Negligence and Vicarious Liability in Commercial Law

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

COMMERCIAL LAW1
Issue 1
Whether Ms. Vincent can sue Tom for her injuries and be successful in her claims.
Whether any defences are available to the parties.
Rule
Negligence implies an area of tort law, which holds a person liable on the event of any
breach of duty that has been committed by him and that breach has caused an injury to
another person. To bring an action under the purview of negligence, four elements needs to
be established. Firstly, the person alleged to have committed negligence, needs to owe a duty
of care. This duty of care that the person owes is required to be a duty that he owes owing to
the legal ground. This can be supported by the case of Donoghue v Stevenson1. In the case of
Caparo Industries PLC v Dickman2, a threefold test has been formulated by the court to
assess the duty of care. A duty of care can be said to be present, if it can be reasonably
foreseeable, if there is a proximate connection between wrongdoer and the aggrieved and if
there is a fair, reasonable and just ground for imposing such a duty. Secondly, the duty that
has been imposed upon the person is required to be breached. This breach of duty can be
assessed by applying a test, which is both objective and subjective. The person committing
the negligent act may or may not have the awareness of the loss or risk that he might cause to
another person with that act. In both of the situation the person will be liable for the negligent
act that has been committed by him. This can be supported by the case of Doubleday v
Kelly3. Thirdly, the breach of the duty is required to result in an injury to the aggrieved. The
injury can be either pecuniary or purely non-economical. Irrespective of the nature of the
injury, the person acting negligently will be held liable. This can be illustrated with the case
1 [1932] AC 532
2 [1990] UKHL 2
3 [2005] NSWCA 151

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of Blyth v Birmingham Waterworks Co4. No claim can be made on the basis of the law of
negligence, if the negligent act has not caused any damage to the aggrieved. The same can be
supported with the case of Constantine v Imperial Hotels Ltd5. Fourthly, there should be
proximate relation between the injury and the negligent act. The same can be illustrated with
the case of Barnett v Chelsea & Kensington Hospital Management Committee6.
However, when a contribution of the aggrieved person can be traced to the injury that has
been caused by the negligent act another person, it can be said to be a contributory
negligence. In such a case, the amount of damages can be reduced to the proportion to which
the aggrieved can be held liable for contribution. The same can be illustrated with the case of
Butterfield v. Forrester7.
Application
In the present situation, Ms. Vincent has been attending a Woolsworths supermarket in
Narooma to for implementing a marketing strategy and product placement. There she has
signed in the visitor’s book and then collected a 50cm high safety step and a mat. She used
them to go up in the shampoo isle and started working. She stepped up on to the safety step to
remove some product from a higher shelf. While she was stepping down from the safety step,
she collided with a shopping trolley, which was being pushed by the customer. This makes
the customer to have breached the duty of care that he owed for the reason of handling the
trolley negligently and the pushing of the trolley to affect the balance of the safety step. This
satisfies the first ground for negligence that requires an existence of the duty of care. The
pushing of the trolley in a negligent manner is a breach of that duty and this satisfies the
second element of negligence. Moreover, this caused Ms. Vincent to fall down and twist her
4 [1856] Ex Ch 781
5 [1944] KB
6 [1968] 2 WLR 422
7 11 East. 60, 103 Eng. Rep. 926 [K.B. 1809]

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left for the reason of landing heavily on the floor. She further tangled her hair in the wheel of
the trolley and sustained an injury to her back and knee, which caused her to be taken to the
hospital. This satisfies the third element of negligence. As the injury of Ms. Vincent has been
caused by the pushing of the trolley by the customer, it can be said to have satisfied the fourth
element of negligence. Hence, the customer can be held liable for the negligent act he has
caused.
However, the CCTV footage showed that Ms. Vincent failed to turn her head fully to
either of the sides to check for passing customers pushing trolleys, and just looked to the
either side without turning the head. This can be construed to be contributory negligence and
will make the liability of the customer to be reduced to the proportion to which such
contribution of Ms. Vincent exists.
Conclusion
Ms. Vincent can sue Tom for her injuries and be successful in her claims. However, the
liability of the customer will be reduced to the contribution of Ms. Vincent to the accident.
Issue 2
To decide who can sue whom successfully in the give case along with the appropriate
defences available to the defendant.
Rule
Negligence refers to a tortious act in which an individual is suffers in the hand of another,
who was liable to exhibit a duty of care towards the sufferer, however failed to do so and
hence the person suffered a physical hurt or an economic loss. In some cases there are
contractual relationship between the parties where the claimant and the tortfeasor shares an
express relationship, like master-servant, partners, doctor-patient or banker-customer; while