to the negligence on part of the school, the fist defendant, as the school authority failed to take reasonable care and precautions to ensure that the children, especially children of plaintiffs age did not ride bicycles from school to the Tennis courts as the road they needed o travel posed danger for the children (Chase and Miller 2016). The plaintiff further contended that the mother of the plaintiff was assured by the school authority that children going to the tennis courts would travel in a group with a teacher or under the supervision of the teacher or any other authorized person of the school. On the day of incident, the first defendant told the students to make their own way to the tennis courts and their roll call shall be called at courts (Brake 2014). The friend of the plaintiff, Connie Miles, suggested the plaintiff to use a bicycle left at the school by another girl and ride to the courts. The plaintiff contended that as she proceeded down the hill behind her friend she saw the prime mover and semi-trailer as it was overtaking them. The plaintiff realized the default in the braking system of the bicycle and collided with her friends bicycle. She flung off her bicycle under the wheels of trailer. The plaintiff stated that she faced difficulty while controlling the bicycle just before the collision (Abraham 2017). Arguments of the defendant The second defendant stated that the plaintiff had noticed the semi-trailer when it was about two meters from her bicycle. He stated that he heard a slight noise and when he glanced in his rear vision mirror; he saw the plaintiff and her bicycle going under the back of the trailer. He stopped the vehicle and provided necessary assistance to the plaintiff and her friend. The second defendant contended that the drivers side wheels of the prime mover and semi-trailer were very close to the white line in Beams road that segregated the traffic travelling towards Gympie road. The second defendant stated that he saw two children riding bicycles in the front and he observed that the bicycle of the plaintiff was unstable or unsteady as the bicycle was too big for the plaintiff and that there was no indication that the plaintiff would swerve to her right more than 1.7 meters as the vehicle was proceeding past the plaintiff extending 2.4 metres from the centre line (Ryan, Callaghan and Large 2015). Judgment of the Trial court After perusing the contentions of both the parties to the suit, the court based its judgment on the following reasons. Firstly, the court considered that since the accident had taken place long ago, more than 9 years ago, therefore the court treated the reliability of the plaintiffs and her friends recollection relating to the cause of the injury with some reservation. Secondly, with respect to the issue relating to the fact whether the first defendant was liable for committing negligence against the plaintiff, the court considered the fact that the Aspley High School was accountable for ensuring that children are lead to the Tennis court under the supervision of any teacher or any authorized person. Apparently, on enquiring about the travelling that was to take place from school to the Tennis court, the mother of the plaintiff was assured that the children shall be led by a group of children under the supervision of the teacher. Thirdly, as per the contention made by the defendant that the bicycle was too big for the plaintiff and that it was unstable owing to the default in the braking system of the bicycle, the court preferred to rely on the evidence provided by the police officers relating to the condition of the bicycle and the evidence relating to the facts about the occurrence of the accident that was recorded by the police after interviewing the plaintiff, her girlfriend and the defendants (Spamann 2016). The court relied upon the evidence of the police officer under section 18 and 101 of the Evidence Act. Fourthly, in regards to the negligence alleged against the second and third defendant, the court accepted the fact that Beams road was a dangerous road especially or people riding bicycles after the fact were investigated by constable. The court did not accept the fact that the second and third defendant failed to exhibit reasonable precautions and care to avert the injury that was caused to the plaintiff (Hill 2015). The court based this statement on the evidence that while passing the plaintiff and her friend the side wheels of the prime mover and semi-trailer were very close. The distance between the plaintiff and her friend and the prime mover was a distance of 4.2 metre and the trailer being 8 ft wide, the court asserted that, the second and third defendant could not be said to be negligent. Further, the court accepted the contention of the second defendant that there is no further evidence that the second defendant was rash driving or travelling at a fast speed. Fifthly, with respect to the issue whether the first defendant was negligent for breaching a duty of care that it owed to the plaintiff being a student of the Aspley State High school, the court is of the opinion that the school authorities were liable for committing a breach of the duty of care by permitting the plaintiff to travel from school to the court during the time she was under the authority of the school. The school was aware of the location of both Aspley school and the tennis court and knew that possibly some students might ride their bicycles to the court on Beams Road which was taken by the plaintiff and her friend. Sixthly, the court also considered the fact that on the day when the plaintiff met with the accident, the school advised children to choose their own way to the Coops Tennis Centre which implied that both cycling and walking were suitable means of travelling. The children were not supervised by any teacher which establishes the fact that the school failed to exercise reasonable care and breached its duty towards the plaintiff (Barry 2017). Although the first defendant contended that walking would have been a safer means than riding which would have been a sensible route for mature people in the situation of the plaintiff, but it must also be considered that the plaintiff was immature at her age and under the influence of peer pressure she agreed to ride a bicycle of a bigger size with defective braking system. In order to safeguard the children from avoidable known risks while they travelled from school to the court, it was the responsibility of the school to guide the children to walk to the court under the teachers supervision instead of riding bicycles on dangerous traffic ways. The statement of the court that the school authorities were negligent in fulfilling its duty of care is supported by the authorities relating to the obligation of school authorities, referring to Geyer v Downs Anor [1976-77] 138 CLR 81 and Williams v Eady [1893] 10 TLR 41 at p.42 which clearly defined the duty of a schoolmaster towards the students. It states that the schoolmaster was bound to exhibit care towards his boys just like a careful father would take care of his boys. Seventhly, with respect to the question whether the plaintiff was guilty of contributory negligence, the court stated that it was obvious for a 13 year old school girl who was used to riding bicycles to detect that the bicycle she was riding had defective brake system. The evidence suggests that the condition of the bicycle resulted partly from the collision between the bicycle of the plaintiff and her friend and partly due to the lack of experience and care on part of the plaintiff (Antieau 2016). Eighthly, the court considered the fact that the plaintiff continued to the accident spot riding her bicycle that was large and with defective brake system indicated her lack of care and maturity for her own safety. The court based this statement on the judgment observed in Lynch v Nurdin [1841] 1 QB 29 which stated that contributory negligence on part of a child refers to the failure to exercise the care that is reasonably expected form an ordinary child of the same age. Lastly, the court divided the responsibility between the first defendant and the plaintiff where the plaintiff shall borne 25 percent of the responsibility for contributory negligence and the first defendant shall be liable for 75 percent of responsibility for negligence. The plaintiff was awarded with damages under the Griffiths and Kerkemeyer head of damage. Decision of Appellant court The judgment apportioning negligence against the appellant was set aside and the plaintiff was awarded the cost of the appeal. Critical analysis of the decision The court accepted the contention made by the second defendant that the bicycle was too big for the plaintiff and seemed to be unstable or unsteady. Therefore, the court was satisfied on the fact that cause of falling off the bicycle was either the inexperience of riding on a bicycle or the default in the braking system in the bicycle of the plaintiff. Further, the court rejected the contention of the plaintiff stating that the second defendant should have stopped the vehicle when he noticed that the plaintiff seemed unsteady. This is because the plaintiff did not do anything that would have caused the second defendant to halt his vehicle before he could come in contact with the plaintiff. Furthermore, Beams road being a busy road, the second defendant had other vehicles bend him and it seems unreasonable to expect a semi trailer carrying 20 tons of paper to halt the vehicle. Moreover, there was no indication that the presence of bicycles would have led the second defendant to forese e that is vehicle would pose a danger to the plaintiff and her friend. On applying Lynchs case, the court considered that the plaintiff was 13 years old and was an intelligent girl that is evident from her school reports. The evidence suggests that plaintiff was aware of the difficulty she experienced in bicycling before she reached at the place of injury. The court concluded that the injury was the outcome of the immature and foolish conduct that resulted from the negligence on part of the first defendant. Hence, the plaintiff was partly responsible for the injury. The appellant made an appeal stating there was no contributory negligence on her part and claimed damages for the need for future care. The appellant court held that the trial judge did not provide an precise evidence as to when the appellant became aware of the defective brakes or no evidence that she knew about the defect before commencing the ride. Further the appellant held that she was able to exercise some control over the speed by using the front brake and the pedals. Furthermore, the size of the bicycle was said to have caused the injury but there is no evidence when the appellant realized that the size of the bicycle obstructed her efficient control over it. Therefore, the evidence failed to establish that a 13 year old should have detected the defect in the brake Reference List Abraham, K., 2017.The forms and functions of tort law. West Academic. Antieau, C.J., 2016. Procedural Requirements and Shared Liability.Antieau on Local Government Law, Second Edition,3. Barry, C., 2017. Statutory modifications of contributory negligence at common law.Precedent (Sydney, NSW), (140), p.12. Brake, D.L., 2014. Tortifying Retaliation: Protected Activity at the Intersection of Fault, Duty, and Causation. Chase, O.G. and Miller, H.G., 2016. Law of Negligence.New York Practice Guide: Negligence,1. Cusimano, G.S. and Roberts, M.L., 2016. Contributory Negligence and Assumption of Risk.Alabama Tort Law,1. Foley, M. and Christensen, M., 2016. Negligence and the Duty of Care: A Case Study Discussion.Singapore Nursing Journal,43(1). Geyer v Downs Anor [1976-77] 138 CLR 81 Goudkamp, J. and Nolan, D., 2016. Contributory negligence in practice. Goudkamp, J. and Nolan, D., 2017. Contributory negligence on appeal. Hill, L.L., 2015. The Litigation Privilege: Its Place in Contemporary Jurisprudence. Lynch v Nurdin [1841] 1 QB 29 Ogden, B.G. and Hylton, K.N., 2016. Incentives to Take Care Under Contributory and Comparative Fault. Ryan, C.J., Callaghan, S. and Large, M., 2015. The importance of least restrictive care: the clinical implications of a recent High Court decision on negligence.Australasian Psychiatry,23(4), pp.415-417. Spamann, H., 2016. Monetary Liability for Breach of the Duty of Care?.Journal of Legal Analysis,8(2), pp.337-373. Williams v Eady [1893] 10 TLR 41 at p.42

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