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Assignment on Commercial Laws

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Added on  2020-05-16

Assignment on Commercial Laws

   Added on 2020-05-16

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Commercial Law
Assignment on Commercial Laws_1
2Commercial LawIssueWhether the damages caused to Tamara can be claimed by her against Aldi Supermarkets(AD), under the tort of negligence, or not?RuleTo put the definition of negligence in the simplest of terms, it is the contravention of the obligation of care, which was foreseeable and which resulted in injury or harm or loss to the other party (Harvey & Marston, 2009). To establish the case of negligence, the injured party has to show in the court that they were owed a duty of care by the defendant, which was substantial in nature, not too remote and reasonably foreseeable (Gibson & Fraser, 2014).To establish a duty of care, the conditions laid down in Caparo Industries plc v Dickman [1990] 2 AC 605 have to be applied. This case provides that the obligation of care is present when there is proximity between parties, imposed penalties being fair, and risk of injury being foreseeable (Lunney & Oliphant, 2013). For duty of care, Donoghue v Stevenson [1932] UKHL 100 is also of assistance. This case held that proximity and foreseeability of this case resulted in a duty of care being owed to the customer by the manufacturer (Latimer, 2012).Once the duty of care is established to be present, its breach needs to be established. An example of this is Paris v Stepney Borough Council [1951] AC 367 in which the defendant was deemed to have contravened their duty of care for by not providing the safety gear to the plaintiff(Martin & Lancer, 2013). There is a need to show that the injury or loss had really taken place and in doing so there was a need to adopt the view of a reasonable person as was seen in Wyong Shire Council v. Shirt (1980) 146 CLR 40 (Jade, 2018). Where the losses are remote, the
Assignment on Commercial Laws_2
3Commercial Lawdamages are not paid and an example of this is Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2 (H2O, 2016). There is also a need to prove that there was direct causation between the injury which happened and the contravention of obligation of care. In Donoghue v Stevenson, the failure of the manufacturer in keeping the contents of bottle unadulterated caused in direct sickness of the plaintiff (Latimer, 2012). Once these are shown, the damages are awarded to the plaintiff. But for this purpose, there is a need to apply “but for test” given in Barnett v Chelsea and Kensington Hospital [1969]1 QB 428. This test provides that the damages have to be awarded to the plaintiff when they can show that the harm to them would not have been caused had the negligence by defendant not been undertaken (Strong & Williams, 2011). There are different defences which can be raised by the defendants where the plaintiff makes a case of negligence against them. These help in reducing the amount of compensation to be paid by them to the plaintiff, in proportion to the part played by the plaintiff in their injuries. Contributory negligence, as the name suggests, shows the contributions made by the plaintiff in their harm (Latimer, 2012). Froom v Butcher [1976] 1 QB 286 is an example of this concept where the plaintiff had his awarded damages reduced by the court, as the family was not wearinga seat belt, when the accident happened owing to the negligence of the defendant (Swarb, 2018). ApplicationAs per the facts given in the problem scenario, a possible case of negligence is attempted to be raised by Tamara against AD. However, in order to do so, the points established in the rulessegments have to be fulfilled. The first requisite is to show that AD owed a duty of care to Tamara. For this purpose, duty of care would be owed by AD to Tamara, based on Donoghue v
Assignment on Commercial Laws_3

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