The Businesses Operating in Australia (Statsky, 2011)
Added on 2020-04-01
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ASSESSMENT 32A civil wrong done, is the best manner of defining what a tort is. There are a number ofdifferent torts, which become applicable on the businesses operating in Australia (Statsky,2011). The leading ones amongst these are the tort of negligence and that ofmisrepresentation. For making a case under any of these torts, the claimant has to show thatcertain requirements were fulfilled. These requirements differ, based on the particular tortbeing committed. There are leading case laws which help in establishing these torts and theconsequences of them, and are based on real life scenarios (Trindade, Cane and Lunney, 2007).In the following parts, an attempt has been made to consider and to present the key pointswhich relate to these two torts, where not only the requirements for establishing these arehighlighted, but the possible defences which can be cited by the injured party, have also beenexplained. Apart from this, the claims which can be made by the injured party have also beenhighlighted, in addition to the different other torts which can result in damages for thebusiness, particularly in terms of the compensation to be given to the injured parties. The most prominent tort, in any nation, and for any entity is that of negligence. Undernegligence, the person who owed an obligation of care towards another person fails toundertake this obligation and the actions undertaken by them injure or harm the other party, ina significant manner (Kolah, 2013). In order to make a case of negligence, there has to bepresence of certain key elements. And these are the obligation of care, its contravention,resultant harm or loss, harm being reasonable foreseeable, direct causation, remoteness of lossand proximity between the parties. The presence of all these components is obligatory formaking a successful case of negligence (Kennedy, 2009).
ASSESSMENT 33The first step in contract formation is showing that one person owed the obligation of caretowards the other. And in this regard, the threefold test comes in handy, which was given inCaparo Industries plc v Dickman [1990] 2 AC 605 case (Lunney and Oliphant, 2013). This caseprovided that three separate requirements needed to be present, to state that a duty of carewas present and these three things are fairness of a penalty being imposed, the proximityamongst the parties, and the loss to be rationally predictable (E-Law Resources, 2017a).Donoghue v Stevenson [1932] AC 562 is often cited for establishing duty of care in Australianjurisdiction, even when it is an English case. This case helps in establishing duty of care on thebasis of reasonable foreseeability of harm and the relationship between the consumer and themanufacturer (Latimer, 2012). The second component for making a case of negligence is the contravention of the obligationof care. In Paris v Stepney Borough Council [1951] AC 367, the Council was said to havecontravened this obligation, by not providing the requisite safety gear to Paris, which ultimatelymade him completely blind (Martin and Lancer, 2013). The next requirement for making a caseof negligence is the presence of direct causation, whereby it has to be shown that a particularinjury was the result of the breach of obligation of care. Further, the loss has to be substantialand cannot be remote, for the damages to be awarded to the plaintiff (Turner, 2013). The nextcomponent is proximity between the parties, as per which, the parties need to have such arelationship between them, whereby the actions of one, injure the other. There is also a needto show that the probability of loss was present in a reasonable manner and for this, the viewof a reasonable person has to be take, as per Wyong Shire Council v Shirt (1980) 146 CLR 40(Jade, 2017a).
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