Law experts?? Tort of Negligence Question

kodirl

Can anyone help me with the below question? Clearly there is negligence on behalf of the captain but what about the children and first mate? Do the children by not putting on a life jacket when instructed to do so fall under contributory negligence or is the first mate negligent by taking the children out to sea without ensuring that they are wearing life jackets? I'm not looking for someone to do the question for me, just some guidance. Thanks

At a recent regatta in the seaside town of Summer Bay, Captain Hawkeye instructed his employee ‘First Mate’ to take out 50 children for a trip on his recently purchased boat ‘The Oyster’. Half way through the journey, while the boat was making a turn in the bay, it capsized drowning five children and injuring a number of others. Some of the children killed or injured were not wearing their life vest which they had been told to put on. Captain Hawkeye knew the boat was not seaworthy when he told First Mate to take the children out and in fact had been requested only the day before by the shipbuilders to bring it back for urgent repairs. The parents of the children are distraught
and are considering taking a case in negligence against the shipbuilders, Captain Hawkeye and First Mate.

Discuss the legal implications of this situation including the relevant area of law, explain the evidence that would be required in any legal action arising from the circumstances, the possible witnesses that could be necessary with the facts of the case and explain the impact of any contributory factors, arising from the conduct of the injured parties, on the outcome. Consider the liability of the shipbuilders, Captain Hawkeye and First Mate.

hullaballoo

Big question is whether children can be guilty of contributory negligence.

I'd start looking there.

kodirl

hullaballoo wrote: »

Big question is whether children can be guilty of contributory negligence.

I'd start looking there.

Perfect. Thank you for comment.

GM228

hullaballoo wrote: »

Big question is whether children can be guilty of contributory negligence.

I'd start looking there.

I'm thinking McNamara vs ESB [1975] IR 1 would be a good start

Big question of course would be the childs age and associated perception of danger, and of courae lets throw in the "agony of the moment" doctrine for good measure.

kodirl

GM228 wrote: »

I'm thinking McNamara vs ESB [1975] IR 1 would be a good start

Big question of course would be the childs age and associated perception of danger, and of courae lets throw in the "agony of the moment" doctrine for good measure.

Thanks. Is the manufacturer (shipbuilder) negligent for producing a defective product or are they exempt as they notified the captain?

Samuel T. Cogley

Is there scope for a very brief discussion of corporate manslaughter here. Thinking Herald of Free Enterprise etc.

GM228

Samuel T. Cogley wrote: »

Is there scope for a very brief discussion of corporate manslaughter here. Thinking Herald of Free Enterprise etc.

We don't have any corporate manslaughter offences in Ireland, though in theory a charge of gross negligence manslaughter could be applied, to date it has never happened AFAIK.

My previous thread on the issue didn't last long.

https://www.boards.ie/vbulletin/showthread.php?p=104758946

GM228

kodirl wrote: »

Thanks. Is the manufacturer (shipbuilder) negligent for producing a defective product or are they exempt as they notified the captain?

Depends on the circumstances, but generally if they supplied the product in a defevtive state then yes there would be liability, and remember the doctrine of privity of contract does not apply.

I feel we are doing someone's homework here

Marcusm

hullaballoo wrote: »

Big question is whether children can be guilty of contributory negligence.

I'd start looking there.

Surely jurisdiction should be determined first. Is anyone expert in New South Wales law as would seem to be relevant here?

Happdog

May be worth looking at section 6 of the S.I. No. 921/2005 - Pleasure Craft (Personal Flotation Devices and Operation) (Safety) Regulations 2005

http://www.irishstatutebook.ie/eli/2005/si/921/made/en/print

In effect responsibility for life jackets on children should rest with the crew.

Victor

Marcusm wrote: »

Surely jurisdiction should be determined first. Is anyone expert in New South Wales law as would seem to be relevant here?

Actually, this is a remarkably important point to make, given that several Australian states / territories place restrictions on negligence claims. However, they may have their equivalent of McNamara.

We await Peregrinus.