Legal Draft
Good Morning your Honour, my name is ---- Initial ---- and I am representing the plaintiff, Knight, today in this matter. Your Honour would you grant me permission to dispense with full citations. My I please hand up my written submission
Bart Brown, my client's employer, drove my client in a tractor he was fully aware was not safe and by doing this Mr Brown completely disregarded the duty of care he owed to my client. A crash was caused by the colliding of the tractor and the Ms Fiona Fair's vehicle. This breach of duty on Brown's behalf led to the serious injuries endured by my client, in which he is still now recovering from.
Mr Brown owed my client a duty of care as the proximity of their relationship grants such, as employer to employee. In O'Connor v Commissioner for Government Transport [1954] HCA 11, the Court held that an employer owes a duty to take reasonable care for the safety of its workers "by providing proper and adequate means of carrying out his work without unnecessary risk..." The neighbour principal can validate this, as a neighbour is a person/s who are so closely and directly affected by the defendant's actions or omissions that he ought to responsibly have had them in contemplation. This principal was established was in the Donoghue v Stevenson (1932) AC562 by Lord Aitken.
Now that an establishment has been made of the duty of care Brown owed to my client, I will prove how this responsibility was breached. The Civil Liability Act Section 9 states that In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following, the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, the social utility of the activity that creates the risk of harm. The defendant although aware that the vehicle was unregistered, uninsured and had faulty brakes he still put my client in a position where there was a high risk factor for an accident. The fact that this vehicle was clearly not road worthy poses as a greater likelihood for injury, which is reasonably foreseeable. I don't doubt that it would have been costly to fix the tractor however anyone in that vehicle at anytime is at high risk of resulting in an accident including the defendant, therefore servicing, registering and insuring the vehicle would have been in everybody's best interest. In Bankstown Foundry Pty Ltd v Braistina (1986) HCA 20 where the employee was injured whilst working the decisions was granted that "The common law requires no more of an employer than that he take reasonable care for the safety of his employee…." Much like this case Brown was ultimately responsible for Mr Knight's safety, which he neglected to do resulting in the injuries, my client faces today.
It is evident that Mr Brown had a Duty of Care for my client; he breached this duty of care and now the third element of negligence, causation. The 3 elements of causation are: 1. Damage was suffered, 2. The damage was caused by the defendant's negligence and 3.the damage was not too remote from the defendant's actions. Firstly, Damage, as a result of the crash Mr Knight has endured a fractured collarbone, a broken right leg and torn ligaments in his right hand. These damages would not have been caused if it were not for the crash caused by Mr Brown's negligence for not making he vehicle safe. The defence may argue that Brown wasn't necessarily the cause of the accident as if it wasn't for Ms Fair's misjudgement of intersection the crash would not have taken place. However, if the tractor's brakes were working properly the accident would have been avoided. In the case Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, Fairchild contracted disease and died from the exposure to asbestos from working for two employers, because working for both employers equally led him to disease they were both liable. Although my client's damages are different to Fairchild, Mr Brown's negligence to allow