Establishing Negligence in a Business Law Case

This article discusses the process of establishing negligence in a business law case. It explains the essential elements of negligence and their application in a real-life scenario. The article also explores the concept of vicarious liability and contributory negligence.

Running head: BUSINESS LAW
Business Law
Name of the Student
Name of the University
Author Note

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Question 1
Issue
The first issue in the present case is whether Marie can establish an act of negligence to be
present in the actions of the gardener that has caused her injury.
Rule
One of the area of the law of torts is the tort of negligence. This kind of tort requires a person
to fail to ensure a duty of care in his actions that he is supposed to ensure under a given set of
circumstances and, which have eventually caused injury to another person. The tort of
negligence is actionable by the person who has been injured by the negligent acts. However,
to claim damages and bring an action against the person indulging into negligent act, the
injured person needs to establish four essential elements relating to negligence is existing
within the act of the person, which is alleged to have been negligent. The first point that the
injured is required to prove to render a person to have acted negligently is the fact that the
alleged person has incurred a duty to ensure and maintain care in conformity with the norms
of the given circumstances. This can be further illustrated with the case of Stokes v House
With No Steps [2016] QSC 791. In the case Caparo Industries PLC v Dickman [1990] UKHL
22, it has been contended by the court that a threefold test can be applied to include an act
within the cover of negligence. This threefold test requires the existence of the duty to be
foreseeable, there needs to be a connection between the injured and the alleged and the duty
of care needs to be fair and just. The next thing that an injured is required to prove to claim
damages under negligence is that the person has contravened the duty that he has to exercise
care. This can be supported with the case of Liverpool Catholic Club Ltd v Moor [2014]
NSWCA 3943. Next to that, the injured is required to prove that the injury that has been
1 Stokes v House With No Steps [2016] QSC 79
2 Caparo Industries PLC v Dickman [1990] UKHL 2
3 Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394

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caused to him is the effect of the breach of duty that has been committed by the alleged
person. This can further be illustrated with the case of Reid v Commercial Club (Albury) Ltd
[2014] NSWCA 984. Lastly, the injured person needs to show that there exists a proximity
between the act of negligence and the injury caused to the person the relation needs to be
direct and not remote. This can further be contended with the case of Swan v Monash Law
Book Co-operative [2013] VSC 3265.
The existence of all these essential elements relating to negligence would render the negligent
person liable and would conferred the injured without interest that would amount to claim
damages. This can be illustrator with the case of Taylor v Haileybury [2013] VSC 586.
Application
In the present situation, the gardener has been employed for the repair of the garden in the
rooftop of a building. This work would require the gardener to ensure adequate safety
measures to be taken by the gardener to avoid accidents. This can be construed to be a duty to
ensure and maintain care in conformity with the norms of the given circumstances. This can
be further illustrated with the case of Stokes v House With No Steps [2016] QSC 79.
The gardener has notified the residents of the building to not access the rooftop during the
work. This can be construed to be an adequate measure. Hence, the gardener can be construed
to have contravened the duty that he has to exercise care. This can be supported with the case
of Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394.
Marie accessed the rooftop and broke her wrist slipping from a palm leaf and was taken to
the hospital. This incurred her a medical expense and a cancellation of a trip. This can be
construed to be an the injury that has been caused to him is the effect of the breach of duty
4 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
5 Swan v Monash Law Book Co-operative [2013] VSC 326
6 Taylor v Haileybury [2013] VSC 58

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that has been committed by the alleged person. This can further be illustrated with the case of
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98.
Moreover, Marie has slipped from palm leaf that has been present there owing to the
garden work being in progress. This can prove a proximity between the act of negligence and
the injury caused to the person the relation needs to be direct and not remote. This can further
be contended with the case of Swan v Monash Law Book Co-operative [2013] VSC 326.
As all the four elements of negligence has been satisfied, it can be contended that Marie
can establish an act of negligence to be present in the actions of the gardener that has caused
her injury.
Conclusion
Marie can establish an act of negligence to be present in the actions of the gardener that
has caused her injury.
Question 2
Issue
The second issue in the present case is whether Nilesh can be held responsible for the tort
of negligence that has been committed by the gardener causing damage to Marie.
Rule
Vicarious liability is a situation where a person is held liable for the torts of another. This
kind of liability is created when the person who has been held liable has a position where he
is in charge of the actions of another, whose torts has been holding the person in charge
liable. The vicarious liability is mostly evident when there is an agency relationship between
two persons that is to say the person committing wrongful act is acting on behalf of or within
the scope of the authority of the person in charge. However, to hold the superior or the person

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in charge liable for the wrongful acts of another person, the third party injured having an
interest needs to establish that the agent has acted within the scope of the authority that the
principle or the person in charge has extended upon him. This can further be illustrated with
the case of Cox v Ministry of Justice [2016] 2 WLR 8067. Vicarious liability is also evident
in the case of employer-employee relationship where employer can be held liable for the
wrongful or tortious act of the employee as evident from the case of Mohamud v WM
Morrison Supermarkets [2016] AC 6778.
Application
Nilesh has noticed the gardener to have been exhibiting excellence and hence discussed with
the CEO to subcontract him to other jobs. This has amounted to the employment of the
gardener for the garden work in the building, subsequent to which the negligent act and the
injury to Marie has taken place. This can be construed to be an existence of the vicarious
liability of Nilesh for the negligent acts of the gardener, as vicarious liability is also evident
in the case of employer-employee relationship where employer can be held liable for the
wrongful or tortious act of the employee as evident from the case of Mohamud v WM
Morrison Supermarkets [2016] AC 677.
Conclusion
Nilesh can be held responsible for the tort of negligence that has been committed by the
gardener causing damage to Marie.
7 Cox v Ministry of Justice [2016] 2 WLR 806
8 Mohamud v WM Morrison Supermarkets [2016] AC 677

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Question 3
Issue
The third issue in the present case is whether any damages towards the medical expense
and the trip cancellation expense will be available to Marie.
Rule
Contributory negligence can be said to have occurred if the person who has been injured
by a negligent acts of another has a reasonable involvement in the commission of the
negligence. Such an involvement of the aggrieved in the negligent act would render the
damages available to the aggrieved to have been reduced in proportion to the contribution.
This can further be illustrated with the case of T and X Company Pty Ltd v Chivas [2014]
NSWSCA 235.
Application
In the present situation, Marie has accessed the rooftop irrespective of the warning
dropped in the mailbox. This can be construed to be a contribution of Marie in the act of
negligence. Hence, the damages available to Marie will be reduced in proportion to the
contribution. This can further be illustrated with the case of T and X Company Pty Ltd v
Chivas [2014] NSWSCA 235.
Conclusion
Marie will get the medical expense but not the money lost by cancelling holiday.

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Reference
Caparo Industries PLC v Dickman [1990] UKHL 2
Cox v Ministry of Justice [2016] 2 WLR 806
Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394
Mohamud v WM Morrison Supermarkets [2016] AC 677
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Stokes v House With No Steps [2016] QSC 79
Swan v Monash Law Book Co-operative [2013] VSC 326
T and X Company Pty Ltd v Chivas [2014] NSWSCA 235
Taylor v Haileybury [2013] VSC 58