Understanding Negligence and Statutory Guarantees under Australian Consumer Law

Law
1
Law

Law 2
Answer 1
Part A
In situations when one individual owns the duty of care towards another individual, then only
negligence can be occurred. In other words, negligence occurred when one individual fails to do
something that any reasonable person would do or would not do, and failure cause damage, loss
or personal injury to another person. It is possible for the Anna to sue the Michael in context of
the negligence because there is close relation between the Michael and Anna, as Anna takes the
lift from the Michael and because of this Michael owns duty of care towards the Anna. In this
case, Michael fails to take reasonable action even there is foreseeable risk which can be taken by
any reasonable person.
This can be understood through case law Donoghue v Stevenson 1932 AC 562, in which House
of Lords stated that those individuals who are closely and directly affected by the action taken by
the another individual then such individual own duty of care towards that person. In this case,
Anna directly affected by the actions of the Michael and because of this Michael owns duty of
care towards the Anna. Therefore, Anna an take the action of negligence against the Michael.
Part B
Negligence can be determined with the following elements that are-
 Whether defendant own duty of care towards another individual or not.
 Whether such duty of care is breached by defendant.
 Whether plaintiff suffer any damage or loss.
 Whether injury or damage caused because of the breach of duty of care (Legal Service
Commission, n.d.}.
It is necessary that all these factors must be satisfied by the plaintiff in terms of satisfying the
negligence-
Duty of care- This is the first and most important element for establishing the tort of negligence,
and it is considered as the legal obligation under which an individual who own duty of care
needs to take action for avoiding the harm which can be caused from the foreseeable risk in case
such individual fails to take care. There are number of times, when Court applied the proximity
test in terms of establishing the duty of care, and as per this test, there must be close relationship
between the parties. In this case, Anna needs to establish that Michael owns duty of care towards
the Anna. Anna directly affected by the actions of the Michael and because of this Michael owns
duty of care towards the Anna. Therefore, Michael owns duty of care towards the Anna.
Breach of duty of care- In terms of establishing the duty of care, court needs to determine the
standard of care which is expected in such situations. Standard of care is considered by
determine the action which can be taken by any reasonable person in the similar situations. In
case defendant fails to act as per those standards then such failure of the defendant is deemed as

Law 3
the breach of duty. There are number of examples through which this concept can be understand
in terms of day to day activities such as driving, skating, etc. In this case, there is foreseeable
risk then also Michael drives the car. Any reasonable person will not drive the car in the effect of
intoxication, and because of this it can be said that Michael breach the duty of care he own
towards the Anna (ALRC, n.d.}.
Injury from breach of duty- It is necessary for the plaintiff to establish that injury or loss caused
to the plaintiff caused because of the breach of duty of care by the defendant. There are number
of cases in which Court determines easily whether breach of duty of care cause injury or not, but
in some cases it is very difficult to determine such things, and the main reason behind this that
there is more than one cause of action. Later, car hit by the tree because Michael drives the car in
the effect of the intoxication.
This can be understood through case law Hedley Byrne v Heller 1964 A.C. 465, in which court
state that if all these facts are established that plaintiff can satisfied the claim of negligence. In
this case, Anna needs to satisfy the above stated facts for establishing the claim of negligence.
Part C
Contributory negligence is considered as the strong defence in terms of the negligence, and this
can be taken by the defendant against the plaintiff claim of negligence. Contributory negligence
is the defence in which injured person itself contributed in the injury or damage, and this defence
can be used by the defendant against the claim of negligence made by the plaintiff.
It must be noted that, contributory negligence occurred in those cases when plaintiff contributes
itself in the negligence, which means, plaintiff does not take reasonable action in context of
ensuring his own care against the risk which is foreseeable in nature. In this context, amount
awarded by the court to the plaintiff in terms of the negligence claim will be decreased to that
extent up to which plaintiff itself contributed in the loss or damage. There are number of
illustration which gives clarification on the contributory negligence, and some of these are
defined below (ALRC, n.d.}-
 Plaintiff falls from the roof because he fails to take reasonable care in terms of ensuring
his own safety, even though such risk is reasonable in nature.
 Any person who engaged in any such activity which includes high level of risk.
In this case, Anna already smells the alcohol and clearly knows that Michael drives the car in
the effect of intoxication, and even after know about this she does not take reasonable action in
context of ensuring his own care against the risk which is foreseeable in nature. Therefore,
Michael can use the defence of intoxication.