Establishing Negligence in a Business Law Case

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

BUSINESS LAW1
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

BUSINESS LAW2
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