Tort Law Case Study

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 color as that of the road. A reasonably prudent person would use the easily noticeable color 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).