Principals of Commercial Law : Assignment
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Added on 2020-05-16
Principals of Commercial Law : Assignment
Added on 2020-05-16
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Running head: PRINCIPLE OF COMMERCIAL LAWStudy on negligence and ethicsName of the student:Name of the university:Author note
1PRINCIPLE OF COMMERCIAL LAWTable of ContentsAnswer given to part A..............................................................................................................2Introduction:...............................................................................................................................2Issue:.......................................................................................................................................2Rules:......................................................................................................................................2Duty of care:.......................................................................................................................3Breach of duty:...................................................................................................................4Damage:.............................................................................................................................5Defense:..............................................................................................................................6Application:............................................................................................................................7Conclusion:.............................................................................................................................8Answer given to part B..............................................................................................................8(a)............................................................................................................................................8(b)...........................................................................................................................................8(c)............................................................................................................................................9Reference:................................................................................................................................10
2PRINCIPLE OF COMMERCIAL LAWAnswer given to part AIntroduction:The given case is based on negligence and certain part of the contract law. Negligencecan be defined as a part of the Tort law, which deals with the civil wrongs. It gives anopportunity to plaintiff to claim for compensation from the wrongdoer for his or hercarelessness. When the acts of negligence caused damage to others or resulted in causinginjury to the plaintiff, it will be come under the purview of negligence and the legal actiontaken against such conduct. Three legal elements should be present in a tort of negligence.These include duty of care, breach of duty of care and the damage caused to the plaintiff dueto such breach of duty. The Civil Liability Act 2003 (Qld) was enacted to deal with claimsunder the negligence. In order to establish the three essential elements the plaintiff must prove the followingessential elements.Duty of care- the defendant owed duty of care towards the plaintiff at the time the negligentact was conducted. As was observed in Donoghue v Stevenson [1932] AC 562, not everyconduct shall amount to negligence. Therefore, the defendant must have a legal duty that isrecognisable at the time of alleged carelessness of the defendant. Breach of Duty of Care- the defendant has failed to exercise such care that has amounted tobreach of duty of care. The defendant shall be liable for careless conduct that is inconsistentwith a legally expressed standard. As was observed in Wyong Shire Council v Shirt [1980]146 CLR 40, the breach of duty of care should be such that any reasonable person wouldconsider such act of the defendant to be a breach of duty car.
3PRINCIPLE OF COMMERCIAL LAWThe test for breach of the duty of care is stipulated under section 9(1) of the Civil LiabilityAct. It was stated that a person is not negligent while taking precautions against a risk ofharm unless:a)There was at least probability of harm making the significant;b)The risk was foreseeable by the defendant as any prudent person would have foreseensuch risk;c)Under the circumstances, any prudent person would have taken necessaryprecautions;According to section 9(2) CLA, a reasonable person should ensure the standard of care that isexpected from the defendant.a)The probability that the harm could have taken place, if care had not been taken asobserved under Bolton v Stone [1951] AC 850;b)The likelihood of severity of the harm if it had occurred under Rogers v Whitaker[1992] HCA 58;c)The burden of taking precautions to avert the risk of harm as observed under Woods vMulti-Sport Holdings [2002] 208CLR 460;d)The social utility of the activities that has resulted in harm as was held under Bolton vStine [1951]AC 850;Damage caused to plaintiff- the defendant’s breach of duty has resulted in injuries caused tothe plaintiff and that the damage was a direct result of the breach of duty and was not remote.As stipulated under section 11 (1) (a) of the CLA, the plaintiff must establish that tehcarelessness of defendant was the reason for the damage caused to him as was held inChappell v Hart [1998] 185 CLR 232.
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