Commercial Law: Negligence and Misrepresentation

Running Head: COMMERCIAL LAW
COMMERCIAL LAW
Name of the Student:
Name of the University:
Author Note

1COMMERCIAL LAW
Answer 1:
Case Facts
In this case it can be noted that Katie was driving a vehicle along the busy George Street
located in Parramatta when she knocked a pedestrian, Max down. Max was walking down the
street, he had seen the car coming at high speed but he did not stop and went to cross the street. It
can further be said that he did not wait for the traffic light to change. Katie had been engaged in
her phone while driving and therefore could not apply the brakes in time which could have saved
Max. Max sustained severe injuries due to the accident. Rita was another pedestrian who
witnessed the accident and she had a nervous breakdown. It to be analyzed in this case study
considering the provisions of Negligence whether Max and Rita can sue Katie for the accident
caused.
Factors that constitute negligence
It is to be mentioned that the tort of negligence can be considered to be the legal action that
can be taken against the defendant who owed a duty of care to the plaintiff but failed to perform
such duty. Thus it can be stated that for proving negligence to be existing on the part of the
defendant, the plain tiff must first establish that:
 The defendant owed a duty of care to him
 There was a breach of duty of care on the part of the defendant
 The damage caused to the plaintiff for the breach of duty which was too remote.

2COMMERCIAL LAW
Duty of Care:
It is the primary element in proving negligence on the part f the defendant. The case of
Donoghue v Stevenson 1932 AC 562 was the first in which the provisions of negligence were
discussed. It was held by Lord Atkin in this case that the use of a proximity test and a
foreseeability test would be necessary to assess whether the defendant had a duty of care to the
plaintiff. The foreseeability test can be defined as the acts or the omissions of the acts which
were reasonably foreseeable to the defendant. The proximity test can be defined as the acts or
omissions of acts of the defendant which are directly related to the plaintiff. The principles of the
Donoghue vs Stevenson case was applied in the remarkable Australian Negligence case Grant v
Australian Knitting Mills [1935] UKPC 62. Further it can be stated that section 5B of the Civil
Liability Act 2002(NSW) deals with the provisions of duty of care
Breach of Duty of care
It is the second important essential element in proving negligence. In order to assess
whether there was breach of duty on the part of the defendant the courts are required to take
consideration of the foreseeability of the risk and reasonableness of the actions of the defendant.
In the notable case Chapman v Hearse (1961) 106 CLR 112 it was held that the courts would
regard small risks of harm to be reasonably foreseeable. In Paris v Stepney Borough Council
[1951] AC 367 it was held that the extent of arm likely to be caused to the plaintiff would be
determining factor in assessing the duty of care. Further section 5B(2) of the Civil Liability act
governs the standard of care required to be taken in case of sustaining personal injuries.