For this chosen scenario, two issues have been identified. The first issue to be discussed is whether there was negligence on the part of Josh? The second issue in this chosen scenario is whether Wajhi is entitled to any damages for the negligence of Josh?
The notable case Grant v Australian Knitting Mills PC 21 OCT 1935 deals with the provisions of negligence. However, it is to be mentioned that the provisions as incorporated in this case are based on the finding of the case Donoghue vs Stevenson  AC 562. In the latter case the plaintiff had visited a café with her friend where she had ordered Ginger beer. The beer came in an opaque bottle. After the half of the beer had been consumed remains of a decomposed snail was found inside the bottle. Mrs Donoghue, the plaintiff had sustained damages after consuming the beer and decided to claim damages from the beer manufacturer. The claim of the plaintiff was upheld in the case and the decision of the case became a landmark judgment for negligent cases. In this case it was further held that to establish negligence on the part of the defendant the plaintiff has to prove:
- The defendant had a duty of care to the claimant
- Such defendant had breached his duty of care
- The damage sustained by the plaintiff resulted directly because of the breach of duty on the part of the defendant
- The damage sustained by the plaintiff was not too remote
Duty of Care
The duty of care of the defendant towards the plaintiff is the first essential element which needs to be proved. It is the burden of the plaintiff to prove that the defendant owed a duty of care. It can be said that to assess whether the defendant owed a duty of care to the plaintiff, the courts apply the Caparo test. Such test was first applied in the case Caparo Industries pIc v Dickman  2 AC 605. The aim of the test is to determine whether the defendant’s action could foreseeably harm others. In the aforementioned case, it was held by the court that no duty of care was owed by the defendant since the auditors had not been aware of Caparo’s existence. It was also held that there was no proximity between Caparo and the auditors.
Breach of Duty of Care
The second essential in establishing negligence in a case is breach of duty of care by the defendant towards the plaintiff. It can be stated that an objective test is generally applied by the courts to assess if the defendant had breached his duty of care to the plaintiff. The objective test was applied in the case Vaughan v Menlove (1837) 3 Bing. N.C. 467 for the first time. In this remarkable case haystack of the defendant had caught fire as a result of poor ventilation in the room where the haystack was kept. It was argued by the defendant that the he had used his best judgment in taking such decision. However, it was held by the court that acting in his best judgment was not enough and such action of the defendant had to be assessed from the reasonable person’s point of view. The aim of the aforementioned test is to assess whether a reasonable person who is acting in the same position as the defendant would have taken additional care or would have acted in the same way as the defendant did. If it can be proved that a reasonable person would take additional care in fulfilling his duty to prevent any damage likely to be caused to anyone, the defendant would be held liable for breach of duty of care.
The third important essential in claims of negligence is to prove that the damage caused to the plaintiff was a direct result of the negligent actions of the defendant. In this regard the courts apply the ‘but for’ test. This test was first applied in the case Barnett v Chelsea & Kensington Hospital . In this case the court held the hospital authorities responsible for the failure of the doctor to diagnose the disease of the plaintiff. The aforementioned ‘but for’ test determines whether the damage would have been sustained by the plaintiff irrespective of the actions of the defendant. If it is found that damage would have been sustained by the plaintiff regardless of the defendant’s action, the defendant cannot be held liable.
Remoteness of Damage
It is to be stated that a defendant can only be held liable for the injury or damages sustained by the plaintiff if it was reasonable foreseeable for the defendant to foresee such damage. This provision was held in the remarkable case The Wagon Mound no 1  AC 388. A test of remoteness was first applied in this case in order to determine and assess whether damage which was sustained by the claimant was remotely foreseeable. In the case Murphy v Brentwood DC  AC 398 the same test was applied. It can be said that if such damage was foreseeable the defendant would be held responsible for his negligent actions.
In the remarkable case Railways v Halley  20 ALR 409 it was held that the claim for damages of a plaintiff is significantly reduced if it is established that there was contributory negligence on his part. Contributory negligence is one of the most favorable grounds of defense available to defendants in most negligence cases. It can be noted that contributory negligence is established in circumstances where the injury or damage sustained by the claimant is partly due to the negligence on the part of the claimant and partly due to the negligence on the part of the defendant. The claim amount of damages of the plaintiff would be reduced according to the extent of the contribution of the plaintiff to the damage sustained. However in the case Capps v Miller  1 WLR 839 it was held that to establish contributory negligence, it has to be proved that the plaintiff had failed to take proper care of personal safety which was the immediate contributory cause of the damage suffered.
In this scenario it can be noted that Johnno and Wajiha booked a reservation with ‘ATV Adventures’ to have the off road driving experience in a four wheel drive as provided by Josh Marsh. It can be said that Josh is the sole trader of ATV Adventures and therefore is solely liable for any of the claims brought against ATV Adventures. The Caparo test as discussed above can be applied to determine whether Josh owed a duty of care to Wajiha. According to the test it can be said that it was reasonable for Josh to foresee that his actions would have adverse effects on his clients. Therefore it can be established that Josh owed a duty of care to Wajiha.
The second essential element required to be proved to substantiate claims of negligence is breach of duty of care on the part of the defendant. The objective as discussed above can be applied in this scenario to assess whether any reasonable person would have acted in the same way as Josh or would have taken additional care. It can be said that any person who is reasonable would have taken due care to clean the vehicles and ensure that the vehicles were a good condition. Such reasonable person would have also taken the safer route while heading back. In this case it can be said that Josh had a duty to ensure that the vehicles provided to the clients are clean to be functioning properly. However, the seatbelt of the ATV provided to Wajiha failed to be work after some time and prior to the accident caused. In addition to this Josh had compromised the safety of the clients by taking the shorter but dangerous route which was suited for expert ATV drivers.
Causation of the damage is the third essential is to substantiate the claim for damages of Wajiha. It is essential to assess whether the damage sustained by Wajiha was a direct result of the negligent actions of Josh. The ‘but for’ test as described above can be applied in this scenario as well to identify whether Wajiha would have still sustained the damages even in the event of omission of the actions of Josh. It can be mentioned that Wajiha had sustained the damages as the seatbelt of the ATV failed to work and her chin hit the dashboard. She also injured her knee due to the same reason. It can be said that she would not have sustained the damage if the seatbelt worked. Moreover if Josh had not increased the convoy’s speed Johnno would not have had drive so fast and keep pace with him. The over speeding of the ATV can be considered to be the reason for it slip and run into the opposite hill. Therefore it can be established that Wajiha sustained the damages due to the negligence on the part of Josh.
The next element is foreseeablity of the damage. It can be said that damages can be claimed by plaintiff only if such damage was foreseeable to the defendant. The test for remoteness as discussed above can be applied in this scenario to assess whether the damage sustained by the plaintiff would be foreseeable to a reasonable man. In this case it can be said that any reasonable person would have foreseen the damage or injury likely to be sustained by any client in the event of malfunctioning of the seatbelts. It would also be foreseen by a reasonable person that increasing the speed of the convoy and taking the dangerous route which is suited for experienced drivers would put the other clients in danger. Therefore it can be assessed that the injury sustained by Wajiha was clearly foreseeable to Josh but he ignored it.
The defense of contributory negligence is available to Josh in this case. As discussed above, contributory negligence decreases the claim amount of the plaintiff depending on the extent of the plaintiff’s contribution to the damage sustained by him/her. It can be mentioned that in this chosen case study Wajiha had bee instructed to wear the knee guard. However, she neglected such instruction and went on to ride the ATV without the knee guards.
Thus after analyzing the facts of the case and applying legal provisions to it, it can be mentioned Josh had a duty of care to Wajiha. He breached such duty of care. The injury sustained by Wajiha was a direct result of the negligent actions of Josh. The injuries sustained by Wajiha reasonably foreseeable to Josh. Therefore it can be held that Josh was Negligent in his actions. However, there was negligence on the part of Wajiha and her claim for damages would be significantly reduced therefore.
Thus in conclusion it can be said that
- There was negligence on the part of Josh
- Wajiha has the right to claim damages from him. However, her claim would be reduced due to contributory negligence.
Grant v Australian Knitting Mills. PC 21 OCT 1935
Donoghue vs Stevenson  AC 562
Caparo Industries pIc v Dickman  2 AC 605
Vaughan v Menlove (1837) 3 Bing. N.C. 467
Barnett v Chelsea & Kensington Hospital 
The Wagon Mound no 1  AC 388
Murphy v Brentwood DC  AC 398
Railways v Halley  20 ALR 409
Capps v Miller  1 WLR 839
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