Mario was driving when he carelessly threw a banana out in front of Luigi. Luigi hit the Banana, spun out of control and hit the side wall of the track damaging his car and damaging his leg also and was hospitalised for the next few days.

After coming out of hospital Luigi E-mailed the other characters from the Mario Kart game saying Mario was unreliable, not safe to be around, a moron and that he should be removed from the game.

The two parties took each other to court.

Mario vs. Luigi Court case

Luke and Gary

NegligenceA person is negligent when they fail to take reasonable care and harm by the action/inaction is foreseeable.

There are 3 key principles of negligence:1. The person who was negligent owed a duty of care to the

injured person2. The duty of care was breached3. The Breach caused loss of damage

If you can prove these principles in court the person is able to claim damages from defendant.

Key principle #1The injured person was owed a duty of care if:• Was the risk foreseeable?

Yes, the risk was foreseeable as throwing a banana on a race course track is dangerous.

• The risk was significant?Yes, the risk was significant because if another racer hit the Banana they could spin out and damage their vehicle and be seriously injured.

• A reasonable person in the same position would have take precautions to eliminate harm?A reasonable would not have been able to eliminate harm after a unavoidable banana was thrown right in front of them on a track.

Breach of Duty of care• Did the defendant fail to do what a reasonable person would

of done?Yes, a reasonable person would not throw a banana out on the middle of a race track. The defendant broke the law in littering as well.

• What is a reasonable person?To consider whether the person is a reasonable person the court must consider

• Likely risk of harm of persons actions.• Likeliness of serious harm.• Burden of taking precautions to avoid the risk of harm.• The benefit of activity that creates the risk of harm.

Key principle #2

Key principle #3The breach caused the loss or damageWas the harm caused by the breach of the of Duty of care?The physical harm was caused by the breach of duty of care, when Mario threw the banana onto the track right in front of Luigi he broke the duty of care he owed to Luigi on the racetrack and caused damage to Luigi’s car and also caused the damage to Luigi’s leg.

DefencesThere are 3 main defences to negligence 1. The three elements of negligence were not breached.

- A duty of care was not owed.- There was no breach of duty of care- the harm injury was too far remote from the defendants action/inaction.

2. The plantiff helped to cause harm in some way or is partly to blame for the harm caused.

3. Individual accepts the risk of injury.

None of the defence above apply to this case.

Defamation

• The tort of defamatory is aimed at protecting the character of individuals against attempts to discreet their standing in the eyes of the community

Defamatory statement?

• Yes the statement was defamatory as Luigi emailed the other characters from Mario Cart saying that Mario was-

Unreliable Not safe to be aroundLuigi also said he was “a moron and should be

removed from the game”This has clearly proven that Mario’s reputation has been damaged by the email sent around by Luigi

Does the statement refer to the plaintiff?

• Yes the statement does refer to the plaintiff as Luigi explained in the email that Mario was-

Unreliable Not safe to be aroundA moron and should be removed from the

game

Was the statement published?

• Yes the statements were published other to just the plaintiff because Luigi emailed other members of Mario Cart including Bowser, Princess Peach, Wario, Yoshi, Toad and Donkey Kong. Yes Marios name was published

Defences

Justification- Luigi said that Mario was Unreliable, not safe to be around, a moron and should be removed from the game,

Justification says that is applies when a statement is substantially true.

Mario is not is not safe to be around, he did throw a banana in front of Luigi

• Absolute privilege- The defamatory material was published in relation to proceedings of parliament, courts, tribunals or communication between husband and wife

• This is defamatory as it was emailed towards the members of Mario Cart

• Honest opinion- This was a honest opinion of Luigi, it was based on proper material as Mario through a banana in front of Luigi causing him to be broken

• Triviality- Luigi said that Mario should be kicked of the game therefore Mario was harmed and triviality will be caused