Commercial Law - Case Study

Added on - 28 May 2020

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Running head: COMMERCIAL LAWCommercial LawName of StudentName of UniversityAuthor note
1COMMERCIAL LAWPart BIssueThere are four issue which have been identified in relation to case study which are as follows1.Whether carol and or Ann have the position of bringing a successful proceeding againstBruce in relation to the provisions of common law2.Whether Hank’s Distributor and Mower owe a duty of care towards Carol, Ann or Bruceunder the tort of negligence in common law3.Whether Bruce, Ann or Carol has any right against Hank’s Distributor or Mower underthe provisions of Australian Consumer Law as provided through Schedule 2 of theAustralia Competition and consumer Act 2010.4.Whether Hank’s Distributor and Mower have the right to take any defense under theprovisions of ACLRuleThe concept of negligence had been incorporated into the Australian common lawthrough the case ofGrant v Australian Knitting Mills. PC 21 OCT 1935. The case had usedthe principles provided by the court inDonoghue v Stevenson 1932 AC 562in relation to dutyof care. The case had given the legal world “neighbors’ principle”. According to the principle asa person compared to a good neighbor must be careful towards his actions other persons(neighbor) who can be affected by such actions. This means that they owe other persons adutyof care.
2COMMERCIAL LAWThe existence of a duty of care in common law is done through the application of varioustests. One of the primary test for analyzing whether the duty exists of not is the caparo test asprovided through the landmark case ofCaparo Industries pIc v Dickman [1990] 2 AC 605House of Lords. According to the principles of this test if a person can be harmed foreseeably bythe actions of another the other person owes him a duty of care.However to establish that there was negligence in the situation the duty of care has to becontravened. The objective test is best applied for determining the breach of the duty of careowed by a person. The objective test had been used in the case ofVaughan v Menlove (1837) 3Bing. N.C. 467where a reasonable person would have been placed in the position of thedefendant and then analyzed whether they would have taken the same decision or not which wastaken by the defendant, If the decision would involve additional care than the duty would bedeemed to be violated by the defendant.The existence of a duty of care and a breach of duty of care alone is not capable ofestablishing a tort of negligence. Whether the violation of the duty has caused the injury to theperson is also considered for the purpose of establishing negligence. The most popular test whichis applied for determining the element of causation is known as the “but for” test. The provisionsof the test have been provided in the case ofBarnett v Chelsea & Kensington Hospital [1969]1 QB 428.According to the test the injury should not have been caused of the negligent act wasnot present, that is if the injury would have been caused irrespective of the negligent act there isno claim of negligence.
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