Torts

Dear Mr Theirry,

After perusal of the facts at hand I am advising you of the possible tort actions that may arise from your situation. These actions are as follows:

Theirry v Sydney City Council

Negligence

A duty of care was owed to the plaintiff (Theirry) as it was reasonably foreseeable that omitting to put up proper safety precautions (nets, proper railings) could result in injury or damage to the plaintiff. Refer to Waverly Council v Swain (2002) . The defendant (Sydney City Council) was happy to have these premises used therefore owed the plaintiff a duty of care.

By not taking proper safety precautions the defendant has breached their duty of care. As the risk of injury to the plaintiff was foreseeable with a reasonable likelihood of the injury occurring. The defendants’ omission to take precautions against this foreseeable injury is in breach of their duty of care. See Hackshaw v Shaw , as a reasonable person could have foreseen the possibility of harm and taken steps to avoid it.

It is reasonable to say that the injuries sustained by the plaintiff probably would not have occurred but for the omission on behalf of the defendant. Had the defendant not been negligent the harm to the plaintiff may not have occurred. The fall from the building and the subsequent injury to the plaintiffs knee are a direct result of inadequate precautionary measures taken by the defendant in a place where the defendant was fully aware of the activity taking place. See Nagle v Rottnest Island Authority (1993) . The defendant used the competition as a promotional tool for tourism and was thereby promoting the activity that was to take place.

It is my professional opinion that the Plaintiff was to some extent contributory negligent in accordance with section 5 of the Civil Liability act 2002 . In failing to take precautions against the risk of the harm. While the defendants omission was responsible for the harm occurring, this risk would not have been present if it weren’t for the actions taken by the Plaintiff. Any remuneration for damages would potentially be discounted in accordance with the extent to which the court finds that the plaintiff was contributory negligent. See March v Stramare Pty Ltd .

The defendant is liable to have a tort action brought against them in regards to their negligence and they are liable for a percentage of the damage to the Plaintiff’s knee. The defendant is not liable for any further damages in relation to the facts at hand.

Theirry v Free Running Australia

Negligence

In accordance with section 5 of the Civil Liability Act (2002) , the defendant (Free Running Australia) is to be seen as negligent in failing to take precautions against a risk of harm and they did owe a duty of care to the Plaintiff (Theirry) the weather conditions were such that they should have been accounted for before continuing with the rescue. The defendant owed a duty of care towards persons likely to suffer damage as a result of their carelessness. See Anns v Merton London Borough Council (1978) .

The risk of injury to the plaintiff was reasonably foreseeable. The risk was not insignificant and a reasonable person in the position of the defendant would have taken such precautions as to avoid injury.

By ensuring the plaintiff that the “harness was safe” the defendant has failed to warn of obvious risk to the plaintiff when the plaintiff has requested advice or information about the risk from the defendant. See section 5, Civil Liability Act (2002) .The defendant was not told of the possible risk that the wind could blow him off course subsequently injuring him. In such a position that standard of care of a reasonable person would be that as to ensure the harness was properly fastened to withstand the wind that was existent at the time.

The defendant has failed to meet the standard of care that would be expected by a reasonable person in the same situation therefore they are in breach of their duty of care to the plaintiff. There was a high probability that the wind on the day in question could have caused an injury such as the injury sustained by the plaintiff. There was no immediate danger to the life of the plaintiff therefore there was no justification for the lack of care taken by the defendant.

The act or omission on behalf of the defendant was that of not properly securing the safety harness before commencing lifting the plaintiff to safety. The facts that followed were not of a situation that was too remote to have been foreseen. When applying the �but for’ test of causation it is clearly visible that but for the defendants carelessness in rescuing the defendant the subsequent injury would not have occurred.

The wind on that specific day did not change as the defendants lifted the plaintiff to safety as it had been a windy day, there was no Novus actus interveniens between the breach of duty of