Write My Assignment FREE

Stage 1

Legal Studies

St George College

Folio 2 – Development of the Common Law

Task

You are to complete both parts of the assignment to trace the development of the law of negligence through the common law.

In Part 1 you will examine the case of Donohue v Stevenson (1932) and Wyong Shire Council v Shirt (1980)

In Part 2 you are to outline the rules of departure from precedent.

In Part 3 you then apply negligence cases to a hypothetical case.

Part 1

Read the Donohue v Stevenson 1932 and the Shirt Case 1980 and answer the questions that follow.

THE SNAIL IN THE BOTTLE – OR WAS THERE?

AN ACCOUNT OF DONOGHUE v STEVENSON

THE FACTS

May Donoghue, a single mother forced by poverty to live in her brother’s flat in Glasgow, Scotland, travelled by tram to the nearby town of Paisley to meet a friend. It was late on Sunday, August 26, 1928. May met her friend at the “Wellmeadow Café”, owned by Mr. Francis Minghella, where her friend ordered a “Scottish Float” for May and a “Pear and Ice” for herself. It is not clear whether the friend was male or female. The “Scottish Float” consisted of ice cream in a glass and a bottle of ginger beer that was to be poured over the ice cream.

The bottle containing the ginger beer was of brown opaque glass and bore the legend, “D. Stevenson, Glen Lane, Paisley.” Mr. Minghella poured some ginger beer into the glass and May gratefully drank it. Her friend refilled her glass and this time May claimed she saw what appeared to be a partly decomposed snail emerge from the bottle and drop into her glass. She claims she immediately felt ill and stated that she subsequently had to visit a doctor three days later and again a few weeks after that.

THE LEGAL ISSUE

Mrs. Donoghue had a problem. She wanted to sue but it was not clear who was a likely defendant.

What about Mr. Minghella?

Mrs. Donoghue had not bought the product so there was no contract between her and Mr. Minghella. At the time, the Doctrine of Privity of Contract was the relevant legal principle, which said only the parties to a contract could take legal action to sue, or be sued. Therefore, there was no case under the law of contract. Neither had Mr. Minghella been negligent. He could not have seen the contents inside the opaque bottle and he could not have been expected to previously open every sealed bottle to ensure it was free of contaminants.

What about the manufacturer, Mr. Stevenson?

In 1928, the issue of “duty of care” had not been resolved in cases where a person harming another was geographically distant from the victim. Mr. Stevenson was no where near the “Wellmeadow Café” when the snail supposedly emerged from the bottle. There was no precedent for courts to act upon therefore Mrs.Donoghue could find no relief.

THE LEGAL PROCESS

Mrs. Donoghue had a persistent lawyer who would not be dissuaded when lower courts failed to see a “cause of action”. Subsequent appeals through the Scottish courts proved fruitless. There was simply no precedent to help Mrs. Donoghue. Interestingly, the Scottish courts never had a “trial of the facts”. All hearings were to do with the legal right of Mrs. Donoghue to raise the matter for trial.

The only appeal left was to the House of Lords – the Law Lords. But Mrs. Donoghue was a poor shop assistant and could not afford to lodge the necessary securities in case she lost her appeal. She first had to be declared an “impoverished person”, “in forma pauperis”. She was granted this status and the case came before the Judicial Committee of the House of Lords on December 10, 1931. Five judges heard the case, Lords Atkin, Buckmaster, Macmillan, Thankerton and Tomlin. They were not yet deciding on the facts. They were determining whether she had a right to a trial at all! On May 26, 1932, almost four years after the fateful day, the judgement was given. By a majority of 3 to 2 in favour, the court decided that there was indeed a cause for action for Mrs. Donoghue. The ruling introduced the “neighbour principle” to the tort of negligence. Manufacturers, (and eventually others), were deemed to have a duty of care to anyone who might reasonably and predictably be harmed by exposure to their products.

THE DOCTRINE OF PRECEDENT

Both parties used previous decisions in their arguments.

Winterbottom v Wright 1842

This case was used by the respondent, Mr. Stevenson. Here, a coach driver for the Post Masters General Department had been injured when a wheel collapsed. The driver, Mr Winterbootom failed in his claim against the coach builder because he was not a party to the contract in the purchase of the coach. He was merely an employee of the government department who had bought it.

George v Skivington 1869

This case was used by the appellant, Mrs. Donoghue. Mr. George had bought some hair wash for his wife and had made it clear that it was for the use of his wife only. When she was injured by the improperly manufactured hair wash she sued mr. Skivington, the manufacturer. In this case she won the case even though she was not a party to the contract because the court found that the hair wash was not of the quality promised to Mr. George and therefore the transaction amounted to fraud.

This case was considered favourably by the Law Lords.

THE AFTERMATH

The matter was never decided in a trial of fact. Mr. Stevenson died in November, 1932 and his executors settled out of court. No one but Mrs. Donoghue and her mysterious friend know whether there was actually a snail in the bottle or whether she actually fell ill. We do not know whether Mr. Stevenson’s factory actually filled the ginger beer bottle as manufacturers often used each other’s bottles. Neither do we know whether a court would have found Mr. Stevenson negligent at all.

The consequences of this case have changed the law in major ways. If not for Mrs. Donoghue, it would have resulted from some other incident. The time was right.

After 1932, May Donoghue lived anonymously, a few hundred pounds better off, and died in 1958.

Prepared by Frank Rieuwers who acknowledges “The Paisley Snail” Teacher’s Guide, Law Courts Education Society of British Columbia, Canada.

Donohue v Stevenson

This case ushered in the law of negligence. It did not exist as a distinct branch of law until the Donoghue v Stevenson case was decide in 1932.

This precedent is now the foundation case upon which the entire case law of negligence has evolved in Australian courts. This branch of law exists essentially of the case law decisions of judges over many years.

1. Who are the two parties to the case and what is their role in the case?
2. Outline the state of the law before Donoghue v Stevenson
3. Briefly outline the ‘facts’, why the case went to court.
4. Why did the case go on appeal before the House of Lords?
5. What legal rules regarding negligence did the House of Lords create? (a plaintiff must prove these three elements exist to a court to be successful in a case of negligence)
6. How was the dispute finally resolved and what was the legal consequence?

Wyong Shire Council v Shirt (1980)

The Shirt Case

What is risk and foreseeability?

Risk

• a situation involving exposure to danger

Foreseeability

•  is a requirement under tort law that the consequences of a parties action or inaction could reasonably result in the injury

The Shirt Case

Facts

On the da of the events in 1980, the plaintiff (Shirt), an inexperienced and novice water ski enthusiast took upon himself to ski in deep water. Since it is easier to ski in deeper waters than in shallow waters, the idea was perfect. The only concern now was to decide where the water was steep, and where it was shallow. Shirt was guided by a sign erected by the Defendant (Wyong Shire Council), reading “Deep water” and pointing towards the shore, according to his judgment. He crossed the region assuming that the water was deep after that point, while in reality, the water was shallower after the sign. Shirt fell and hit his head on the water bed below, causing paralysis.

Shirt claimed to be mislead into believing the lake was generally deep and safe for inexperienced skiers.

Remedy sought

Shirt wanted damages for a breach of duty of care

Appeal

Shirt won in the NSW Court of Appeal. The Council appealed to the High Court.

High Court Appeal

Legal issue:

Can Shirt’s accident be reasonably foreseeable if there was low probability of the injury occurring? 

The Courts Decision

Outcome

* Appeal dismissed. Shirt won.

Legal reasoning:

* Mason J reasoned that a reasonable man would have concluded that the sign was ambiguous and that a water skier would have been induced to ski in that zone of water thinking it to be deep. The reasonable person would see it as unsafe for an inexperienced skier and may contemplate the skier striking the bed of the lake. There was foreseeable risk of injury.

Ratio decidendi

* Foreseeability of the risk of injury and the likelihood of that risk occurring are two different things. A risk may be foreseeable even if there is improbability of its occurrence, save where it is farfetched or fanciful. 

Therefore, Mason J requires consideration of:

1. The magnitude of the risk.
2. The degree of probability of its occurrence.
3. The expense, difficulty and inconvenience of taking alleviation action.

4. Other conflicting responsibilities which the defendant may have

Questions:

1. Who are the parties to the case and what is their role in the case?
2. How would the case be listed for trial at each stage?
3. What was the law regarding foreseeability at the time?
4. Briefly outline the ‘facts’ and why the case went to court.
5. Explain the High Court’s ruling.

Part 2

Rules of Departure from Precedent

Outline the following rules of departure with case examples:

• Reversal
• Overruling
• Distinguishing
• Disapproval

Remember to include a reference list

Part 3

Read the hypothetical application of the tort of Negligence and complete the task.

The Little Blue Lake Case

Nicholas, George and Billy were on their mid term break from university in Mt Gambier. On the afternoon of Saturday, the 5^th of April, they decided to go for a swim at the Little Blue Lake. The Little Blue Lake is a popular tourist attraction in the region and is 11km south west from Mt Gambier. It is known to be quite hazardous in cooler months.

Little Blue Lake

Sign marked in red

Even though the water was cold and the weather was cool and windy, they decided to go swimming anyway. The three of them agreed that Nicholas would jump in first. The boys noticed that there was a small sign warning swimmers that the conditions were dangerous, but decided that they would swim anyway. Nicholas jumped in and the water was shockingly cold. Consequently, Nicholas felt his chest start to tighten and began to panic. Nicholas then yelled out to his friends to save him. George jumped in to pull Nicholas out of the water while Billy called an ambulance. Nicholas was revived at the scene by ambulance officers and then transported to the Mount Gambier Districts Health Service before being airlifted to the Royal Adelaide Hospital.

Nicholas was in hospital in a coma for 3 months and when he woke up he was diagnosed with severe cognitive damage. Nicholas sued the Little Blue Lake Authority, the group in charge of maintaining the Little Blue Lake and surrounding area. Nicholas sued under the tort of negligence for damages of $350,000. At the trial, the South Australian Supreme Court found in favour of Nicholas and he received damages of $400,000 for mental harm and economic loss.

In her judgment the Supreme Court judge said, “In current times, the law states that the defendant should have foreseen that its conduct involved a risk of injury to the plaintiff’

The Little Blue Lake Authority appealed the decision in the appeal court of the Supreme Court of South Australia.

Precedent cases

1. ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’ Donoghue v Stevenson (1932) House of Lords (UK)

2. ‘The foreseeability test applies only to situations that are reasonably foreseeable, not fanciful or far-fetched.’ Wyong Shire Council v Shirt (1980) High Court of Australia

3. ‘Warning signs only serve a purpose if they are likely to inform a person does not already know, or to draw attention to something the person might have overlooked of forgotten. The obviousness of a danger can be important in deciding whether a warning is required’ Vairy v Wyong Shire Council (2005) High Court of Australia
4. ‘A person who causes their own injuries cannot claim compensation for them.’ Australian Utilities v Papanikolas (1997) Supreme Court of Victoria

Task: Prepare an argument against the ruling acting as the Defendant in the appeal court of the Supreme Court. The argument should be approximately 800 words. In your submission you are expected to list the case for trial and include:

1. A brief outline of the facts
2. A referral to each of the four authorities and reasons why you agree or disagree with them having an influence on this case. That is, whether the cases precedents should be followed or distinguished.
3. Is there any counter argument to be made (ie contributory negligence)
4. Make sure to reference the correct legislation and illustrate an understanding of negligence and duty of care

The following are court submission protocols:

To begin your submission, start by stating ‘If it pleases the court (your last name) for the Defendant’

To end your submission state ‘Nothing further your honours, thank you’

Draft Due: Monday Week 9

Due date: Monday Week 10

Word Count: Part 1- 1000 words; Part 2 800-1000

Remember to include a full reference list.

PERFORMANCE STANDARDS

	Knowledge and Understanding	Inquiry	Evaluation	Communication
A	Comprehensive knowledge and perceptive understanding of the legal rights and responsibilities of individuals and groups in Australian society. Insightful understanding of the values inherent in the Australian legal system.	Comprehensive skills in accessing and using information on aspects of the legal system.	Perceptive evaluation of issues or concepts through discussion and illustration of opposing arguments to reach an informed conclusion. Insightful recognition of how the Australian legal system responds to cultural diversity. Comprehensive and astute evaluation of the nature and operation of aspects of the Australian legal system.	Consistently accurate and coherent communication of highly informed observations and opinions, using a range of forms. Identification and use of legal terminology, indicating clear and appropriate understanding. Consistent and appropriate acknowledgment of a diverse range of sources.
B	Detailed knowledge and well-considered understanding of the legal rights and responsibilities of individuals and groups in Australian society. Well-considered understanding of the values inherent in the Australian legal system.	Considerable skills in accessing and using information on aspects of the legal system.	Thoughtful evaluation of issues or concepts through discussion and illustration of opposing arguments to reach an informed conclusion. Well-considered recognition of how the Australian legal system responds to cultural diversity. Well-informed evaluation of the nature and operation of aspects of the Australian legal system.	Mostly accurate and coherent communication of well-informed observations and opinions, using a range of forms. Identification and use of legal terminology, indicating mostly clear and appropriate understanding. Mostly consistent and appropriate acknowledgment of a range of sources.
C	Appropriate knowledge and considered understanding of the legal rights and responsibilities of individuals and groups in Australian society. Considered understanding of the values inherent in the Australian legal system.	Competent skills in accessing and using information on aspects of the legal system.	Considered evaluation of issues or concepts through discussion and illustration of opposing arguments to reach an informed conclusion. Considered recognition of how the Australian legal system responds to cultural diversity. Informed evaluation of the nature and operation of aspects of the Australian legal system.	Generally accurate and coherent communication of informed observations and opinions, using different forms. Identification and use of legal terminology, indicating mostly appropriate understanding. Mostly appropriate acknowledgment of sources.
D	Some recognition and awareness of the legal rights and responsibilities of individuals and groups in Australian society. Some recognition of values inherent in the Australian legal system.	Some endeavour to access and use information relevant to aspects of the legal system.	Basic consideration of issues or concepts through discussion and description of some arguments. Some recognition of how the Australian legal system responds to cultural diversity. Description, with attempted evaluation, of the nature and operation of aspects of the Australian legal system.	Some accuracy in communication of basic observations or opinions, in one or more forms. Some identification and use of legal terminology, indicating awareness of the need for appropriate use. Some inconsistent acknowledgment of sources.
E	Emerging awareness of the legal rights and responsibilities of individuals and groups in Australian society. Emerging recognition that there are values inherent in the Australian legal system.	Limited skills in accessing and using information with any relevance to aspects of the legal system.	Some description of an issue or concept through observation of an argument. Limited recognition of how the Australian legal system responds to cultural diversity. Some brief description of the nature and/or operation of one or more aspects of the Australian legal system.	Limited accuracy in communication, with few observations or opinions in a selected form. Attempted identification and use of examples of legal terminology, indicating limited awareness of the need for appropriate use. Limited acknowledgment of sources.

The post Development of the Common Law appeared first on My Assignment Online.

Expert Help With This Assignment — On Your Terms