2014 ZB Question 8 – MIX (Def)
Maxine owns a light aircraft and often offers the opportunity for friends to join her for a trip around the small
village in which she lives. One evening she organised a drinks party to celebrate a friend's engagement. After
having imbibed a fair quantity of wine, John (one of the guests) challenged Simon, another guest, to fly the
aircraft. Simon was also drunk and agreed to fly the aircraft. Simon and John did not inform Maxine of their
intention to take the aircraft. The aircraft had not been properly secured against trespass and Simon and John
were easily able to access it. Soon after the aircraft was airborne, Simon very quickly got into difficulties and the
aircraft crashed killing him and severely injuring John. On learning of the news, Maxine was so upset at the
thought that she had facilitated Simon and John's adventure by not securing the aircraft against trespass that
she became severely depressed and committed suicide. Advise all parties of any defences that might be raised
against a claim in the tort of negligence.
In advising, J will bring action against S for flying of the aircraft which result in J severely injured and M’s estate
will bring action against J and S’s estate for causing depression which resulted in M committed suicide. In order
for action to be successful. Both parties will first need to establish the tort of negligence against potential
Defendants. According to Lochgelly Iron v Mc Mullan, both parties will need to prove on a balance of
probabilities that there is an existing duty of care and the defendant breached it, causing some damage to them
and the damage is not to remote.
Frist issue whether the defendant owes a duty of care to claimants?
J v S’s estate
According to Robinson v Chief Constable of West Yorkshire Police, court will consider what has been decided
previously and follow the precedents. If no decided precedent, court will consider the closest analogies in the
existing law and weight up the reasons for and against imposing liability (incremental approach). However, court
will resort to Caparo test (ie. foreseeability, proximity, just, fair and reasonable) only where it is invited to depart
from precious authority (novel situation).
As a driver, who do you owe a duty of care to? Well in the case of Donoghue v Stevenson, court held although
manufacture and consumer may be in different part of world and never meet before, the duty is owed as
manufacture able to foresee that any negligence on his part with regarding to the manufacturing of product
would ultimately affect his consumer. Therefore, in applying this principle, it would appear that in the case of a
driver, a duty is owed to all other road users. The standard of care owed to other road users is that of a
reasonable driver. This was described in Nettleship v Weston as the standard to be expected of a competent
and experienced driver. In the case, the claimant was a friend of the defendant and was teaching her to drive.
Prior to such an arrangement the claimant had sought assurances from the defendant that appropriate
insurance had been purchased in the event of accident. On the third lesson the defendant was executing a simple
manoeuvre at slow speed when she panicked which resulted in the car crashing into a lamppost injuring the
claimant. The defendant was subsequently convicted of driving without due care and attention. Court held that
the duty of care owed by a learner driver to the public (including passengers) was to be measured against the
same standard that would be applied to any other driver.
Applying to the fact, we can draw analogy to Nettleship case which involve car accident and in our fact was
aircraft accident. S as driver or controller of aircraft owes duty of care to his passenger J following reasonable
driver standard and will not take into account the fact that he had drunk. Thus, duty of care is establish.
M’s estate v Simon’s estate and J – depression
However, for many years one could not bring a claim in negligence for pure psychiatric harm (Victorian Railways
Commissioners v Coultas). This is no longer the case but there are restrictive rules for this type of damage. A
number of policy reasons have been given for treating psychiatric injuries differently. For example, evidentiary
difficulties (controversy regarding the existence, nature and basis of certain psychiatric conditions), fear of
fraudulent claims (it’s easier to fake a psychiatric injury than it is a physical one. No very convincing because
people could fake physical injuries (whiplash). Also, courts could find out if someone is faking it, floodgates (if
someone has an accident, the physical effects of that accident wont necessary be limited), disproportionate
Maxine owns a light aircraft and often offers the opportunity for friends to join her for a trip around the small
village in which she lives. One evening she organised a drinks party to celebrate a friend's engagement. After
having imbibed a fair quantity of wine, John (one of the guests) challenged Simon, another guest, to fly the
aircraft. Simon was also drunk and agreed to fly the aircraft. Simon and John did not inform Maxine of their
intention to take the aircraft. The aircraft had not been properly secured against trespass and Simon and John
were easily able to access it. Soon after the aircraft was airborne, Simon very quickly got into difficulties and the
aircraft crashed killing him and severely injuring John. On learning of the news, Maxine was so upset at the
thought that she had facilitated Simon and John's adventure by not securing the aircraft against trespass that
she became severely depressed and committed suicide. Advise all parties of any defences that might be raised
against a claim in the tort of negligence.
In advising, J will bring action against S for flying of the aircraft which result in J severely injured and M’s estate
will bring action against J and S’s estate for causing depression which resulted in M committed suicide. In order
for action to be successful. Both parties will first need to establish the tort of negligence against potential
Defendants. According to Lochgelly Iron v Mc Mullan, both parties will need to prove on a balance of
probabilities that there is an existing duty of care and the defendant breached it, causing some damage to them
and the damage is not to remote.
Frist issue whether the defendant owes a duty of care to claimants?
J v S’s estate
According to Robinson v Chief Constable of West Yorkshire Police, court will consider what has been decided
previously and follow the precedents. If no decided precedent, court will consider the closest analogies in the
existing law and weight up the reasons for and against imposing liability (incremental approach). However, court
will resort to Caparo test (ie. foreseeability, proximity, just, fair and reasonable) only where it is invited to depart
from precious authority (novel situation).
As a driver, who do you owe a duty of care to? Well in the case of Donoghue v Stevenson, court held although
manufacture and consumer may be in different part of world and never meet before, the duty is owed as
manufacture able to foresee that any negligence on his part with regarding to the manufacturing of product
would ultimately affect his consumer. Therefore, in applying this principle, it would appear that in the case of a
driver, a duty is owed to all other road users. The standard of care owed to other road users is that of a
reasonable driver. This was described in Nettleship v Weston as the standard to be expected of a competent
and experienced driver. In the case, the claimant was a friend of the defendant and was teaching her to drive.
Prior to such an arrangement the claimant had sought assurances from the defendant that appropriate
insurance had been purchased in the event of accident. On the third lesson the defendant was executing a simple
manoeuvre at slow speed when she panicked which resulted in the car crashing into a lamppost injuring the
claimant. The defendant was subsequently convicted of driving without due care and attention. Court held that
the duty of care owed by a learner driver to the public (including passengers) was to be measured against the
same standard that would be applied to any other driver.
Applying to the fact, we can draw analogy to Nettleship case which involve car accident and in our fact was
aircraft accident. S as driver or controller of aircraft owes duty of care to his passenger J following reasonable
driver standard and will not take into account the fact that he had drunk. Thus, duty of care is establish.
M’s estate v Simon’s estate and J – depression
However, for many years one could not bring a claim in negligence for pure psychiatric harm (Victorian Railways
Commissioners v Coultas). This is no longer the case but there are restrictive rules for this type of damage. A
number of policy reasons have been given for treating psychiatric injuries differently. For example, evidentiary
difficulties (controversy regarding the existence, nature and basis of certain psychiatric conditions), fear of
fraudulent claims (it’s easier to fake a psychiatric injury than it is a physical one. No very convincing because
people could fake physical injuries (whiplash). Also, courts could find out if someone is faking it, floodgates (if
someone has an accident, the physical effects of that accident wont necessary be limited), disproportionate
