The Entry Of The Julia And Wayne Automatically Creates An Implicit Duty For The Nightclub To Ensure Safety. Essay Example
Unless the truthfulness of the statement can be disputed, Malcolm Somebody cannot sue the newspaper company for defamation. The observations of Mason J in Mirror Newspapers Ltd v Harrison are pertinent in this regard.
In this case, the Daily Mirror reported the arrest and imminent charging of the plaintiff for bashing a Member of Parliament. The plaintiff sued, claiming that the article imputed that he was guilty of the bashing. The High Court held that the article was not capable of being understood as meaning that the plaintiff was guilty of (as opposed to had been charged with) the offence. The Court explained that the ordinary reasonable reader knows that a person charged with an offence is presumed innocent unless proven guilty. In spite of knowing that many people charged with a wrong doing are subsequently convicted, he also knows that truthfulness of the charge shall be determined by a court or a jury, and in quite a few instances, a person charged is set free after the conclusion of trial. In this situation the reader will view the plaintiff with suspicion, concluding that here is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudice. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.
Applying this principle to the facts of the present case, we can clearly infer that a mere mention of Malcolm being charged with a sexual offence alone cannot be treated as defamatory, as it won’t cloud the perception of an ordinary reader who would only reasonable conclude that there is every likelihood that Malcolm may be acquitted after undergoing trial in a court of law or before the jury. So, this report does not tarnish Malcolm’s reputation in any manner and will therefore not be considered defamatory.
Though the nightclub policies were framed by Peter, the manager, Keith, being the owner to whom Peter reports will be vicariously liable for Peter’s actions. Julia and Wayne can sue the nightclub for breaching the duty of care owed to its customers.
As observed by McCardie J in Maclenan v Segar, where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties, unless it provides to the contrary, contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them.
Since Australian Safeway Stores Pty Ltd v Zaluzna, the differing tests which earlier applied depending upon the category of entrant in occupiers' liability cases have been subsumed within the ordinary principles of negligence. It follows that an occupier of premises must take reasonable care for the safety of persons entering those premises bearing in mind that what is reasonable will vary with the circumstances of the plaintiff's entry upon the premises.
Wyong Shire Council v Shirt laid down the test which states that it is necessary to ask whether the defendant's failure to eliminate the risk of injury showed a want of reasonable care for the plaintiff's safety.
In line with these criteria, we can safely conclude that the special circumstances resulting from the nightclub’s decisions to cut off water supply to boost bar sales along with the defective air conditioning and unnaturally dark environment created the possibility of accidents for the customers. The situation clearly calls for extra precautions from the nightclub management which they failed to adopt.
The nightclub may claim contributory negligence to reduce its liability. It may contend that, just like the duty of care owed to its customers, Wayne and Julia should have been more measured and careful regarding their movements instead of desperately searching for water.
As noted by Handley JA in Shoeys Pty Ltd v Allan, the law imposes a high duty of care on the occupiers of shops such as supermarkets to protect the public from the risks associated with the presence of material which has been spilled or dropped in areas used by the public. However the duty remains one of reasonable care. The occupier is not an insurer.
Mahoney JA in Phillis v Dalyheld thatthe Court is required to identify what is the thing which the defendant should have done and to examine, in terms of reasonableness, the acceptability of it. The test of reasonableness involves a value judgment.
Per the above authorities, the balance of probabilities will possibly tilt the case towards the Julia and Wayne. But Keith and Peter may plead contributory negligence to lessen their liability.
The Brights cannot sue the real estate agency since the agency was never asked to look into the licensing conditions, which lie at the core of the current dispute.
They may bring legal action against Mr. Potters, their solicitor for negligence and breach of duty to disclose material facts regarding the purchase of Waterview House.
The Privy Council, in Brickenden v London Loan & Savings Co held that when a party, holding a fiduciary relationship, commits a breach of his duty by non-disclosure of material facts, which such party is entitled to know in connection with the transaction, he cannot be heard to maintain that disclosure would not have altered the decision to proceed with the transaction, because the party's action would be solely determined by some other factor. Once the Court has determined that the non-disclosed facts were material, speculation as to what course the party, on the disclosure, would have taken is not relevant.
In the present case, Mr. Potters clearly erred in failing to disclose the expiration period of the mooring license which would have materially altered the decision of the Brights to purchase the house since having a suitable mooring for a large yacht was high on priority.
High Court authorities establish that a duty of care arises in negligence at common law only where there exists a relationship of proximity between the parties with respect to both the relevant class of act or omission and the relevant kind of damage.
Carmody v Priestleyheld that in determining if a solicitor has, by failing to take the necessary precautions, not achieved the standard that is reasonably expected of the ordinary, competent and careful solicitor in conducting the professional work, we must take into consideration the entire circumstances of the relationship. These circumstances include the retainer terms, the quality of the instructions and the degree of urgency.
The burden on solicitor was further increased in Hawkins v Claytonwhere the Court held that a solicitor's duty of care may, depending on the nature of the particular professional task or function involved and the circumstances of the case, require the taking of positive steps beyond the specifically agreed professional task or function where the steps in question are necessary to avoid a real and foreseeable risk of economic loss being sustained by the client. In reliance on this statement the court in Waimond Pty Ltd v Byrne held that in the circumstances of the case before it an affirmative duty to advise existed in relation to matters that were not directly within the ambit of the retainer from the client.
Since the Brights, as clients to Mr. Potters asked him to look into the licensing conditions, it was integral to the service rendered by Mr. Potters and would therefore directly influence the retainer and professional relationship. Based on these grounds, the Brights may sue Mr. Potters for equitable compensation.
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Maclenan v Segar  2 KB 325 at 322
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Wyong Shire Council v Shirt(1980) 146 CLR 40
Shoeys Pty Ltd v Allan(1991) Aust Torts Reports 81-104 (NSW Court of Appeal, 3 May 1991)
Phillis v Daly 15 NSWLR 65 at 72
Wood v Postnet Pty Ltd ACTSC 48
Brickenden v London Loan & Savings Co 3 DLR 465
Sutherland Shire Council v Heyman (1984) 157 CLR 424
San Sebastian Pty Ltd v Minister Administering Environmental Planning and Assessment Act1979 (NSW) (1986) 162 CLR 340
Gala v Preston (1991) 172 CLR 243
Bryan v Maloney (1995) 182 CLR 609
Carmody v Priestley WASC 120
Hawkins v Clayton(1988) 164 CLR 539 at 585
Waimond Pty Ltd v Byrne(1989) 18 NSWLR 642 at 652
Eades v Formbys Lawyers,  WADC 125 at 128
Abadee, A 2003, CONTINUING PROFESSIONAL DEVELOPMENT PROGRAMME PROFESSIONAL LIABILITY OF BARRISTERS, (2003) Bar News (Winter), p. 5. Available from: <http://www.vicbar.com.au/GetFile.ashx?file=PIIFiles/Professional+Liability+of+Barristers.pdf>. [17 January 2015].
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