All the events and characters are entirely fictional

Introduction

• The Issue section, it is expected to pin -point the legal problem rather than using broad terms. A suggested Issue could be like this:

“Can Grayson (Plaintiff) successfully file a negligence action against SafeOnEarth hotel (defendant) for failing to take reasonable care to prevent consequences of the virus (COVID-19) to a person who comes onto their hotel?”

• The Rules section should briefly mention only those legal principles/ case laws/ legislation (if applicable) that would help to solve this problem. And could develop your Rules section as such:

Gibson (2018) – In order to establish and be successful in a case of negligence, the plaintiff must be able to establish on the balance of probabilities that the defendant:

• Owed plaintiff a duty of care.
• Defendant breached that duty of care to the plaintiff;
• Defendant had cause in fact for the harm caused in the plaintiff
• Defendant’s actions were proximate cause for the harm caused in the plaintiff

(iii) As a consequence, the plaintiff suffered actual loss or damage.

Once the plaintiff manages to establish duty, breach, cause in fact, proximate cause, and damage, and then the onus shifts to the defendant to establish any defences.

• Next step is explaining all five elements (duty of care, breach of duty of care, cause in fact, proximate cause, and damages) one by one now.

Negligence is a failure to take reasonable care to avoid causing injury or loss to another person. When endeavoring to set up a case for imprudence, you ought to guarantee that all of the four segments have been met:

(1) Duty:

The underlying stage in separating a thoughtlessness circumstance is to develop whether the disputant owed the annoyed party a commitment. There are two kinds of commitment that a respondent could owe the annoyed party. The first is the general “commitment of care”. The commitment of care is fundamentally a commitment to act as a reasonable individual, acting under relative conditions, would act. In any indiscretion suit we look at the prosecutor’s exercises and endeavor to choose if a reasonable individual would have acted the way wherein the respondent acted had the reasonable individual been in comparative conditions that the respondent was in. If the respondent’s lead organizes the reasonable man’s direct the defendant has fulfilled his commitment of care. If the defendant’s exercises fall underneath what a court chooses the reasonable man’s exercises would have been the respondent has entered his commitment.

The resulting commitment is an “outstanding commitment” constrained by rule or case law which may exist either in any case, or rather than the standard commitment of care

(2) Breach

A respondent breaks such a commitment by fail to rehearse reasonable thought in fulfilling the commitment. Unlike whether a commitment exists, the issue of whether a respondent infiltrated a commitment of care is picked by a jury as an issue of sureness.

At the point when you have chosen the presence of a commitment, you ought to choose if the prosecutor has infiltrated his commitment. A disputant can infiltrate his commitment both by acting with a particular goal in mind or by fail to act with a certain goal in mind. As such, a respondent can break his commitment either by acting such that dismisses the reasonable man test, or by not acting in a condition where he is legally expected to act.

(3) Cause

Proximate explanation relates to the degree of a defendant’s commitment in a heedlessness case. A defendant in a recklessness case is only obligated for those harms that the respondent may have anticipated through their exercises.

At the point when you have demonstrated that the disputant owed a commitment to the annoyed party and that the respondent entered that commitment, you should show that the break was both the genuine and proximate purpose behind the insulted party’s underhandedness.

(4) Harm

The powerlessness to rehearse reasonable thought must achieve authentic damages to a person to whom the respondent owed a commitment of care and an individual physical issue ensures must be brought to court inside the best possible time length.

Application

Step 1: Does SafeOnEarth hotel (Defendant) owe Grayson (Plaintiff) a duty of care?

Duty of care is the first thing Grayson has to establish.

• Yes, SafeOnEarth hotel is an occupier and it is established law that an occupier owes a duty to take reasonable care to prevent injury to a person who comes onto their land. The element of duty in this case arises because the law recognizes the relationship between the plaintiff and the defendant. This required the defendant to act in a manner that is standard towards the plaintiff in offering care. Does this duty extend to entrant such as Grayson? Cregan Hotel Management Pty Ltd and Ahor v Hadaway [2011] NSWCA 338 – occupier owes a duty of care to entrants. SafeOnEarth had a duty of care to Grayson as the occupant which included providing a safe environment that protected Grayson to the exposure to Covid-19. From the given facts it is obvious that it was reasonably foreseeable that SafeOnEarth hotel (Defendant) conduct – allowed their guards to continue their shifts, when hotel authority knows that their guards were waiting for the test result of COVID – 19. This situation was a probable cause exposing Grayson (plaintiff) and other occupants to injury.

• From the given facts you need to determine whether there was a vulnerable relationship (position of reliance) between Grayson and SafeOnEarth hotel. The occupier (SafeOnEarth) hotel owes a duty of care to the entrants with the express or implied consent of the occupier. Whatever or not a person as occupier and, as a result, bound by such a duty, is a matter to be determined by the degree of control that person has over the premises. This includes both the entrants and the guards who are under the management of SafeOnEarth hotel.

From the given facts it is clear it was a vulnerable relationship (position of reliance) between Grayson (Plaintiff) and SafeOnEarth hotel (Defendant), as occupier owes a duty of care to the entrants. On the other hand, Grayson as (Entrant) could have protected himself with the necessary precautions against COVID – 19 infection.

• It can be argued that there was no obvious predominant risk of infection to preclude imposition of a duty of care in this circumstance.

Step 2- Was there a breach of the duty of care by SafeOnEarth hotel (Defendant)?

SafeOnEarth hotel will not be liable for failing to take precautions against a risk of spreading COVID-19 unless a) the risk was foreseeable; b) the risk was not insignificant; and c) a reasonable person in the position of the defendant would have taken precautions.

(a) Yes, there was a foreseeable risk. It was possible to continue the spread of Covid-19 within the premises provided that the guards were still on duty and was in close contact with the entrants including Grayson (the plaintiff). In this case, SafeOnEarth hotel would have or ought to have known of the risk of allowing the guards to continue their shifts, while they were waiting for the result of their COVID test.

(b) Yes, the risk is not insignificant. Grayson suffered serious health problems and showed the textbook symptoms of Covid-19 such us; a fever and cough, followed by shortness of breath, chest pain, and extreme fatigue. The risk is linked to the guard at the hotel who experienced Covid-19 symptoms but was still on shift at the SafeOnEarth hotel and showed epidemiological links to the hotel’s outbreak.

• From the given facts I would suggested that a reasonable management of SafeOnEarth hotel would have known and accepted the risks of leaving the guards to continue their shifts while they were waiting for the result test of COVID – 19 pandemic. The management of the hotel instead, left the guards on shift as they waited for their results even when they showed symptoms atypical of Covid-19. Also, considerations would have been given to the probability that the health damage would have occurred if care had been taken, such as guards undertook infection control training or at the very least wore personal protective equipment (PPE) at all times, the likely seriousness of spreading infection, which is high due to the facts of the case and the fact that there is no burden of taking precautions to avoid the risk of COVID – 19. In this case the burden would not have been inconvenient, or expensive or unreasonable – SafeOnEarth hotel could simply have done nothing at all and maintained the status quo.

Given that the risk was probable and significant and SafeOnEarth hotel could have taken reasonable precautions by ensuring their guards undertook infection control training and that they were wearing personal protective equipment (PPE) at all the times, it is likely that SafeOnEarth hotel breached their duty of care.

• By establishing these Grayson can argue that there was a breach of the duty of care by SafeOnEarth hotel (Defendant).

Step 3- Does SafeOnEarth (defendant) have a cause in fact for the damage caused in Grayson (plaintiff)

The plaintiff must establish that the actions of the defendant were the actual cause of injury. In this case, were it not for the negligent actions of the defendant, SafeOnEarth Hotel guards not abiding safety and health protocols, by wearing personal protective equipment at all times, then Grayson (the plaintiff) could not have suffered the health damage.

Step 4 – Was their proximate cause in the actions of SafeOnEarth (defendant) leading to injury on Grayson (the plaintiff)?

Proximate cause identifies with the extent of a respondent’s obligation in a carelessness case. A respondent in a carelessness case is just answerable for those damages that the litigant could have predicted through their activities. In the event that a respondent has caused harms that are outside of the extent of the dangers that the litigant could have predicted, at that point the offended party can’t demonstrate that the respondent’s activities were the proximate cause of the offended party’s harms. SafeOnEarth would have foreseen that not adhering to necessary precautions such as wearing protective gear at all times would lead to the spread of the infection in the hotel. Leaving the guards on shift while awaiting their COVID test was a significant risk, however, not wearing protective equipment at all times was a proximate causing which led to the plaintiff contacting Covid-19 while at the hotel. The actions are also proximate cause as the outbreak of the disease has an epidemiological link to the guards.

Step 5- Has Grayson (Plaintiff) suffered damage?

If Grayson has suffered actual damage or loss, was it caused by SafeOnEarth hotel breach of duty (causation) and was it reasonably foreseeable (not too remote)? A decision as to whether or not a breach of duty on the part of Grayson caused particular harm involves consideration of two elements:

(a)Factual causation—that is, if SafeOnEarth hotel had acted with their responsibility authority to ensure their guards undertook infection control training and wore all the time the personal protective equipment(PPE), would Grayson have suffered from COVID -19 symptoms? Did the defendant cause the harm?

(b)Scope of liability– that is, is it appropriate for the scope of the negligent person’s liability (SafeOnEarth hotel) to extend to the harm so caused. Before risk can emerge in carelessness a causal connection must be set up between the carelessness of the respondent and the injury for which the inquirer claims pay. The main obstacle that must be defeated is to show a verifiable association between the respondent’s carelessness and the injury (authentic causation). This is ordinarily chosen by the utilization of the yet for test: yet for the respondent’s carelessness, would the petitioner have endured the injury that the person in question did? In the event that genuine causation is fulfilled, the inquirer should then show that the respondent ought to be legitimately liable for the harm the petitioner has endured. This second strand of the causation enquiry may include issues of ‘lawful causation’, or, in other words thought of the impact of mediating acts, regardless of whether of the petitioner or of an outsider, happening between the respondent’s carelessness and the inquirer’s physical issue. It might likewise include thought of whether the litigant ought not need to pay for the full degree of the harm because it is viewed as excessively distant. Should SafeOnEarth hotel be held responsible for the health harm?

As the entrant (Grayson) is struggled to recover for weeks with symptoms such us; (a fever and cough, followed by shortness of breath, chest pain, and extreme fatigue) because of the occupier’s conduct, there should be little problem establishing the questions of causation and remoteness of damage. Grayson would probably not have been suffered but from SafeOnearth hotel failure to take precautions against the risk created by the hotel authority allowed them to continue their shifts without infection control training and wore personal protective equipment (PPE) at all times.

Step 4- Does SafeOnEarth hotel (Defendant) have any defences available to them?

Once Grayson establishes the three elements of Duty, Breach, and Damage, the onus then shifts to SafeOnEarth hotel to establish any defence to reduce or eliminate their liability.

Grayson may be faced with the problem of the occupier (SafeOnEarth hotel) raising the defences of voluntary assumption of risk, which is a complete defence, and/or contributory negligence, where fault is shared between the parties. These defences are incorporated into the Civil Liability Act 2002 (WA) ss 5K-5L.

• Voluntary assumption of risk

It occurs where the plaintiff positively consents to assume the risk of injury, thus absolving the other party from their duty of care and consequent liability to pay compensation. There must not only be knowledge of the risk, but also an appreciation of its dangerous qualities and a voluntary acceptance of that risk.

From the facts in this question, there was no voluntary assumption of risk. Grayson as had no symptoms of COVID-19, then collected his luggage and was transferred to SafeOnEarth hotel for his 14 days’ quarantine.

• contributory negligence

To determine whether or not a plaintiff has contributory negligence, the standard of care is based on a reasonable person in the position of the plaintiff, and the matter will be decided on the basis of what the person knew or ought to have known at the time.

Grayson has committed contributory negligence by not wore personal protective equipment (PPE) at all the time then discovered that one of the guards became symptomatic over the next few days. Given that is a public place (hotel) or similar where there would be obvious risks, the percentage is likely with 50%.

Step 5- What will Grayson (Plaintiff) recover?

In some jurisdictions, contributory negligence can effectively be a complete defence where an injured party can be found to be 100 or less per cent contributory negligent (ss 5K-5L, Civil Liability Act 2002 (WA)). In the given problem, contributory negligence will certainly apply, and the question would be to what percentage a court would be prepared to hold Grayson responsible for his actions.