Law Assignment | Commercial & Corporation Law

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Commercial and Corporation LawJanuary 17, 2018Commercial andCorporation LawNegligence(Student Details: )Page1
Commercial and Corporation LawJanuary 17, 2018IntroductionUnder the common law, negligence is deemed as a tort, which highlights that it is relatedto a civil wrong undertaken. Negligence in itself shows the failure in undertaking the requiredamount of care, as had to be done by the individual undertaking specific actions, which had thepossibility of injuring or hurting the other party. By showing that a case of negligence waspresent, the injured party can attain damages from the tortious party (Gibson & Fraser, 2014).This discussion is focused on establishing the same for Tamara.IssueCan a case of negligence be made against Aldi Supermarkets (AD) based on the givenfacts?RuleThe failure of upholding the duty of care, which causes an injury, or harm to anotherperson, results in a case of negligence being made. However, this is not as easy to establish in acourt and requires certain elements to be shown to be present. The very first one in this context isshowing that a duty of care was owed to the injured party (Greene, 2013).Donoghue v Stevenson[1932] UKHL 100 is the most common case which is opted for showing the duty of care beingpresent. This case had the plaintiff drinking from the bottle manufactured by the defendant. Dueto the presence of dead snail in the bottle, the plaintiff got sick, and sued for negligence. Thiswas due to presence of proximity and foreseeability (Latimer, 2012).Page2
Commercial and Corporation LawJanuary 17, 2018The next element is showing the breach of duty of care (Kelly, Hammer & Hendy, 2014).InVaughan v Menlove(1837) 3 Bing NC 467, the defendant was required to undertake suchactions which a reasonable individual would have taken. The failure in paying heed to thewarnings was deemed as a breach of duty of care by the court (E-Law Resources, 2017a). Thenext requirement is to show that the loss was not too remote and was substantial. InOverseasTankship (UK) Ltd v Morts Dock and Engineering Co Ltd[1961] UKPC 2, it was seen that theabsence of loss being foreseeable resulted in the damages not being recoverable (Latimer, 2012).Once it can be shown before the court that a duty of care was owed and the same wasbreached, which resulted in injuries, damages can be claimed. However, there are certaininstances where the awarded damages can be reduced or eliminated completely. One of suchinstances is contributory negligence (Harvey & Marston, 2009). Where such situation is bornthat the plaintiff themselves contribute to the harm caused to them, they are proportionally heldliable for the contributory negligence undertaken by them (Dongen, 2014). An example of thiswas found in the matter ofDavies v Swan Motor Co[1949] 2 KB 291. In this case, Davies hadbeen injured whilst he was standing on the side of the lorry. And this was deemed as hiscontributory negligence(E-Law Resources, 2017b).Particularly based on the given case study, the case ofRaad v KTP Holdings Pty Ltd asTrustee for VM & KTP Nguyen Family Trust[2016] NSW 2016 888 is of help. In this matter, theplaintiff had slipped on the wet tiles of the supermarket and sued them for negligence. Thedefendant failed in showing that they had undertaken the steps to keep the floor anti-slippage andthis made them liable for negligence. Though, the fast movement of the plaintiff on wet floor ledPage3
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