Actions Lance and Cadella can bring against Parramatta Local Council
In the presented case study, the Parramatta Local Council may be accused of committing the tort of negligence against the cyclist Lance. It appears that the Council had strung the chain across the pathway and road crossing that led to the park entrance to prevent the motor cars from illegally entering the park space, but failed to set up
necessary precautionary warning signs and use colors that are easily visible to persons crossing the pathway. Therefore, the Council may be said to have failed to exercise its duty of care while performing its upkeep functions. This failure that directly resulted in the physical harm and injury to the Lance and indirectly emotional distress to Cadella. Each and every element of the claim for negligence will be considered separately one by one in the light of tort law and relevant case laws.
Negligence is defined by the Merriam Webster dictionary as the failure to exercise the level of care that a reasonably prudent person can be expected to have exercised in the like circumstances (Merriam-webster.com 2015). In tort law the idea behind the negligence principle is that a person shall exercise reasonable prudence and care while doing all his actions such that those actions shall not bring any harm to other people. The question that needs to be answered in this case is whether the head injury suffered by Lance is due to the negligence of Parramatta Local Council? Or did Lance failed to adequately safeguard himself from the foreseeable harm?
Lance can bring the claim for damages against the Council only if he can prove that the physical injuries suffered by him were as a direct result of the Council’s wrongful omission to exercise reasonable care and skill (Section 40, Civil Law (Wrongs) Act, 2002). The case is now evaluated with respect to the many elements found in the negligent claims. All of these must be proved by the plaintiff in order to secure damages.
1. Duty of Care
The first and foremost element that needs to be proved is that the Council had a duty to act and behave in a certain way to avoid any foreseeable losses. If the Council can be proved to be careless in exercise of its statutory powers it can be said to have breached the duty of care. Since it’s the responsibility of the statutory bodies such as highway authorities and road transport authorities to exercise its powers along with ensuring all types of injuries are prevented, hence there exists a duty of care for the Council to act in a certain way.
To elaborate this further, the element is broken into a threefold test as required by the Civil Law (Wrongs) Act, 2002 and as presented in English law case Caparo v. Dickman. It analysis follows.
Was the risk reasonably foreseeable?
Yes, because the Council was aware of the locality surrounding Macquarie Avenue and was aware that a wrongly placed chain or omission to place certain warning signs could result in a road side accident.
Was the risk significant and was there a relationship of proximity between the plaintiff and defendant?
Yes, any collision due to inability to see the chain or read sign boards could cause major accidents and injuries. Since the road and pathway intersected at the place of entrance of the park and the cyclist was riding in the immediate vicinity. A proximity relationship is present.
Will it be just and fair to impose the liability?
Apparently yes, because the injury seems to be a direct result of the omission of the Council as discussed in the following part.
2. Breach of Duty
Section 42 of the Civil Law (Wrongs) Act 2002 describes the standard of care which is required to be undertaken by the defendant ensuring the duty of care is not breached. It is defined as the level of care as expected to be exercised by a reasonably prudent person in place of the defendant and possessing all the information that the defendant ought to have known at the time of incident causing harm.
From the facts presented in the case scenario, it so appears that Council failed to take reasonable steps to ensure the safety of cyclists riding nearby. There is no evidence as to the placement of prominent sign boards warning the cyclists to slow down near the road intersection because of the barrier. It is also evident that the chain used as barrier to entry in the park was of the same grey colour as that of the road. A reasonably prudent person would use the easily noticeable colour such as red or blue.
3. Factual Causation and Contributory Negligence
Because of Council’s failure to exercise reasonable care, Lance was unable to see the chain until he was only about 10-12 feet away from it. The sudden application of brakes caused the cycle to skid and as a result he collided with the chain to rollover handlebars and fell down to the ground, causing major head injuries. Here’s an additional reasonable foreseeability test followed by considerations as to why the duty of care should be imposed as decided in the famous Perre v Apand (1999) case, to ensure the link between the defendant’s breach of duty and the plaintiff’s harm.
Whether the loss would have occurred without the Council’s breach of duty?
Possibly not. Because the failure to exercise reasonable care triggered the events that resulted in the eventual injury to Lance.
Was the plaintiff vulnerable?
Yes, as he was unable to take reasonable steps to protect himself. The chain approached him suddenly and he was unable to stop even after applying the brakes. This however, does not preclude the possibility of Lance riding at unreasonably high speeds.
Was plaintiff able to take reasonable steps to protect himself?
It appears that Lance did exercise reasonable caution while crossing the intersection by looking left and right for the possibility of cars passing across the road. He was also an experienced cyclist and aware of the possible consequences of his incorrect decisions. It appears that he was not expecting the chain barrier as it was not there the previous time he travelled through that route. The absence of any warning signs seemed to cause the incident. However, contributory negligence can be assumed if he was not wearing necessary cycling gear and helmet while riding at high speeds as per the Road Transport (Safety and Traffic Management) Act 1999.
Did defendant had knowledge that his omission would cause harm?
Obviously yes, since omission to display proper road signs can definitely cause such accidents.
If Lance did not took all possible safety measures and did not exercise reasonable care to protect himself from roadside accidents, his right to damages is not defeated, but he has simply caused contributory negligence by his e.g., omission to wear the helmet. In such case the court shall take into account the respective shares of the parties causing the harmful incident as it seems just and equitable thereto (Section 102 of the Civil Law (Wrongs) Act 2002).
Since plaintiff has suffered severe head injuries causing him to be admitted to hospital, the element of harm is clearly present. However, the emotional distress suffered by his wife Cadella cannot be presumed to be caused by the Council’s negligence and damages in this respect cannot be pursued.
Since all the elements are present, the plaintiff Lance can sue the defendant Parramatta Local Council for a claim against negligence and the resulting suffering and costs that flowed to the plaintiff. The courts in determining the outcome of the case will give regard to the risk of harm to the plaintiff. Whether Lance took all measures to minimize the risk of harm? If not, then how much risk was increased by his contributory negligence? In either case, the Council can be sued for the physical harm caused by him.
Legality of Defensive Clauses in The Invoices and The Actions against Smith’s Auto
The legality of the acknowledgment and defensive clauses states in the Smiths Auto’s invoice depend on whether they form the legally binding contract. A contract is simply an agreement that can be enforced under the law. Certain elements of a valid and binding contract must be present in the given scenario for these clauses to be enforceable under the law, else Andrew can challenge these and bring an action for damages against Smith Autos in the court of law. Following is the analysis of the general requirements of the common law that must be present in all contracts and whether they are present in the given scenario.
A concluded agreement must be present i.e., the offer must be given by one party and it must be accepted by the other. Here Smith’s Autos has offered Andrew to fix his car in return for the sum of money, which is impliedly accepted by Andrew by leaving his car at Smith’s office premises.
Parties must have intention to be legally bound by the contract. This means both parties should have knowledge of the terms they are agreeing to be bound by under the law. It so appears that Andrew had no knowledge of the acknowledgement and defensive clauses under the agreement that provided protection to the Smith’s against any wrongful damage or theft of the cars left at his premises. If Smith wanted such defenses to be legally enforceable it is necessary for him to bring these into the reasonable attention of customers (for example, by telling them verbally) instead of merely displaying it on a piece of paper that is hardly noticeable.
Consideration should be present. Each party to the agreement has agreed to provide the other party some benefit for performing his promise.
The terms of the agreement must be certain to enable simple comprehension of what the parties intended to perform and expect from the other party (Reuters 2014).
Reality of consent i.e., consent should be real and not forced or coerced.
Legal capacity of the parties – e.g., a person of unsound mind cannot enter into a lawful contract (Burnett 2001).
It can be said that Andrew did not intend to be bound by the condition stating that the repairs would be performed subject to the terms state din the invoice, since it was not brought to his attention. The way this statement was presented on the wall behind the counter makes it hardly noticeable let alone brought to the attention and read by the customers of auto repair service.
In the presented case study the auto repair dealer is attempting to reduce his liability for damages on the strength of the terms and conditions that are simply ignored by the customers. Smith Auto’s owner intended that his customers while signing the regular invoices take the responsibility of the risk and costs associated with the theft and damage to the car during repairs. Accepting the other terms of the invoice, according to the Smith Autos were tantamount to the acceptance of these supplementary terms and conditions by the customers.
The legal question that arises in this case is whether the terms stating the damage sustained by vehicles during the repairs or theft are to be borne by the vehicle owners can be considered as a binding contractual agreement. The Court of Appeal of Western Australia has held in the La Rosa v Nudrill Pty Ltd (2013) that business dealings and normal commercial practices can be considered as a contractual agreement depending upon the length of business relationship between the parties. Seven years’ time period is sufficient to fulfil this requirement, however the frequency of service provision (i.e., twice a year) seems inadequate.
The court in the same case also held that the terms and conditions written on the back of the invoice cannot be considered to be the part of binding legal contract between the parties. This is because, there is no proof that the customer would have actually read or was aware of or the terms were in his sufficient knowledge. Secondly, it is necessary for the customer to explicitly give acceptance to be bound by the terms and conditions state don the back of the invoice. And finally, the court stated that the invoice is merely a request for payment sent by the service provider to the buyer, after the services have been provided. A person cannot be normally expected to accept new terms and condition in respect of a contract for which services have already been performed. Hence the terms contained in the invoice, whether front or back to which the other party has not explicitly agreed cannot be considered a part of contractual agreement.
Moreover, the said exclusion clauses written on the invoice cannot be enforced under law because they seem to be onerous for the customers and solely favorable to the repair shop.
Another reason why Andrew can bring the action for damages against the Smith Autos is because the damage was caused by the negligence of the manager of the repair shop. He violated his duty to carry out repairs with due diligence and took the car for personal use.
Burnett, B. (2001). Australian Corporations Law. Australia: CCH.
Caparo Industries plc v Dickman, (1990) 2 AC 605.
Civil Law (Wrongs) Act, 2002
Graham Barclay Oysters Pty Ltd v Ryan (2002) HCA 54.
La Rosa V. Nudrill Pty Ltd (2013) WASCA 18
Merriam-webster.com, (2015). Negligence | failure to take the care that a responsible person usually takes: lack of normal care or attention. (Online) Available at: http://www.merriam-webster.com/dictionary/negligence [Accessed 16 Sep. 2015].
Perre v Apand, (1999) 198 CLR 180.
Reuters T, (2014). The Law Handbook: Your Practical Guide to he Law in New South Wales (13 ed.), Sydney: Thomson Reuters (Professional) Australia Limited.
Road Transport (Safety and Traffic Management) Act, 1999.