Breaching the Duty of Care … Assessment
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Duty of Care and Public Facilities: An Analysis of Herbert's Slip-And-Fall Case
Did the Brisbane City Council owe a duty of care to Herbert?
Although every tortious situation is unique in some way, they all share the common feature of one individual incurring some type of harm as the result of the actions or inactions of another. For instance, according to Black's Law Dictionary, the Brisbane City Council owed their citizenry, including Herbert (despite his inebriated state), a duty if care to ensure that the publicly owned and operated parking facility was safe for use. In this regard, the definition of duty of care provided by Black's indicates that, "In negligence cases, duty may be defined as an obligation, to which law will give recognition and effect, to comport to a particular standard of conduct toward another, and the duty is invariably the same, one must conform to legal standard of reasonable conduct in light of apparent risk" (1991, p. 505). While the Brisbane City Council did in fact take steps to ameliorate the apparent risk involved in the operation of the parking facility in question, they also suspended the janitorial services that were responsible for maintaining the safety of the facility.
With respect to Herbert's specific situation, Black's also stipulates that this is the "degree of care that a reasonable person can be expected to exercise to avoid harm reasonably foreseeable if such care is not taken" (1991, p. 499). The case study makes it clear that the Brisbane City Council was fully aware of the potential for wet floors during periods of precipitation but elected to not take action to remedy the situation. For instance, according to the case study:
The Brisbane City Council is fully aware of the tendency of the vinyl lobby floors to be slippery when there has been rainfall. Although no warning signs have been placed in any of the lobbies due to the risk of theft, they have hired cleaning staff to regularly dry the floors during days and nights in which there has been significant rainfall. One month ago however, the cleaners were removed on weekend nights as a cost-cutting measure. (p. 3)
Consequently, the Brisbane City Council was aware of the potential risks that were involved in operating its parking facility while the danger to its citizens existed during periods of inclement weather and therefore breached its duty of care to Herbert as discussed further below.
Issue: Did the Brisbane City Council breach its duty of care to Herbert?
In general, the criteria that are required in order for Herbert to prove a breach of duty of care on the part of the Brisbane City Council are as follows:
1. The accused party owed the claiming party a duty of care;
2. The accused party must have acted without the necessary standard of care;
3. There must be damage suffered; and,
4. There must be causation proved with relation to the damage (Whyte, 2010, p. 107).
In Herbert's case, all four of these criteria are present, confirming that the Brisbane City council owe him a duty of care that was breached by their failure to provide a safe environment in their parking facility. In this regard, according to Section 9 of the Civil Liability Act, General Principles:
1. A breach of the duty to take precautions against a risk of harm does not occur unless:
A. The risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and,
B. The risk was not insignificant; and,
C. In the circumstances, a reasonable person in the position of the person would have taken the precautions.
2. In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things):
A. The probability that the harm would occur if care were not taken;
B. The likely seriousness of the harm; The burden of taking precautions to avoid the risk of harm; and,
C. The social utility of the activity that creates the risk of harm.
In Herbert's case, each of these factors was also salient. In sum, it is reasonable to suggest that the Brisbane City Council performed a pro forma cost-benefit analysis of the expenses that would be involved in fixing a potential safety hazard in a facility for which they were responsible and, after completing this analysis, elected to sacrifice the safety of their citizenry in favour of saving a few dollars.
It is also reasonable to suggest that Herbert might have avoided using the parking facility if he had been informed of the potential for a slip-and-fall accident that would temporarily disable him and require tens of thousands of dollars worth of medical care. For example, Weir (2011) advises that, "The obligation to warn of risks was broadened in the High Court case of Chappel v Hart" (p. 128). Based on the foregoing factors, it is reasonable to conclude that the Brisbane City Council breached its duty of care to its citizens, including Herbert, by failing to remedy a potential safety hazard that was brought to their attention.
Issue: Did Herbert suffer harm as a result of the breach of duty by the Brisbane City Council?
As noted above, Herbert experienced severe harm as a result of his slip-and-fall accident in the publicly owned and operated parking facility in question. The facts in this case make it clear that Herbert suffered significant harm as a result of the breach of duty on the part of the Brisbane City Council. Indeed, the breach of duty by the Brisbane City Council resulted in significant harm to Herbert, including $60,000 in medical expenses and the loss of $20,000 in income. Pursuant to Section 11(1) Civil Liability Act, a breach of duty that causes particular harm is comprised of the following elements:
A. The breach of duty was a necessary condition of the occurrence of the harm (factual causation); and,
B. It is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability).
In sum, "but for" the Brisbane City Council's breach of duty to Herbert, he would not have suffered these economic and physical harms.
.Issue: Can the Brisbane City Council rely on the defence of contributory negligence or voluntary assumption of risk?
Notwithstanding Herbert's relatively inebriated condition, the slip-and-fall incident that harmed him could have happened to anyone similarly situated irrespective of their mental or physical state (Kozlowski, 2006). In fact, there is a growing body of case law that emphasises the responsibilities of municipalities to operate any publicly owned facilities in a manner that ensures the safety of their users (Kozlowski, 2006). In this regard, the culpability of the Brisbane City Council can be discerned from existing statutory guidelines, including Section 23, Civil Liability Act, which stipulates that the standard of care with respect to contributory negligence is as follows:
1. The principles that are applicable in deciding whether a person has breached a duty also apply in deciding whether the person who suffered harm has been guilty of contributory negligence in failing to take precautions against the risk of that harm.
2. For that purpose:
A. The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and,
B. The matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.
Because the Brisbane City Council failed to remedy the potential safety hazard represented by the slick concrete floors that they had already by apprised represented a danger to its citizenry, they would likely be unable to rely on a defence of contributory negligence in this case to avoid responsibility for Herbert's injuries and losses. Other cases involving slip-and-fall accidents have cited the requirement for a violation of the plaintiff of any posted rules and regulations concerning the use of private or publicly owned facilities (Sanders, 2003), but in this case, Herbert was not in violation of any specific rules or regulations concerning the proper use of the parking facility in which the accident occurred.
In fact, even if the Brisbane City Council had posted warnings concerning the potential safety hazard of the floors in the parking facility during inclement weather, this would not have abrogated their fundamental obligation to operate this publicly owned and operated parking facility in a safe and responsible fashion.
The research showed that municipalities have a fundamental responsibility to operate any publicly owned facilities in a safe and responsible fashion. The research also showed in Herbert's case, the Brisbane City Council was malfeasant in the administration of their responsibilities in this regard, and failed to remedy a potential safety hazard despite their being aware of the potential for slip-and-fall accidents such as the one that Herbert experienced. This case study highlights the windows of vulnerability that municipalities… [END OF PREVIEW]
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