Did Jack owe Paul a legal recognizable duty of care

This is a paper that focuses on did Jack owe Paul a legal recognizable duty of care. The paper also provides a brief description of the case scenario.

Did Jack owe Paul a legal recognizable duty of care

QUESTION
Kevin operates fishing tours off the Slippery Coast in South East Queensland. Kevin has a small boat. The marine authority, which regulates licensing for tourist operators, has determined that Kevin’s boat can safely accommodate two passengers at a time.

Simon has invited his brothers, Paul and Mark, to come from Victoria to the Slippery Coast for a holiday. Additionally, Simon arranges to take a fishing trip with his brothers on Kevin’s boat the morning after they arrive.

Kevin was unwell that morning and told his son, Jack, to take the boat out. Jack is 16 years of age and does not have a boating licence. Jack decides that it will be all right to take three people out because the regulations are very conservative. Lastly, Jack knows that other operators frequently exceed their limit. He makes sure he has three lifejackets on board for his passengers.

The brothers arrive early at the dock to board the boat. Jack notices that the three brothers are all very large men. On boarding Paul also notices a sign attached to the boat, which says ‘Lifejackets must be worn at all times.’ Paul thinks that a jacket would be hot and uncomfortable and ignores the sign. The weather looks fine. They head out to sea.

Around 9:00am a sudden storm hits the boat and it takes on water. Jack struggles into a lifejacket. He yells to the others to put theirs on. Paul can’t hear him above the sound of the water lashing the boat. He sits with his head down against the rain, hanging onto the side. A big wave hits and the boat capsizes. Jack, Simon and also Mark surface from under the water and hang onto the upturned boat. Paul surfaces some minutes later, unconscious. Simon grabs Paul and hangs onto him.

The four men are rescued within the hour by a coast guard patrol. Paul is revived and also rushed onshore to hospital. Paul however has sustained significant brain damage due to nearly drowning.
Evidence reveals that the excessive weight of the passenger load contributed to the capsizing of the boat.

Paul comes to you for advice. He wishes to sue Jack in negligence.

Answer the following questions:
Firstly, did Jack owe Paul a legally recognizable duty of care at the time of the incident? (15 marks)

Secondly, if Jack owed Paul a duty of care, did he breach that duty of care? (20 marks)

Thirdly, could Paul prove the element of damage in an action in negligence against Jack? (10 marks)

Fourthly, what defence, if any, could Jack raise against Paul? How would proof of a defence affect Paul’s claim? (15 marks)

Lastly, what remedy could Paul claim against Jack? (5 Marks)