IssuesThe basic issues that originate from the facts are:
Relevant lawUnder the law of negligence, a wrongdoer is liable to the injured if any injury is caused to the injured due to the wrongful acts on the part of the wrongdoer. The liability of the wrongdoer arises only when there is duty of care casted upon the wrongdoer and he does not fulfill the said duty and thus the resultant breach is the reason for the loss or injury to the injured. In Donohue v Stevenson (1932), the law of negligence was evolved. The basic ingredients required to prove negligence are :
ApplicationIssue A Jack and Thea, age 88 and 82 respectively, have taken a holiday on the advice of Gail as she generally takes the holiday herself before recommending the same to her clients. Gail recommended them Priscilla Tours Pty Ltd (‘Priscilla’). Bob the employee of Priscilla was taking care of the trip of Jack and Thea. In March 2016 during the trip there was rain so bus had to take a lot of detours due to closing of roads. Bob found out a suitable view which was close to the hotel and he told the tourist that it involved climbing of hill which was a little bit steep, but he suggested that if one can climb stairs then they can go easily. But the route was in turn actually steeper and there were a lot of loose rocks on the trail which were also slippery . Jack and Thea insisted to continue. Unfortunately Jack thus slipped and got injury on his knee. In the instant case the duty of Bob was to provide safe trip to Jack and Thea and considering their old age the responsibility of care was much more than in general it would had been. There is a duty on Bob as Jack and Thea were neighbors of Bob because any act or omission of Bob will directly impact both Jack and Thea. However, the duty same is breached by him as he suggested a climb which was very step, includes loose rock and is not at all suitable for the climbers who are aged. Bob did not give importance to the hurdles because he himself was 32 years old and comparing his age with the age of Jack and Thea he was quite young. Thus, there is a clear breach because of which injury is caused to Jack. So, Bob is negligent in his actions. However, Bob can take defense of contributory negligence as Jack and Thea in spite of their old age continued the journey and thus it was their choice to take walk. Jack and Thea took the walk even when they are aware that the climb was much steeper as predicted by Bob. Thus, they were contributory negligent in instant case. Also volenti non fit injuria defense can be taken by Bob as he had already told that the walk would be steep but they assented to go for the journey and thus jack was injured on the way while walking. It is advice to Priscilla that it must in future organize trips according to the age of clients and must incorporate an exclusion clause in their manual and warnings and notices of the situations must be given to clients from time to time on trip and thus they must communicate their clients of prospective risks that may follow. Issue 2 Gail is an expert in his field as he is a travel agent and he gave his advice to Jack and Thea and they relied upon same as they had been dealing with her for last 20 years. Jack and Thea were of the view that Gail herself had taken the trip prior recommending the same to them but Gail had not been on the said trip ever. Gail advised Jack and Thea that they had not to walk much during the trip but the reality was different as there was relatively steep walk, approximately 3 kilometers and Bob suggested that who so ever climb stairs can should move forward. As Jack and Thea relied upon the advice of Gail and thus took trip so Gail must had taken reasonable care while rendering advice to them and thus proper skill must had been applied by Gail prior providing advice to them which was in turn not done by Gail and Jack and Thea had thus suffered because of ill advice on part of Gail. Considering the age of Jack and Thea the advice must had been more carefully as the duty of care varies with the situation but Gail did not advised properly and thus injury was caused to jack. It is advice to Gail that in future Gail he must tender advice truly and thus if she had not visited the place she can just give her views and thus it may be in form of suggestion and not conclusive or she can have exclusion clause while giving advice.
ConclusionHence Bob is negligent and has not taken reasonable care which he must had been taken and thus will be liable to Jack and Thea but he can take the defense of volenti non fit injuria or contributory negligence. Also, Gail had made negligent misstatements and thus will be liable towards Jack and Thea.
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