LAW101 Commercial Law Semester 2 2021 Assessment 2 Research Essay

This essay covers the hierarchy of courts in Australia, the doctrine of precedent, the concept of reasonable person in tort of negligence, and the elements of negligence with case laws. It explains the duty of care, breach of duty to take care, and consequential harm to the plaintiff. The subject is LAW101 Commercial Law Semester 2 2021 and the course code is not mentioned. The college/university is not mentioned either.

Commercial laws

Table of Contents
MAIN BODY...................................................................................................................................3
1 Explain about courts existing within Commonwealth and New South Wales court with
their hierarchies. Also provide information about relationship with the doctrine of
precedent...............................................................................................................................3
2 As per tort of negligence the ‘reasonable person’ plays has an important role in
determining about forseeability which makes breach of standards. Explain what is
reasonable person.................................................................................................................4
3 For success within the action of negligence various elements have been established
through plaintiff. Explain these elements with three case laws........................................5
REFERENCES................................................................................................................................8

MAIN BODY
1 Explain about courts existing within Commonwealth and New South Wales court with
their hierarchies. Also provide information about relationship with the doctrine of
precedent.
Judiciary is one of the most effective system that is based over exercising various kinds
of legal rights and duties possessed within the legal system. In order to do so Australian legal
system follows hierarchy of courts that contains high court , magistrate court family court of
western Australia , state administrative tribunal , juvenile court , corner court and warden's court.
The High Court of Australia is known as the highest court of appeal which as per the judicial
system of Australia. The court functions over interpretation of laws and legislations present
within Australia in order to secure justice in its real sense. Further appeals passed from lower
court are herd within these courts. Then, there is court of family that helps in providing assists in
order to resolve complex family disputes that is related over making economical as well as
parenting case. In this, registries are associated with courts in Australian states and territorial
areas excluding Western region of Australia. An intermediate trial was developed by The District
Assembly of Australia of Western region over placing of court between Magistrate assembly and
Supreme court in hierarchy of courts of Western Australia. Further these courts do agreements
with major criminal cases like conflicts, sexual conflicts, commercial theft and serious crime
burglary and drug offences(Neuberger, 2020).
It handles assertion up to $750,000 having ultimate judicial decision upon assertion for damages
and personnel offence. It also hears cases from magistrate in political activities. Further
Magistrate Courts are there which hears cases from not only political matters but also from
criminal cases. In criminal cases magistrate court handles with minor offences without jury. Also
the courts handles cases which are having up to $75,000 in the form of claim. In slight cases,
limit of jurisdictional is $10,000. Family Court of Western regions in Australia has power of
only National and State Assembly over the cases related to family law like divorcement, property
of a marriage or de facto relationship and cases related to management. State Administrative

Tribunal which has been established as per State Administrative Act 2004. It only contains
judicial members, legal members and ordinary members that makes and reviews a wide range of
administrative decisions. The Children's Court of Western Australia has jurisdiction in respect of
offences allegedly committed by children (aged 10 to 17 years) and care & protection matters.
Then comes coroner's court and warden's court handling other matters like non – natural cause of
death. All the courts hold jurisdiction upon both Commonwealth and New South Wales court.
The Doctrine of Precedent is the doctrine based over common law principles that gives powers to
judges for passing judgement within landmark cases which can be used in near future for similar
case. It is related to functioning of various courts in Australia as it provides power to judges for
forming law when statutory law is not able to procure justice. Also it has been used by courts in
order to make transparency developed within judicial system that leads over providing justice in
its purest form. Doctrine of Precedent is used in relation to commonwealth courts and New
South Wales court for securing justice within Australia and maintaining quality of justice.
2 As per tort of negligence the ‘reasonable person’ plays has an important role in
determining about forseeability which makes breach of standards. Explain what is
reasonable person
Law of tort means the laws that is used upon making cases solved in more impactful
manner which helps in making day to day activities performed in more effective
manner(Mazzoni, A. 2018). Also law of torts is applied within less serious civil cases and claim
is given in the form of money. Further law of torts covers various topics like tress pass,
negligence with assault and battery. Negligence means an act of omission which is committed by
an individual while performing particular activity. Also negligence means acting carelessly while
committing an act. As per this significance is paid over reasonable care that has to be taken by
reasonable person in relation to particular situation. Reasonable person means hypothetical
person that is used in legal standard for determining whether the conduct of parties is proper or
not. Further reasonable person helps in maintaining standards over means that an person should
act with care, prudence and good judgement over reasonable person causing injury to others.
These are those standards that have been created in order to make courts and juries full fill their
objective by using two test which are neighbour and Capario test which lead upon negligence. It
is helpful in providing justification over negligence performed by a person is liable or not. As per
these unavoidable accidents makes injuries and damages in relation to them provided in more

effective manner. This is based upon the omission done by an reasonable person within the
standards that makes negligence marked out in a case.. Case law in relation to reasonable person
is Vaughan v Menlove in this case defendant's haystack caught fires because of poor
ventilation . Further defendant has been warned over numerous occasions that would happen if
he left the haystack. Defendant made argument that he did not foresee risk of fire . The court
held that its is not enough to justify about the fire. Thus he was to be judge on the basis of
reasonable person. As per negligence as tort law makes it clear that an reasonable person makes
breach of duty of care only when the risk is not foreseen. This makes that reasonable person
concept justified in more effective manner through the case it can be marked out that duty of care
is included within the concept of reasonable person.
3 For success within the action of negligence various elements have been established
through plaintiff. Explain these elements with three case laws
In relation to negligence there are certain elements which are used and have been
explained as follows:
Duty of Care
This is one of the most essential conditions which is used within negligence over making
a person liable. As per such condition all responsibility is hold by a person owning duty of care
towards another person in the due course of performing an act(Mazzoni, A. 2016). This is an
important part of negligence which makes negligence become part of legal duty in relation to
illegal, unethical and unlawful conducts done by an person. Further a case law in relation to this
is Stansbele vs Troman in this case a decorator has been engaged over carrying out decorations
within the house. Further decorator left the house without locking the door or informing anyone
which made thief entered the house and stole some property value of which the owner of house
claimed from the decorator. According to the facts it can be marked out that decorator is liable
over negligence leaving house open which bounds upon failure to perform duty of care.
The Duty must be towards the plaintiff
The duty arises when law recognizes a relationship between the defendant and the
plaintiff and requires the defendant to act in a certain manner toward the plaintiff. This duty
helps in maintaining professionalism within the court which makes judgement provided in
specified manner. Also in this plaintiff is required to make establishment with determination in
relation to duty that has been determined by judge.

Breach of Duty to take care
As per this plantiff is not required to prove about the action related to duty care but
should make establishment of valid evidence in relation to duty of care. These evidences helps in
finding about breach which has been done with the help of two main elements that is “reasonable
person” and “act of omission”.. In other words it can be observed that breach regarding duty of
care makes an person liable over act committed that is explained through judgement of
case(Mäntysaari 2019). Relevant case law is Donoghue V Stevenson in this case Mrs Donghue
went to cafe with her friend and ordered bottle of ginger beer with ice cream. Since ginger beer
comes in opaque bottle which makes it contents not visible. Mrs Donghue poured half content
form the bottle over her ice cream and drank some from the bottle. As she was eating part of ice
cream and the poured remaining content upon it ice cream she noticed that a decomposed snail
emerged from the bottle. This made Mrs Donoghue suffered personal injury as a result of which
she launched claim against the manufacturer of the ginger beer. In this court held that claim is
successful which lead towards modern law of negligence formed through neighbour test. The
case has been proven to be landmark in providing more relevancies over negligence as duty of
care. Through the case neighbour test has been created leading towards negligence become
illegal in the eyes of law.
Consequential harm to the plaintiff
This provides that defendant has failed over exercising about reasonable care that is not
enough. It means failure of defendant to exercise reasonable care has led upon causing damages
to the plaintiff over defendant owning duty of care. Barnett v Chelsea & Kensington Hospital
hospital is not liable as the failure which does not cause death of patient.

REFERENCES
Books and Journals
Mäntysaari, P. (2019). Commercial Law and the Theory of Management-Based Commercial
Law. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.1473006
Mazzoni, A. (2016). International Commercial Law Today: Old Habits and New Challenges.
Transnational Commercial Law Review, 1(1), 4-21. https://doi.org/10.26494/tclr120204-21
Mazzoni, A. (2018). International Commercial Law Today: Old Habits and New Challenges.
Transnational Commercial Law Review, 1(1), 4-21. https://doi.org/10.26494/tclr120204-21
Neuberger, L. (2020). The Supreme Court and Commercial Law. Transnational Commercial
Law Review, 1(1). https://doi.org/10.26494/tclr1202022-48
Rawlings, P. (2020). Review: Fundamental Concepts of Commercial Law: Fifty Years of
Reflection & The Development of Transnational Commercial Law. Transnational Commercial
Law Review, 1(1), 136-141. https://doi.org/10.26494/tclr120202136-141