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The Tort of Negligence Law: Assignment

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Added on  2020-04-01

The Tort of Negligence Law: Assignment

   Added on 2020-04-01

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Running head: TORT LAWSTort LawsName of the studentName of the universityAuthor note
The Tort of Negligence Law: Assignment_1
1TORT LAWSIssue The issue which have been identified in the given scenario is to find out that whetherRebecca can make a claim against Michelle for negligenceRule The tort of negligence is dealt with in Australia through the common law provisions aswell as the civil liabilities legislations of the respective states and territoriesAll civil liability legislations have similar provisions in relation to negligence by a personin Australia. The rules of negligence had been used in Australia for the first time in the famous case ofAustralian Knitting Mills, Ld. v. Grant1. The principles used in this case were derived fromthe landmark case of Donoghue v Stevenson2which first coined the term duty of care throughthe concept of neighbors principle. For establishing negligence the plaintiff has the burden of proof based on the balance ofprobability to provide that the defendant was negligent. The plaintiff has to prove before thecourt that the defendant owed them a duty of care. In case the plaintiff is able to establish a dutyof care they must then provide that the defendants were negligent in their actions. Finally theplaintiff has to show that the injury suffered by them resulted out of the negligent action. In common law a duty of care is eminent where a person can foreseeably be injuredbecause of the action committed by another as in case of Caparo Industries pIc v Dickman31 50 C. L. R. 3872 1932 AC 5223 [1990] 2 AC 605
The Tort of Negligence Law: Assignment_2
2TORT LAWSIf a reasonable person implemented better care to avoid the injury the duty is said toviolated as provided by Vaughan v Menlove 4Factual causation is determined through the application of the But For test where if theinjury would have not been caused unless the act was committed negligence is not establishesaccording to Barnett v Chelsea & Kensington Hospital5The civil Liability Act 2002 (NSW)6 defines negligence through s5 as a failure on thepart of the person to take reasonable care and exercised due skills. The court in the case ofD'Arcy v Corporation of the Synod of the Diocese of Brisbane7ruled that a person can beheld negligent in relation to his acts if the injury which has been caused to another person couldhave been foreseen. In addition the effect of the injury on the person were significant and aperson who if applied reasonable skills and care in the situation could have avoided causing theinjury. In the case of Liverpool Catholic Club Ltd v Moor8the court ruled that whether anaction is due implementation of reasonable skill and care is determined by analyzing theprobability of the injury in case care not observed, how serious the injury can be caused, theprecaution taking Burden and the utility of the action causing the injury socially. In the case of Stokes v House With No Steps9it had been ruled by the court whether thenegligent act was a significant part of the injury is necessary to determine the claim of4 (1837) 3 Bing. N.C. 4675 [1969] 1 QB 4286 The civil Liability Act 2002 (NSW)7 [2017] QSC 1038 [2014] NSWCA 3949 [2016] QSC 79
The Tort of Negligence Law: Assignment_3

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