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NEGLIGENCE Page 7 of 11 qwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiop

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NEGLIGENCE Page 7 of 11 qwertyuiopasdfghxcvbnmqwertyuiopasdfghxcdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdfdf

NEGLIGENCE Page 7 of 11 qwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiop

   Added on 2020-03-28

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qwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnTort LawNegligence(Student Details: )
NEGLIGENCE Page 7 of 11 qwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiop_1
NEGLIGENCE Page 2 of 11Issue 1Whether there is a possibility of making a successful claim under tort law of negligence, against Dr. Stark by the Nguyens, particularly on the basis of the Civil Liability Act, 2002, or not?Rule 1There are a number of torts in Australia, which are applied on the daily lives of the people. However, the most prominent one in this regard is the tort of negligence. Where a case of negligence is shown by the aggrieved party, they are able to make a claim of negligence in the court and are awarded damages1. In order to show that a case of negligence was present, the aggrieved party has to show that certain components were present. These are the duty of care being owed towards them, the duty of care being contravened/ violated, the same resulting in injury/ loss/ harm, the loss being reasonably foreseeable, the remoteness of losses, the proximity between parties, and lastly, the direct causation component2. Apart from these requirements, which have been given under the common law, the statutory law also provides the provisions with regards to negligence and this have been stated under the Civil Liability Act, 20023, which is applicable in the jurisdiction of New South Wales. Under section 5B(1) of this act, it has been stated that an individual can be held accountable forthe undertaken negligence in such a case where there has been no failure in undertaking the required precautions against the particular risk of loss or injury, followed by the risk of such loss1 Mark Lunney and Ken Oliphant, Tort Law: Text and Materials (Oxford University Press, 5th ed, 2013)2 Keith Abbott, Norman Pendlebury and Kevin Wardman, Business law (Thompson Learning, 8th ed, 2007)3 Civil Liability Act, 2002 (NSW)
NEGLIGENCE Page 7 of 11 qwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiop_2
NEGLIGENCE Page 3 of 11being foreseeable in a reasonable manner and the same significant in such a way that a reasonable person would have applied certain precautions to safeguard from its occurrence4. Under section 5B(2) of this act, the duty of care is deemed to be contravened when there is a chance of the harm or the loss taking place and the same is not considered properly, and this harm or loss is serious in nature. In addition to this, there has to be a failure in taking into consideration, the burden of applying the needful precautions or safeguards so as to avoid the harm and the social utility of the activity which was undertaken5.For establishing a case of negligence, the very first step is to demonstrate the presence of duty of care by one individual to the other individual. In this regard, the case of Donoghue v Stevenson6 proves to be of assistance. In this case, a dead snail was found to be present inside the ginger beer bottle, which was manufactured by the defendant of this case. The defendant denied that they owed a duty of care towards the consumer as the consumer had bought the bottle in a cafe. The contamination of the bottle made the plaintiff sick and the court agreed with her claim that the defendant had breached their duty of care in this case. The raison d'êtrefor holding that a duty of care was present for the defendant was given to be the relationship between the manufacturer and the consumer, and the foreseeability of such injury in a rational manner7. 4 Civil Liability Act 2002, s5B(1)5 Civil Liability Act 2002, s5B(2)6 [1932] AC 5627 Paul Latimer, Australian Business Law 2012 (CCH Australia Limited, 31st ed, 2012)
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NEGLIGENCE Page 4 of 11Next comes establishing that an obligation of care was contravened which resulted in a significant loss or harm to the plaintiff8. In the case of Paris v Stepney Borough Council9, this wasestablished successfully. In this case, the defendant had employed the plaintiff for a certain work, which required him to be provided with safety equipments. But this was not done and the plaintiff got blinded as a rusty bolt flew into his eye after getting loose. The plaintiff sued the defendant for breaching their duty of care and the court upheld the claim as the shortfall onpart of the defendant in providing the needful equipments was seen as a contravention of the obligation of care. The blindness was a significant injury, which led to the damages being awarded to the plaintiff. In the Wagon Mound case, fully known as Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd10 the damages were not awarded because of the remoteness of damages. So, the damages cannot be remote and have to be substantial in nature for a claim of negligence to succeed11. Another component of making a claim of negligence is the injury to be foreseeable in a manner which can be deemed as foreseeable. For deciding if a particular loss or harm is reasonably foreseeable or not, the view of an unbiased prudent person has to be taken and this requirement was given in the legal matter of Wyong Shire Council v Shirt12. Another requirement is for the parties to have proximity between them in such a manner that the actions undertaken by one party can impact the other party. In the case of Perre v Apand13 due to the proximity, the plaintiff’s farmland was inflected and the court stated that the defendant 8 Andy Gibson and Douglas Fraser, Business Law (Pearson Higher Education AU, 2013)9 [1951] AC 36710[1961] UKPC 211 Pamela Stewart and Anita Stuhmcke, Australian Principles of Tort Law (Federation Press, 2009)12 (1980) 146 CLR 4013 (1999) 198 CLR 180
NEGLIGENCE Page 7 of 11 qwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiopasdfghjklzxcvbnmqwertyuiop_4

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