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Commercial Law - Questions Based On Case Study

   

Added on  2020-03-04

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Commercial Law - Questions Based On Case Study_1
COMMERCIAL LAW2Question 1IssueWhether Benji can bring legal action for negligence against Jack, Bronco, and Parramatta StormsRugby League Club, or not?LawNegligence, as defined under the common law, highlights such a breach of duty of care, due to which the party which owed the duty of care is injured, harmed or bears a loss, which is substantial in nature and which was foreseeable in the given circumstances1. The Civil Liability Act, 20022, under section 5 defines negligence as a failure of exercising the required skill and care. Harm is something which includes an economic loss, damage to property, and a death or personal injury3. There are certain key elements which have to be shown to establish a case of negligence. The first one in this regard is the duty of care. The duty of care is raised in such cases where, owing to the activities under by one person, the other person is harmed, and this harm is reasonably foreseeable4. Section 5B of the Civil Liability Act, 2002 contains provisions regarding duty of care, where the person cannot be held negligence till it is shown that the risk was not insignificant, was foreseeable and a reasonable person would have undertaken the precautions to evade it5. 1 Andy Gibson and Douglas Fraser, Business Law (Pearson Higher Education AU, 2013)2 Civil Liability Act, 2002 (NSW)3 Civil Liability Act 2002, s54 Mark Lunney and Ken Oliphant, Tort Law: Text and Materials (Oxford University Press, 5th ed, 2013)5 Civil Liability Act 2002, s5B
Commercial Law - Questions Based On Case Study_2
COMMERCIAL LAW3This duty of care is established due to the relationship between two parties and the proximity between them6. For instance, in sports, the duty of care arises between the competitors to competitors; the competitors to spectators; coach to competitors; and the like7. The case of Ollierv Magnetic Island Country Club8 saw the golfer being held for a breach of duty of care for hitting the other golfer with tee shot. The next step is the establishment of the contravention of the owed duty of care. The contravention can be established only when the risk is deemed as foreseeable. So, the person has to know that there are chances, where if the work is not undertaken properly, the other person may get injured9. Further, that a prudent individual would have undertaken such precautions. In the matter of Vaughan v Menlove10, the chances of fire were present, as there was poor ventilation, so a case of negligence was present. Wyong Shire Council v Shirt11 saw the requirement of the view of a prudent person being taken into account for judging the foreseeability of harm. The last step relates to showing the loss being suffered by the plaintiff. This loss has to be a direct result of the undertaken negligence by the defendant and the harm has to foreseeable and cannot be too remote. In case a claim of negligence is found to be true, the plaintiff can apply forrelief12. A “but-for” test was given in Barnett v Chelsea & Kensington Hospital13, where it was held that the damages are to be awarded only in such cases where the injury or harm would not have taken place, if the negligent act had not been undertaken. 6 Keith Abbott, Norman Pendlebury and Kevin Wardman, Business law (Thompson Learning, 8th ed, 2007)7 Chris Davies, Negligence And Risk Management And Sport (2012) <https://researchonline.jcu.edu.au/25604/1/25604_Davies_2012.pdf>8 [2004] Aust Tort Reports 81,7439 Pamela Stewart and Anita Stuhmcke, Australian Principles of Tort Law (Federation Press, 2009)10 (1837) 132 ER 49011 (1980) 146 CLR 4012 Chris Turner, Unlocking Torts (Routledge, 3rd ed, 2013)13 [1969] 1 QB 428
Commercial Law - Questions Based On Case Study_3

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