Commercial Law Essay

A) The topic concerning this case is negligence law. The issue is whether Simon would be successful perusing a negligence claim.

The tort law section that falls into this case is negligence. Negligence is made up of three elements which determine negligence and duty of care is owed in this case State of Victoria v Bryar [1970] 44 ALJR 174.

The tort of negligence is the term used to categorise behaviour that poses substantial risks to other people and property.

shall be liable to the party injured in an action at law, Suit in equity, or other proper

The Tort of Negligence put the claimant in the position to prove that the defendant owed to them a duty of care, the defendant breached that duty and the claimant must have suffered damages as result of that breach (Donoghue v Stevenson [1932] AC562).

Negligence is when somebody has a duty of care and that duty is breached. Negligence is split into 3 parts.

In Caparo Industries plc v Dickman7, it was determined that courts had to test the duty by “whether the damage was reasonably foreseeable, whether there was a relationship of proximity between claimant and defendant, and whether it is just and reasonable to impose a duty.”8 If so, then a duty of care could arise.

Negligence occurs when a citizen has suffered loss due to the carelessness of another. The first element of a negligence case is to find if the duty of care, the obligation of an individual to hold responsibility while performing any acts affecting others, is breached (Negligence and the Duty of Care, 2013). The Supreme Court of Queensland’s decision in May 2011, during the trial of French v QBE Insurance (Australia) Limited [2011] QSC 105 demonstrates how a taxi driver breached his duty of care and therefore, would be liable for the death of his passenger (Hamilton, 2011).

From the beginning of this litigation, Appellant has argued that his Property was damaged by Respondent’s negligence and that he is entitled to compensation for this damage to his Property.

Negligence is the most common type of liability case that healthcare organization face. It often occurs when a person fails to hold up to the accepted standards of behavior. There are four elements essential to proving negligence: 1. a duty of care, Duty is a legal obligation the defendant owes to the plaintiff. In a negligence case the duty is most commonly expressed as a general obligation to act with care in other words to conduct oneself as a reasonably prudent person would do in similar circumstances. 2. Breach of that duty: A breach of duty occurs when one person or company has a duty of care toward another person or company, but fails to live up to that standard.  A person may be liable for negligence in a personal injury case if his breach of duty caused another person’s injuries. Once the duty has been established, the plaintiff must show that it was breached by presenting evidence of the facts of the case and testimony from expert witness which is usually the same witness who established the duty in the beginning. 3. injury: Damage or harm

In the case of Charlotte and Sam, sections 29-33 of the Civil Liability Act 2002 (CLA) can be used to discover whether Sam owed a duty of care to Charlotte. Under S32 the proximity to the event, the relationship of the plaintiff, a sudden shock, and the reasonable foreseeability of the harm were included as circumstances of the case that the defendant could be liable for. The case of Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) supports section 32 of the CLA in establishing that a duty of care is

Does conduct of Phillip amount to negligence? To what extent is Phillip liable in tort for the economic loss that has occurred to Jane and Tom?

Torts of negligence are breaches of duty that results to injury to another person to whom the duty breached is owed. Like all other torts, the requirements for this are duty, breach of duty by the defendant, causation and injury(Stuhmcke and Corporation.E 2001). However, this form of tort differs from intentional tort as regards the manner the duty is breached. In torts of negligence, duties are breached by negligence and not by intent. Negligence is conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm(Stuhmcke and Corporation.E 2001). The standard measure of negligence is the universal reasonable person standard. The assumption in this case is that a reasonable

It is apparent that Steven was not paying enough attention when crossing the road on the night of the accident. Thus, Steven was, to a degree, also negligent as he did not adequately check that the road was clear. When deciding the degree of contributory negligence the courts must look at what reduction of damages pay-out is "just and equitable having regard 's to the claimant 's share in the responsibility for the damage". In order to reach a percentage of blameworthiness for each side, a broad comparison must be made of both the individual contributions from the pursuer and the defender, looking at both the causation of damage and the blameworthiness.

The purpose of this assignment is to discuss the creation and application the case law resulting from the decision in Donoghue v Stevenson . This decision is often cited in relation to the tort of negligence and a duty of care. As such it could be misunderstood as being the preeminent case for the principles of negligence or duty of care alone. It is however the landmark precedent case for the tort of negligence outside of a contract when taking into account ‘duty of care’ and the ‘neighbour priciple’.