Commercial Law

Running head: COMMERCIAL LAW
Commercial Law
Name of the Student
Name of the University
Author Note

COMMERCIAL LAW1
Issue 1
The first issue in the present case is whether the gardener can be construed to have
committed an act of negligence causing injury to Marie.
Rule
Negligence is an area of torts law where a failure of a person to exercise a standard of care
that it is required to be maintained under the norms of the situation would be actionable by
any person who has sustained any injury owing to the negligent act (Trone. 2016). Therefore,
it can be stated that to hold a person liable under negligence, it is required to be established
that the person, who has been alleged for the act of negligence has incurred a duty to exercise
normal care, that the situation demands and has subsequently failed in ensuring that duty, as a
result of which, a third party has been injured.
Four elements or essentials are required to be ensured by the act of a person to be brought
under the range of negligence. The first essential that an aggrieved needs to establish to hold
the alleged liable to have committed an act of negligence, is the existence of a duty that the
norms of the situation has imposed upon the alleged person. The same can be illustrated with
the principles established in the case of Donoghue v Stevenson [1932] UKHL 100. This can
further be extended by the threefold test that has been formulated by the courts in the case of
Caparo Industries PLC v Dickman [1990] UKHL 2. This test requires the act of the person
who has been alleged to have committed negligence to be foreseeable to cause injury, the
alleged should have a connection with aggrieved and the imposition of the duty of care is not
unfair. The second essential that an aggrieved needs to establish for the purpose of rendering
the alleged to have committed the tort of negligence is a contravention on the part of the
alleged in carrying out the duty of care. This further be explained with the case of
Drinkwater v Howart [2006] NSWCA 222. The third essential that an aggrieved is required

COMMERCIAL LAW2
to establish is an injury that has been caused to him owing to that breach to hold the alleged
liable under the tort of negligence. The same can be illustrated with established principle of
the case Strong v Woolworths [2012] HCA 5. The fourth essential that the aggrieved is
required to establish is the proximate connection between his injury and the negligent act of
the alleged to hold the alleged liable under the act of negligence. This can be father illustrated
with the case of Overseas Tankship (UK) Ltd v The Miller Steamship Co [1966] UKPC 10.
In case all the four elements or essentials of negligence can be established by an
aggrieved, he has the power to claim damages from the alleged for the injury that has been
caused to him by the negligent act of the alleged. This can be supported with a case of
Todorovic v Waller [1981] HCA 72.
Application
In this present case, the company to authorise the gardener to subcontract and owing to
this, the gardener has engaged in the work of repairing a rooftop garden in residential
building. This work imposes a duty upon the gardener to exercise care with respect to proper
safety measures to be ensured. This can further be supported with the case of Donoghue v
Stevenson [1932] UKHL 100.
In this furtherance, he has notified the residents by way of a notice being served in the
mailbox to refrain from accessing the rooftop during the garden work. But the same cannot be
treated as an adequate measure considering the hazardous nature of the work he has been
involved in. This can be construed to be second essential that an aggrieved needs to establish
for the purpose of rendering the alleged to have committed the tort of negligence is a
contravention on the part of the alleged in carrying out the duty of care. This further be
explained with the case of Drinkwater v Howart [2006] NSWCA 222.