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BUS107 Commercial Law T2 2017

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Kaplan Business School Pty Ltd

   

BUS107 Commercial Law (BUS107)

   

Added on  2020-02-24

BUS107 Commercial Law T2 2017

   

Kaplan Business School Pty Ltd

   

BUS107 Commercial Law (BUS107)

   Added on 2020-02-24

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BUS107 Commercial Law T2 2017 AssignmentAdvise For RebeccaIssue: After going through the facts that have been provided in this question, the issue is thatMichelle and Rebecca have gone to see a act of Oprah Winfrey. As there was matter related withticketing, there was a delay in the performance. During this time, both of them have some wineat the bar while they were waiting for the start of the performance. After the show had ended,Rebecca knew very well that Michelle was quite under the influence. However, she made adecision to ride with Michelle in her car. But very soon, Rebecca realized that Michelle had beendriving unsafely. As a result, she wanted to alight from the car and therefore asked Michelle tostop the car. However, Michelle kept on driving and very soon the car met with an accident. As aresult of this accident, Rebecca had to face serious injuries as well as a broken leg. Under thesecircumstances, Rebecca seeks advised if can take legal action against Michelle and also whatwill be the effect of the defense of contributory negligence, if pleaded by Michelle. The other issues are:-Is there a breach of duty of care by Michelle;The injuries suffered by Rebecca were caused as a result of Michelle's actions;Can Michelle rely on the defense of contributory negligence?Can Michelle rely on the defense of voluntary assumption of risk?Rule: Under the law of tort, contributory negligence is the behavior of the claimant due to whichsome contribution has been made in the injuries suffered by the claimant. Due to the reason that
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the claimant also failed to fulfill the standard of care that would have been fulfilled by any otherreasonable individual in such circumstances in order to avoid the injury or the loss that had beencaused to the claimant. Therefore, if such circumstances are present, the party that has beenaccused of negligence can rely on the defense of contributory negligence by the other party(Palmer and Davies, 1980). But in such cases it is worth mentioning that the respondent can rely on the defense ofcontributory negligence only if it can be established by the defendant that the claimant was alsoat fault in some way (Legg, 1999). Similarly, it also needs to be established that such fault hadcontributed in part, in causing the injury to the claimant. Another requirement of the law for thispurpose is that it should be established that in a particular case, it will be just and equitable todecrease the damages due to the reason that the claimant was also at fault (Seddon, 1999).Hence, in such cases there is a responsibility imposed on the defendant to establish that somecontribution has been made by the claimant in negligence (Lockhart, 1989). A relevant examplein this regard is that of Dann v Hamilton(1939). In this case, as it had been accepted by theclaimant that was offered by the defendant even if the claimant was well awarethat thedefendant was heavily intoxicated at the time. While deciding the case, it was mentioned by thecourt that defense of volenti non fit injuria is not available in such cases. However, the casewould have been different if there were some extreme circumstances present. For example, if thedrunkenness of the driver of the motor vehicle would have been obvious and therefore it can beconcluded that an evident and obvious risk was present, which had been knowingly accepted bythe other party. Another case that is relevant on the basis of the facts of this case is that of Owens v Brimmell(1977). Both the driver of the car and the passenger had consumed some wine. While returning,
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