Establishing a Tort of Negligence in Business Law


Added on  2022-12-19

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Running head: BUSINESS LAW
Business Law
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For establishing a tort of negligence, Archana must prove that the elements that
constitute negligence under common law are present in her cause of action. In the case of
Donoghue v Stevenson [1932] AC 562, the essential requisites of negligence was discussed
which involves a duty of care of the tortfeasor, Breach of such duty by the tortfeasor, actual
loss or damage arising due to such breach, Foreseeability of the risk and Proximity between
the claimant and tortfeasor. Therefore to constitute an act of negligence, Archana must prove
that Ravi had a duty of care towards her and that he breached such duty. In addition, she
should also prove that her proximity with Ravi ensures that he had a responsibility to take
care of her. In order to claim damages from Ravi, Archana must prove that the injury
sustained by her is the result of the negligence caused by Ravi. Finally, her claim must look
fair, just and reasonable to the court to grant her damages. While, Ravi on his defence must
prove that there were certain aspect in this case which prevented him from taking care of the
safety of Archana.
A person owes certain duty of care towards another in case such other person is in
such a position that makes the person liable to take care. The proximity of relationship
between the claimant and the defendant must be such that it makes the defendant liable to
commit to take care of the claimant. To constitute that a person is bound by duty of care
towards another, it must be proved that: a) there is a proximate relationship between them
which allowed the defendant to foresee or assume that there could be a risk, and b) presence
of fair reason behind the responsibility of the defendant as held in the Anns v Merton
London Borough Council (1978) AC 728. In this case, apart from being Archana’s friend,
Ravi was the manager of the restaurant for the night and had the responsibility to ensure the
safety of all the customer. He must have ensured that the mess formed in front of the entrance

was cleared so that no one would slip off and get hurt. Ravi was entrusted with the safety and
security of the customer whoever visited on that night and not just Archana. Applying the
principles held in Caparo Industries plc v Dickman (1990), 2 AC 605 or the Caparo Test,
Archana would be liable to prove that there was a scope of: a) Foreseeability, b) Proximity
and c) Fairness in order to establish that Ravi owed a duty of care towards her and all other
customers whoever visited the restaurant and could have faced the accident. As the manager
of the restaurant, it was Ravi’s duty to see that Archana had sneaked in liquor into
McDonald’s and that she was intoxicated. In addition, Ravi had the duty to make sure that the
mess was clear as soon as possible so that no one had faced in any injury. Therefore, it can be
constituted that Ravi had a duty of care towards Archana as well as other customers too, even
though no one else was hurt.
After establishing the fact that Ravi owed a duty of care towards Archana, now it
must be proved that he breached his duty of care towards her. In Hall v Brooklands Auto-
Racing Club [1933] 1 KB 205, the phrase standard of a reasonable person’ was discussed
as a man of ordinary prudence and was held that the existence of a duty of care is to be
judged from the point of view of a reasonable person along with the fact that such duty of
care has been clearly breached from the same point of view. In the same case, the Objective
Test was established by the court where it was held that the breach of duty of care could be
judged by any reasonable person or a man of ordinary prudence who would have done what
was needed to be done in order to protect the claimant from the probable injury. The test for
proving the breach of duty of care by a person has been held in the Civil Liability Act 2003
(Qld). Section 9 of the Civil Liability Act states that a person can be held negligent for failing
to carry out his duty of care when and there was a foreseeable risk which he did not
see that could have been easily seen by any other man of ordinary prudence if they
were in the defendant’s position,

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