Law Assignment | Principle of Commercial Law
Added on 2020-05-16
12 Pages3438 Words135 Views
Running head: PRINCIPLE OF COMMERCIAL LAWNegligence and EthicsName of the student:Name of the university:Author note
1PRINCIPLE OF COMMERCIAL LAWTable of ContentsAnswer of part A........................................................................................................................2Issue:.......................................................................................................................................2Rules:......................................................................................................................................2Duty of care:.......................................................................................................................2Breach of duty:...................................................................................................................3Proximate relation:.............................................................................................................4Damage:.............................................................................................................................5Defence:.............................................................................................................................5Application:............................................................................................................................6Conclusion:.............................................................................................................................7Answer to part B........................................................................................................................8(a)............................................................................................................................................8(b)...........................................................................................................................................8c).............................................................................................................................................9Reference:................................................................................................................................10
2PRINCIPLE OF COMMERCIAL LAWAnswer of part AIssue:Advice Marcos regarding the scope of claiming compensation from Alice under thenegligent act is the main issue of this case.Rules:An ordinary person has certain reciprocal duties that he has to perform. When hefails to perform the same, he is stated to do negligent act. In Australia, negligence is a part ofthe Tort Law (Martin 2016). One of the most remarkable cases on the negligence isDonoghue v Stevenson where the essential elements of negligence have been described. Ithas been stated by the court that the acts of the person must meet all the requirements statedunder:The defendant has certain duties to the victim;The defendant has failed to perform his duties like a prudent man should do;The negligent act has caused a damage to the victim;The damage is not foreseeable in nature.Duty of care:An act will be termed as negligence on the fulfilment of above noted facts. Duty totake care denotes legal duty. In the case of Donoghue v Stevenson, it has been observed thatthe manufacturer had failed to perform his duty to serve good quality of product and theconsumer get sick due to such carelessness. This caused great physical and mental damage tothe consumer. The court observed that the manufacturer is legally bound to provide goodproducts and owe a duty to the consumer.
3PRINCIPLE OF COMMERCIAL LAWIn case of Grant v Australian Knitting Mills Ltd (1935) AC 85, the plaintiff haddeveloped certain skin disease after buying the product of the defendant. It was examined andfound that the cloths are contained of excessive sulphates. The court was pleased to pass itsjudgment against defendant as he failed to take reasonable care for the products and thatcaused serious damage to the plaintiff. Breach of duty:The second important element of negligent act is the breach of duty made by thedefendant during their ordinary course of business. In McHale v Watson (1966) 115 CLR199, two children were playing and by the careless act of the defendant, plaintiff had lost hiseye. It was held that though both the plaintiff and defendant were minor and defendant hadnot intentionally did the wrong act, he should be cautious in his part and he had failed to actlike a prudent person and therefore, the plaintiff can claim for damage from him. However,the next important thing in case of negligent Act is the seriousness of the consequence(Cavico et al. 2016). If the negligent act of the defendant has caused a great dilemma to theplaintiff, the defendant will be liable to pay compensation to the plaintiff. Such damageshould be cropped up by the breach made by the defendant. In Rogers v Whitaker [1992]HCA 58, the plaintiff was treated by the defendant and by the negligent act of the defendant,plaintiff had lost his eye. It has been found by the court that defendant was failed to performhis legal duties and such failure caused irreparable damage to the plaintiff. Similar situationarose in the case of Woods v Multi-Sport Holdings (2002) 208 CLR 460. In that case, thedefendant had failed to warn the plaintiff regarding the eye injury and also failed to providenecessary instruments so that the chances of accident can be avoided. It has been observedthat the defendant could not able to provide helmet to the plaintiff and consequently, theplaintiff had sustained certain eye injury. Therefore, the acts of the defendant have beenconsidered as negligent act. In Waverley Council v Ferreira [2005] NSWCA 418, a child was
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