Commercial Law Issues (Doc)
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Added on 2020-05-16
Commercial Law Issues (Doc)
Added on 2020-05-16
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Running Head: COMMERCIAL LAWCommercial lawName of the Student:Name of the University:Author Note
1COMMERCIAL LAWAnswer 1 IssueThe issue which needs to be determined relation to the situation is that whether there wasnegligence on the part of Alice and the claim which Marcos may have against her. Relevant law In landmark case of Grant v Australian Knitting Mills. PC 21 OCT 1935 the liabilityof negligence had been discussed by the court. In this case the principles in relation negligenceas provided by the case of Donoghue vs Stevenson [1932] AC 562 had been applied todetermine the liability of parties in relation t negligence. In both the cases the plaintiff hadsuffered damages because of carelessness on the part of the defendant. Both the cases ruled thatthe defendant has the liability of compensating the plaintiff for the loss caused to them due totheir actions.The donoghue case had provided “three basic elements the presence of which is neededto determine negligence on the part of the defendant”. As per the case the “defendant must owe aduty of care to the plaintiff”. The defendant’s actions must be such that the duty of care has notbeen complied with. There must be some form of injury which has been caused to the plaintiff. When the question in relation to ascertaining damages arise the remoteness of damageswhich have been incurred by the plaintiff is taken into consideration. “The damages must not betoo remote for the defendant to foreseen or else they would not be liable to be compensated”.This modern approach in relation to damages in negligence had been discussed by the court inthe case of D'Arcy v Corporation of the Synod of the Diocese of Brisbane [2017] QSC 103.
2COMMERCIAL LAWThere are various test which needs to be applied in order to determine whether theparticular element of negligence can be established or not. These tests have been providedthrough various landmark cases which acts as precedents for determining negligence.One of the primary test for the purpose of determining whether the defendant owes a dutyof care to the plaintiff is the known as the “caparo test”. This test is used to analyze whether aduty of care was owed in relation to a physical injury. This test had been provided through thelandmark case of Caparo Industries pIc v Dickman [1990] 2 AC 605. In thiscase it had beenprovided that the concepts of “ proximity, reasonability, foreseeability of the defendant inrelation to the duty of care being present has to be established”. This means that if the defendantis able to foresee damages which may arise out of his actions to the plaintiff and the defendant isin close proximity with the plaintiff than it is deemed that the defendant owes a duty of care tothe plaintiff. These principles had been discussed in the case of Corporation of the Synod of theDiocese of Brisbane v Greenway [2017] QCA 103.When the initial element of negligence, which is the presence of a duty of care has beenestablished then the court has to identify the presence of the next element which is the “breachof duty of care” in relation to negligence.The test which is commonly deployed to analyze thepresence breach of the duty is known as the “objective test”. The test had been provided throughthe landmark case of Vaughan v Menlove (1837) 3 Bing. N.C. 467. The rules of the test takesinto consideration of the actions of reasonable person to determine the compliance with the duty.As per this case the defendant was held liable for the breach of duty because when a reasonableperson was placed in the same situation as him and would have taken additional care of thesituation. Thus when the defendant fails to take action which would have been taken by areasonable person in same circumstances, the defendant is liable for the breach of duty. The test
3COMMERCIAL LAWhas been applied in various cases in Australia to determine negligence such as the case of Stokesv House With No Steps [2016] QSC 79.The third and final element of negligence is “causation” and the court determines itgenerally through putting into the situation the “but for” test when the issue is related to physicalinjury. The test has been established through the landmark case of Barnett v Chelsea &Kensington Hospital[1969]. The concept of the test is simple, negligence of the injury wouldnot have been caused “but for” the breach of directors duties. As per the facts of the case theplaintiff was a relative of a person who is dies due to the alleged negligence by a hospital who isthe defendant. In this case the plaintiff was suffering from a terminal disease and would havedied even if the doctor had not violated the duty of care. Therefore in the given situation therewas no negligence. Thus as per the test it can be derived that only where the injury is the resultof the carelessness of the defendant towards a owed duty of care can the concept of negligencemay arise. When it comes to the remoteness of damages the court apply the forseeability test whichhad originated from the case of The Wagon Mound no 1[1961] AC 388. In this situation onlythose damages can be recovered by the plaintiff in case negligence is determined, which can bereasonable foreseeable by a reasonable person in the same situation. The provisions of this casealso have been applied in various cases across Australia such as the case of Murphy vBrentwood DC [1991] AC 398When the presence of negligence has been determined the defendant has the right to availcertain defenses under the provisions of common law which may reduce or abolish the liabilityowed by the defendant to the plaintiff. This defense of commonly called “contributory
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