Australian Corporation Law

10 Pages2629 Words105 Views

Added on 2021-06-18

Australian Corporation Law

Added on 2021-06-18

BookmarkRelated Documents

Running head: AUSTRALIAN CORPORATION LAWAustralian Corporation LawName of the StudentName of the UniversityAuthor Note

1AUSTRALIAN CORPORATION LAWAnswer 1: There is a duty of care on the part of an individual towards another person in regard totheir contractual obligations according to the principles of law of negligence. Therefore, it isimportant on the part of such individual to apply certain measures in order to avoid the risk thatcan be aroused as a result of negligent action by such individual. In this regard, it is noteworthyto mention here that, the nature of the risk involved must be such that any person of reasonableprudence could possibly foresee. In order to establish successful claim for negligence, it isimportant that the aggrieved party must emphasize upon the following essentials-I.The defendant is at the duty to maintain duty of care. II.There must be a breach of such duty of care.III.As a result of such breach, the plaintiff has been injured.The concept of duty of care was first established in the famous case of Donoghue vStevenson [1932] A.C. 562. In this case, it was held by the Court that there is a duty of care onthe part of the manufacturer towards the customers. The term ‘neighbor principle’ was alsoestablished in this case. The neighbor principle has been applied by the Courts for the purpose ofproviding appropriate remedy to the injured parties as a result of negligence. Similarly, in thecase of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 there involved anegligent statement on the part of a bank which breached the duty of care owed by the plaintiff.However, in the case of Caparo Industries PLC v Dickman [1990] UKHL 2, the neighborprinciple has been efficiently emphasized. In this case, the Courts applied the tripartite test inorder to emphasize upon the neighbor principle by relying upon the nature of foreseeability,proximity and justice and fairness. Therefore, it is worth mentioning that, a neighbor under the

2AUSTRALIAN CORPORATION LAWlaw of negligence is referred to as the person who can suffer loss or injury due to negligent actby the other party. It is worthwhile to refer here that, according to the provisions of the WrongsAct 1958; the subject-matter of duty of care can be briefly explained. For the purpose of establishing that there has been breach of duty of care, the Court is atthe authority to investigate into the matter that whether the act of the defendant was such that itcaused breach to the duty owed by the plaintiff. The Court shall determine that whether thedefendant has taken reasonable care while exercising his duty. However, the nature of the carewas such which caused injury to the plaintiff. In this regard, the principle of res ipsa loquitor canbe emphasized which states that, the facts of the case itself reveal the truth. It is required that the plaintiff must prove that the damages caused to him are as a resultof action of the defendant. For this purpose, the plaintiff can rely upon the ‘but for’ test in orderto establish that the injury caused to him is due to the act of the defendant. In order to bringsuccessful claim under the law of negligence, it is important on the part of the plaintiff toevaluate the facts which is the actual causation of the injury. In this regard, the provisions ofSection 51 of the Wrongs Act 1958 can be emphasized which states that negligence is occurredby the factual causation of harm and it is important for the plaintiff to establish that suchcausation of harm contributed towards his injury. Similarly, in the given case study, there was a major defect in the kitchen applianceprovided by Thermomix appliance and as a result of which the plaintiff suffered injury. In thisregard, the case of Donoghue v Stevenson [1932] A.C. 562 and Caparo Industries PLC vDickman [1990] UKHL 2 can be applied. This is due to the reason that there is always a duty ofcare on the part of manufacturers towards their customers. At the same time, it is also important

End of preview

Want to access all the pages? Upload your documents or become a member.

(Solution) Commercial Law - Assignment

|2553

|103

Commercial law - Sample Assignment PDF

|12

|3305

|19

(Doc) Commercial Law : Assignment

|1387

|36

Negligence and Pure Economic Loss in Construction: A Case Study Analysis

|10

|2398

|112

Commercial law : Sample Assignment PDF

|14

|3265

|20

Assignment - Commercial Law

|11

|3159

|14

Australian Corporation Law