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Law Assignment | Commercial & Corporation Law

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Added on  2020-05-28

Law Assignment | Commercial & Corporation Law

   Added on 2020-05-28

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Commercial and Corporation LawJanuary 17, 2018Commercial andCorporation LawNegligence(Student Details: )Page 1
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Commercial and Corporation LawJanuary 17, 2018IntroductionUnder the common law, negligence is deemed as a tort, which highlights that it is related to a civil wrong undertaken. Negligence in itself shows the failure in undertaking the required amount of care, as had to be done by the individual undertaking specific actions, which had the possibility of injuring or hurting the other party. By showing that a case of negligence was present, 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 given facts? RuleThe failure of upholding the duty of care, which causes an injury, or harm to another person, results in a case of negligence being made. However, this is not as easy to establish in a court 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 being present. This case had the plaintiff drinking from the bottle manufactured by the defendant. Due to the presence of dead snail in the bottle, the plaintiff got sick, and sued for negligence. This was due to presence of proximity and foreseeability (Latimer, 2012). Page 2
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Commercial and Corporation LawJanuary 17, 2018The next element is showing the breach of duty of care (Kelly, Hammer & Hendy, 2014).In Vaughan v Menlove (1837) 3 Bing NC 467, the defendant was required to undertake such actions which a reasonable individual would have taken. The failure in paying heed to the warnings was deemed as a breach of duty of care by the court (E-Law Resources, 2017a). The next requirement is to show that the loss was not too remote and was substantial. In Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2, it was seen that the absence 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 of Davies 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 of Raad v KTP Holdings Pty Ltd as Trustee 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. The defendant 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 led Page 3
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