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COMMERCIAL LAW 1 Running Head: Common Law

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Added on  2020-05-16

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Did Hank’s distributor and Mower owed a duty of care to An, Bruce or Carol under negligence in common law Does Bruce, Ann or Carol have any right against Mowers Ltd or Hank’s Distributor Ltd? The aforementioned case used the principles of the former Donoghue v Stevenson 1932 AC 562 which is a remarkable case dealing with the provisions of the Duty of Care and the Neighbor principle. It is to be stated that the primary test used by the courts to analyze Duty of care is

COMMERCIAL LAW 1 Running Head: Common Law

   Added on 2020-05-16

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Running Head: COMMERCIAL LAWCommercial lawName of the student:Name of the University:Author Note
COMMERCIAL LAW 1 Running Head: Common Law_1
1COMMERCIAL LAWPart BIssue:Four issues have been identified in this chosen case study. They are:Does Ann or Carol have the right to bring proceedings against Bruce according to theprovisions stated in the common law?Did Hank’s distributor and Mower owed a duty of care to An, Bruce or Carol undernegligence in common lawDoes Bruce, Ann or Carol have any right against Mowers Ltd or Hank’s Distributor Ltd?Do Hank’s Distributors Ltd. and Mower Ltd. have the right to take defense against thecharges brought against them?RuleIt is to be mentioned that the provisions of negligence has been incorporated in to theAustralian Common Law in the remarkable case Grant v Australian Knitting Mills. PC 21OCT 1935. The aforementioned case used the principles of the former Donoghue v Stevenson1932 AC 562 which is a remarkable case dealing with the provisions of the Duty of Care and theNeighbor principle. The Neighbor Principle as illustrated in this case states that a person iscompared to a good neighbor and such person has to be careful in conducting his actions towardsother people which can have adverse effects on people. According to this principle every personhas the duty of care to their neighbors.To identify and establish duty of care in Common law, the actions of individuals are putthrough several tests. It is to be stated that the primary test used by the courts to analyze Duty of
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2COMMERCIAL LAWcare is the Caparo test as provided in the Caparo Industries pIc v Dickman [1990] 2 AC 605landmark case. This test tries to identify if the actions of one person could forseeably harmothers. If so, then the former person owes a duty of care to the latter. To establish negligence in a case it has to be proved that one of the parties failed to takeduty of care. To determine breach of duty of care, the objectives test is applied. The objectivetest was first used in the remarkable case Vaughan v Menlove (1837) 3 Bing. N.C. 467. In thiscase it was held that a reasonable person would be placed in the same situation as the defendantto analyze whether he would have acted in the same way as the defendant and would have takenthe same decision. If it can be established that reasonable person would have taken additionalcare in fulfilling the duty as imposed upon the defendant, it would be considered that thedefendant’s action constituted breach of duty of care. It is also to be established that the breach of duty of care by the defendant was theprimary reason for the injury sustained by the victim. The important test to identify causation ofdamage is the ‘but for’ test. The test was first applied in the case Barnett v Chelsea &Kensington Hospital [1969] 1 QB 428. The ‘but for’ test is applied to assess whether the injuryor damage sustained by the claimant would have been caused irrespective of the action of thedefendant and whether negligence on the part of the defendant was primarily responsible forsuch injury sustained. In the case Murphy v Brentwood DC [1991] AC 398, it was held that damages can beclaimed for negligence if such damage is reasonably foreseeable.However the defendant facing charges of negligence can claim contributory negligenceas a ground of partial defense. Contributory negligence states that the injury sustained by the
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