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Commercial Law - volenti non fit injuria

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Added on  2019-10-30

Commercial Law - volenti non fit injuria

   Added on 2019-10-30

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Commercial LawNegligence and its defenses(Student Details: )
Commercial Law - volenti non fit injuria_1
REBECCA’S CASE2IssueThe case study highlights the case of negligence and the possible defence of volenti non fitinjuria. The key issue of this case is to find if Michelle can be held liable for negligence and canbe asked to pay damages to Rebecca, or whether there was a presence of volenti non fit injuria,which would nullify her claims? RuleNegligence can be defined in the simplest forms as such a breach of the obligation of care owedby one person to some other person. This has to include the harm, loss or injury to the person towhich the duty of care was owed due to the actions undertaken by the individual who owed aduty to care to such injured or harmed party (Greene, 2013). In order to make a case ofnegligence before a court of law, the plaintiff is required to show that there had been a duty ofcare owed to him, which had been violated, which caused harm/ loss/ injury, and was not onlyforeseeable in a reasonable manner but was also not too remote, in addition to the presence ofproximity between the parties and a direct causation between the breached duty and the injury/harm/ loss of the plaintiff (Statsky, 2011). For establishing duty of care, proximity, reasonable foreseeability and contravention of duty ofcare, the English case of Donoghue v Stevenson [1932] UKHL 100 proves to be of help. In thiscase, Donoghue drank the ginger beer from the bottle which was manufactured by the defendantof this case, Stevenson. As a dead snail was present inside this bottle, the drink wascontaminated and upon drinking the same, Donoghue fell sick and sued for compensation undertort of negligence committed by Stevenson. However, Stevenson denied owing a duty to
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REBECCA’S CASE3Donoghue (Lunney and Oliphant, 2013). The court held otherwise and stated that a duty of carewas owed by Stevenson due to the proximity of relationship between a consumer and themanufacturer of the product. Further, this risk of harm was reasonably foreseeable due to the factthat a contaminated bottle was bound to make the consumer sick. As the manufacturer failed toensure the safety of thee ginger beer, he contravened his obligation of care and was asked tocompensate Donoghue for her losses (Latimer, 2012).Whenever a case of negligence is made, a common defence which is cited is that of volenti nonfit injuria. As per this concept, the plaintiff of the case, i.e., the person who has been injured as aresult of the negligence of other knowingly takes the risk even when they are clearly aware of thefact that the risk of harm/ injury/ loss was present. When this defence is present, the claim ofnegligence is not upheld (Turner, 2013). In the case of ICI Ltd v Shatwell [1965] AC 656, the brother had been injured due to theexplosion of the quarry of the defendant which was a result of the negligence of the brother. Aworker had gone to get more wire yet they did not wait for him and tested with a shorter wire.When the explosion occurred, they made a claim against the defendant on the basis of concept ofvicarious liability of the employer for negligence and also for violating the statutory duty to theother brother. However, the defendant raised the defence under volenti non fit injuria andpresented that they had clear knowledge of risk and that they had acted against the expressinstructions given to them. The court upheld this defence and quashed the claims of the brothers(E-Law Resources, 2017). When it comes to such cases where driving under the influence of alcohol is involved, and wherean accident is caused as a result of it, it is clear that such accidents occur due to the diminished
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