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Contributory Negligence and Implied Terms of Contract

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Added on  2020-02-18

Contributory Negligence and Implied Terms of Contract

   Added on 2020-02-18

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Running head: TORTSNegligenceName of the student:Name of the university:Author note
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1TORTSAnswer to question 1The present case is based on certain chapters of the Tort law such as the law ofnegligence, contributory negligence and implied terms of contract1. Negligence is a part ofthe tort law. The word negligence derived its origin from the Latin word negligentia. Bynegligence, it is meant certain failures to exercise relevant care that is expected in certaincircumstances. In simple words, negligence is a position that arises when a person has failedto take due diligence and care for their action and could not foresee the outcome of the samethat damage other people and their personal property2. The person who developed injury forthe acts of others is able to claim for damage in the form of compensation for the harm.Under the Australian tort law, certain essentials are to be fulfill to cause a valid negligence.According to Professor David W., a person is said to commit negligence when someconceptual essentials are not being fulfilled. Such Essentials are duty of care, breach of Duty,factual causation, legal causation, intention and harm. Therefore, it is observed that the firstessential of the contract is duty to take reasonable care so that the act does not harm theperson or the property of someone else3. In Donoghue v Stevenson (1932), it was observed that if there is any fault observedregarding the duty of care and the outcome of the same injured the private property of theperson then it can be said that there is scope for negligence4. In that case, it has been found1Ferrara, Santo Davide, et al. "International Guidelines on the Methods of Ascertainment of Personal Injury andDamage Under Civil-Tort Law."Personal Injury and Damage Ascertainment under Civil Law. SpringerInternational Publishing, 2016. 583-602.2Hunter, Jill, et al. "The Trial: Principles, Process and Evidence."LAW INSTITUTE JOURNAL(2016).3Martin, Kenneth. "Topical matters pertaining to the tort of negligence-the attribution of blame."Brief43.7(2016): 38.4Cane, Peter, and Patrick Selim Atiyah.Atiyah's accidents, compensation and the law. Cambridge UniversityPress, 2013.
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2TORTSthat the defendant who was a manufacturer of a drink had failed to perform his duty properlyas the plaintiff had found some decomposed body of a snail from the bottle. According to thepresiding officer of such case, the defendant has failed to show his duty of care and thereforeheld liable under the law of negligence5. In Caparo Industries Plc v Dickman (1990), it was held at any act done by a person shouldbe reasonably foreseeable and there must be a relationship of fairness between the plaintiffand the defendant6. In Australia, the law of negligence has been developed by the casejudgement of Grant v Australian Knitting Mills (AKR) (1936). In Bolton v Stone (1951), it was held at if a person failed to perfume his duties ohwell he shall be liable for the breach of duty and will be penalized under the law ofnegligence. It was held in Dorset Yacht v Home Office, it was held that if there is anallegation made it is a government for the negligent act they cannot take the escape in thecase as it is the duty to perform for the interest of the people7. Another essential for a valid negligence is that there will be some evidence that canprove that certain loss has been sustained by the negligent act of the defendant. The damagemeans physical as well as economic laws. in the present case you have seen that GeorginaLloyd had met with an accident in a park due to the in active participation of the hotel ownerand she sustained injury regarding same8. It has been observed that it is the duty of the owner5Goldberg, John CP. "Inexcusable Wrongs." (2014).6Strode, Ann, and Priya Pravesh Singh. "Compensation for research-related harm: The implications of Venter vRoche Products (Pty) Limited and Others for research ethics committees."SAMJ: South African MedicalJournal104.11 (2014): 759-761.7Saini, Saroj. "Damages for breach of contracts Emerging judicial trends." (2015).8Satyan, Kanika. "Case Analysis: Caparo Industries Plc v. Dickman."Browser Download This Paper(2015).
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3TORTSof the real occupiers of a place to take certain duties for the interest of the customer. How is itin this case we have observed that the way to the washroom from the place where Georginaresides was dark and quiet slippery and there is no light that can indicate the way to thewashroom. It was a rainy season and due to the heavy raining Georgina felt on the ground hitby a stone and sustained several knee injury.Answer to question 2Under Australian tort law it has been stated that a person can be so another fornegligence if there was proof regarding the negligent act of the defendant and there should becertain proofs regarding the injury caused by the negligent act of the defendant9. It should beproved that the earth that is negligently done by the defendant is foreseeable in nature and thedefendant has failed to perform his duties prudently.However, in this case, it has been observed that the defendant has failed to take carefor securing the interest of the claimant and therefore Georgina had to face serious kneeinjury10. It can be said that the Essential elements of a valid negligence has been fulfilled inthis case and the acts of the occupier of the park has made all the rules properly11. It is theduty of park occupiers to take certain care to secure the interest of the customer and if there isany breach happened, the park owner will be held liable. It is also under the law that the9Greenfield, Steve. "Legal Cultures and the Regulation of Coaching Practice: Different Jurisdictions, DifferentApproaches?."Staps4 (2016): 87-96.10Foley, Melissa, and Martin Christensen. "Negligence and the Duty of Care: A Case StudyDiscussion."Singapore Nursing Journal43.1 (2016).11Carey, Paul. "Should We Keep Running up the Hill: LM v Commissioner of An Garda Siochana."King'sInns Student L. Rev.6 (2016): 30.
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