Commercial Law BULAW5914 | Assignment

Added on -2020-02-18

| BULAW5914| 14 pages| 3553 words| 99 views

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COMMERCIAL LAW2Part AIssueThe key issue in this case revolves around the possibility of P making a case of negligence against the player, coach, local council owning the football ground, or the football club.RuleNegligence can be defined as a breach of duty of care in which one being owes another, aresponsibility of care, while doing the task, due to the possibility of such task resulting in an injury or harm to the other party (Bailey, 2016). When a person is declared negligent, the injured party gets the option of claiming damages. In order to show that a case of negligence is there, it needs to be proved that there were elements of duty of care, its contravention, resulting damages,proximity, foreseeability, direct causation and remoteness of damages (Gibson & Fraser, 2014). For proving that an obligation of care was present and was ultimately breached, the issue of Donoghue v Stevenson [1932] UKHL 100 is of utmost importance (Abbott, Pendlebury & Wardman, 2007). In this particular case, the plaintiff drank the concoction in the bottle made by the defendant while she was sitting in a cafe. As a dead snail was found inside the bottle, the beerwas contaminated, which led to the plaintiff falling sick. Upon a case of negligence being made against the defendant, he claimed that an obligation of care was not owed. However, the relationship of manufacturer and consumer was such where the parties were in proximity and theact of one impacted another. Due to these reasons, the plaintiff was successful in making a case
COMMERCIAL LAW3of negligence against the defendant, as the contaminated drink was a breach of duty, which was deemed as reasonably foreseeable by the court (Latimer, 2012). The duty of care is based on the proximity of parties. In sports tournaments, the duty of care is raised between the competitors to spectators, competitors to competitors, and even coach to competitors. The damage cannot be too remote and has to be substantial for a claim of negligence to be upheld (Martin & Lancer, 2013). For awarding the damages, the test presented through Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 has to be applied, where it has to be proved that the injury would not have taken place, save for the breach of duty of care by the defendant (Strong & Williams, 2011). The foreseeability of damages plays a key role to prove the negligence. In this regard, thecase of Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078, proves to be of help. Stone was stuck by a cricket ball while she was outside her home, and sued the cricked club for negligence. The court held that the risk of harm to Stone was not reasonably foreseeable and so a breach of duty did not take place (E-Law Resources, 2017). The competitors in sports owe a duty of care towards the spectators. In Cleghorn v Oldham (1927) 43 TLR 465, the court held that the plaintiff had not assumed the risk of accident as she as just a spectator. The occupiers and organizers of the sport events also owe an obligation of care to the spectators. This was established in Langham v Connell Point Rovers Soccer Club [2005] NSWCA 461, where the damages of $233,758 were awarded to the spectator for tripping over the rope in car parking (Davies, 2012). Vicarious liability is a crucial theory due to which the employer is made accountable for the work of the employee (Giliker, 2010). In the case of McCracken v Melbourne Storm [2005]
COMMERCIAL LAW4NSWCA 107, the club was made accountable for the injuries sustained by the player due to the other player being indulged in illegal tackle (Davies, 2012).ApplicationIn the given case study, in order to make the player, coach, local council owning the football ground, or the football club liable, the first step is to show that a case of negligence was present. The obligation of care was owed in this case, on the basis of Donoghue v Stevenson due to the relationship and the proximity of the parties. P was in proximity to the four defendants dueto which, the actions of these four could easily impact P. The glasses of P broke, which can be claimed as an economic loss. So, he can claim damages for the injury he sustained due to the impact of the ball on his face ad due to his glasses being broken. Applying Barnett v Chelsea & Kensington Hospital, P’s glasses would not have been broken if the proper care had been taken by the defendants. The player can raise the issue that he could not have reasonably foreseen that P would be hit, thus resulting in an obligation of care not being owed on the basis of Bolton v. Stone. It was not his duty to install the barricades which would have protected P and he could never foresee P being harmed in this way. Hence, the player cannot be made liable. The same would be the case for the coach and the club. Had the player been held liable, the club could have been held guilty owing to the principle of vicarious liability. Though, as this is not the case, the club cannot be made liable. And the coach never owed an obligation of care to spectator due to the lack of foreseeability. In this case, the local council who owed the football club can be made liable for the negligence on their part in installing necessary safeguards to protect the consumers from being

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