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Assignment on Elements of Negligence

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Added on  2020-05-16

Assignment on Elements of Negligence

   Added on 2020-05-16

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Running head: ELEMENTS OF NEGLIGENCEElements of NegligenceName of the StudentName of the UniversityAuthor Note
Assignment on Elements of Negligence_1
1ELEMENTS OF NEGLIGNCEIssue:The issues which can be observed in the case study are-1)Whether Josh Marsh was negligent in his act?2)Does Wajiha have the right to claim damages from Josh?Rule:According to the principles of Australian Common law the provisions dealing with theconcept of negligence has been depicted in Smoldon v Whitworth & Nolan [1997] PIQR P133,CA. However the legal provisions of negligence in the beginning were established in Donoghuevs Stevenson [1932] AC 562. In the case the claimant has ordered Ginger beer in a café. The beercontained remains of a decomposed snail which was discovered by the claimant after consuminghalf of the contents. Mrs Donoghue claimed damages from the manufacturer however such claimwas upheld as it was required to establish that whether the defendant was negligent in his action.It was required to prove that:There was a duty to take care on the part of the defendant.There was a breach of such duty.The damage was caused as a result of an act of the defendant.The damage must cause consequential harm to the plaintiff.Duty to take care:In order to establish negligence it is necessary to prove that there was a duty to take care.It is essential to prove that the defended had a duty to take of the plaintiff. However, in order toexamine the duty of care Caparo test is applied by the Court. The Caparo test was first applied in
Assignment on Elements of Negligence_2
2ELEMENTS OF NEGLIGNCECaparo Industries pIc v Dickman [1990] 2 AC 605. The test was conducted with an objective toassess the actions of the defendant which he could foresee as harm caused to others. In this caseit was observed that defendant did not owe duty of care as the existence of Caparo was notknown to the auditors. Proximity did not exist between the auditors and Caparo. Breach of duty:It is essential to establish that breach of duty was caused on the part of the defendant. Inorder to prove negligence breach of duty is an essential element. The test was applied by theCourts with an objective to determine that whether the defendant has caused breach of the dutyowed to him by the plaintiff. This kind of test was first enforced inAnns v Merton LondonBorough Council (1978) AC 728.In this case due to poor ventilation the haystack of thedefendant caught fire. However, the defendant stated that the decision was taken by him in hisbest judgment. I was held by the Court that the evidences were not enough to support thestatements made by the defendant and his actions can be judged by a reasonable person. Theobjective test was conducted in order to identify that whether the defendant acted negligently orhave taken additional care. In this regard, if it is proved that such reasonable person instead oftaking additional care of the duty owed to him by preventing any damage then in such cases itwill be held that the defendant has caused breach of his duty. Causation:Causation is the third essential element in establishing negligence. It is necessary to provethat the damage caused to the plaintiff was as a result of the negligent act of the defendant. Insuch cases the courts generally apply the “but for” test in order to determine that damage wascaused as a result of the negligent act of the defendant. In Mc Williams (Cummings) V Arrol &
Assignment on Elements of Negligence_3

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