Case Study Assignment 2022

Running Head: CASE STUDY
CASE STUDY
Name of the Student
Name of the University
Author’s note

CASE STUDY2
Issue:
The issue in the case is whether Joe and Kamala have the right to sue in tort of
negligence.
Rules:
Negligence is the failure of the defendant to exercise his duty of care being owed towards
the plaintiff and such failure has amounted to the breach of duty and such breach has caused
harm to the plaintiff. The leading case law in the aspect of recognition of negligence is the
Donoghue vs. Stevenson [1932] UKHL 100. In the given case law, it was decided by the court
that every person owes the duty of care towards the other person and any failure in exercising
such duty shall amount to liability for damages incurred by the breach of duty. Grant v
Australian Knitting Mills [1935] UKPC 62 is the leading case law that has contributed to the
development of the theory of tort of negligence in Australia. Therefore, it can be laid down that
the tort of negligence is accountable for three essential elements (Tame v State of New South
Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35):
 Duty of care: It means that the person owes a duty of care in action or omission towards
the other person so that the other person does not incur any loss (Caparo Industries Plc v
Dickman [1990]). However the duty of car for the mental harm has been detailed and
codified in the Civil Liability Act 2002 (Wicks v State Rail Authority of New South
Wales; Sheehan v State Rail Authority of New South Wales [2010] HCA 22). According
to Ben-Shahar and Porat 2016, it has been explained that the duty of care should be

CASE STUDY3
assessed in a reasonable manner as any reasonable man would have taken in that
particular situation.
 Breach of duty: It means that the duty of care as imposed upon the defendant, such duty
of care has not been exercised and hence, the plaintiff has incurred losses (Doubleday v
Kelly [2005] NSWCA 151, Court of Appeal (NSW, Australia)). Thus, breach of duty
means the failure to exercise the duty of care (Traffic Authority of NSW v
Dederer [2007] HCA 42, High Court (Australia)).
 Damages: This means that the breach of duty of care has resulted in the losses to the
plaintiff towards whom such duty of care was supposed to be exercisable by the
defendant (Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou
Najem [2009] HCA 48, High Court (Australia); Strong v Woolworths [2012] HCA 5,
(2012) 246 CLR 182, High Court (Australia)). Therefore, damages is the loss or harm
incurred by the plaintiff. The compensation awarded by the court shall be the actual costs
of the loss incurred by the defendant. There are four types of damages: Special Damages,
General Damages, Punitive Damages and Aggravated Damages (State of NSW v
Riley [2003] NSWCA 208, Court of Appeal (NSW, Australia)).
 Causation: This is an important element because the causation refers to the situation
where the court would analyze the cause of harm (Wallace v Kam [2013] HCA 19, High
Court (Australia).). This means that the harm should be the outcome of the breach of duty
of care by the plaintiff (Imbree v McNeilly [2008] HCA 40, High Court (Australia)).
In Donoghue vs. Stevenson, it was further explained by the Court that the parties to the
contract in such cases shall not only be the direct acceptor or purchaser of the product but also
the final consumer of the product including those who are not in direct contact with the seller or