Business Law: Negligence and Duty of Care

Running head: BUSINESS LAW
Business Law
Name of the student
Name of the university
Author note

1
BUSINESS LAW
Issue
Do Mary and Cliff hold the right to claim against Susan for negligence for the damage that
has been caused to them with regards to the property they hold?
Rule
Negligence means an individual fails to take reasonable care so that he can avoid causing
damage or harm to another person. In order to prove negligence, there are four steps that the
plaintiff has to prove and they are as follows:
 Duty of care
 Breach or violation of duty
 Damage and
 Causation
There are two cases that have discussed the rules of the negligence in Australia and they are
Australian Knitting Mills, Ld. v. Grant [1933] 50 C. L. R. 387 and the eminent English
case Donoghue v. Stevenson [1932] AC 562. The court had stated in these cases that a
prudently predicted damage will help in the growth of duty of care. Prudently predicted
damage is determined impartially. This states that the defendant does not have to reasonably
predict the damage, but a prudent person has taken the place of the defendant. Certain
features are there that a prudent individual may consider predicting the damage (Stickley
2016). These features include proximity and closeness to the damaged individual with the
respondent. Furthermore, it has to be taken into consideration that the applicant who was
injured is not the matter of purpose, if any individual who would have been in the place of the
applicant would have suffered the same loss.

2
BUSINESS LAW
According to the case of Perre v Apand (1999) 198 CLR 180, the elements that are required
to be considered for determining the duty of care are the factors like degree of closeness and
proximity between the defendant and the plaintiff, certain example cases where a duty was
identified, an individual’s ability to control damage and any kind of legal policy that asks to
enforce a duty.
As per the case of Ultramares Corp v Touche, Niven & Co 174 NE 441 (1931),a rule was
made by the judges that no duty of care will be there in the circumstances that leads to the
legal responsibility in time, amount and class that is not uncertain (Porter 2017). The
provisions formed by the judge means that though a duty of care might be identified in
theory, if this duty will lead to the uncertain factors then the court will deny this.
The factors of the breach of duty need analysis following to the identification of the duty. The
tests that have been deployed to study the violation include likelihood and seriousness of the
damage, social utility of the activity and burden of taking care.
“Objective Test” is that test that has been taken to study the breach. A reasonable person has
taken the place of the respondent for the study to see if the care that has been taken is
prudent. In the given case Blake v Galloway [2004] 3 All ER 315, this test has been applied.
Bolton v. Stone [1951] AC 850 is that case that has dealt with the rule of possibility of the
damage. According to the given case, it can be explained that if the chances of the damage is
high in case he or she fails to take care reasonably then the duty will be violated (Stark 2016).
On the other hand, if the chances are low regarding that the prudent person will forget the risk
then this failure will not lead to the violation of the duty.
According to the case of Latimer v. AEC Ltd [1953] AC 643, the provisions for burden of
taking care were discussed. It was cleared by the court that the duty enforced on the person