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LLB 240 - Tort Law - McTools company Case

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University Of Wollongong

   

law of torts (LLB 240)

   

Added on  2020-03-01

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In this assignment, we will discuss the same principle of duty of care and discuss whether contributory negligence would applicable.  Aurora, the victim, had failed to follow the instructions properly and suffered from a serious eye injury. Therefore, the law to claim full compensation from the company bars her and the observation of the case of Mak Woon King will be applied. It was her duty to take possible care to avoid any harm. However, she failed and the principle of contributory negligence would be injected here.

LLB 240 - Tort Law - McTools company Case

   

University Of Wollongong

   

law of torts (LLB 240)

   Added on 2020-03-01

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Running head: LAWTort LawName of the student:Name of the university:Author note
LLB 240 - Tort Law - McTools company Case_1
1TORT LAWIssue:The issue of the case is whether the McTools company is responsible for the accidentoccurred or not. Another issue raised in the case is whether the company is liable to pay fullcompensation to the company or not.Laws:This case attracts the principle of duty of care and contributory negligence that areengraved under the provision of Tort law1. In Australia, tort law is based on the principle ofcommon law. Both the principles are within the scope of the term negligence. Negligence is acareless act that injured a person and may cause damage to the victim. A person is said to donegligence if he fails to take certain measures what a prudent man would do in that position.Negligence has been attached in the Civil liability Act 2002 in Australia. In the case ofnegligence, the claimant has to prove the damage that is occurred due to the negligent act ofthe wrongdoer2. Therefore, from the definition of negligence, the duty of care principle is observed. Itis the duty of every person to act diligently so that it could not harm others. In a historicalcase of Donoghue v. Stevenson [1932] AC 562, it was observed by the Court that themanufacturer of a product is liable for the every disputed item that are made by him. Theelements of duty of care are engraved in the case3. In this case, it was held that if the claimant1Barry, C. (2017). Statutory modifications of contributory negligence at common law.Precedent (Sydney,NSW), (140), 12.2Cusimano, G. S., & Roberts, M. L. (2016). Contributory Negligence and Assumption of Risk.Alabama TortLaw,1.3McKendrick, E. (2014).Contract law: text, cases, and materials. Oxford University Press (UK).
LLB 240 - Tort Law - McTools company Case_2
2TORT LAWproves the violation regarding the provision of the duty of care, the defendant has tocompensate the claimant. The main objective of the case is that the defendant should foreseethe effect of anything conducted by him. Problem regarding the duty of care is that the limitof the liability in such cases. In a famous case of Ultramares Corp. v Touche & Co 174 NE441 (1931), a company suffers for the wrong accountant policies of the accountant and aclaim arose regarding the breach of duty of care by the accountant. Court stated that theliability of a person under this provision could be limitless and it is to be understood whetherthere is a scope for the person to foresee the damages4. In Perre v Apand (1999) 198 CLR180, the court was pleased to decide that if the conduct of the defendant is not foreseeable innature, he will not be liable under the provision of the Duty of Care. The duty of care can beclaimed in circumstances like physical or mental harm caused to the plaintiff. Damage can beclaimed in case of emotional shock too. The provision is described in section 31 of the CivilLiability Act 2002. Under section 5D of the Civil Liability Act 2002, there is a provision regarding theharm is mentioned. Under the elements of the negligent act and the provision of the duty ofcare, harm is one of the essentials. The harm can be of physical or psychological damage. The present case is attracting the provision of the contributory negligence too. In thetort law of Australia, there are certain defenses mentioned for the defendant where theclaimant is barred by law to claim full amount of damages from the defendant. Contributorynegligence is a part of it. Under this rule, it is to be observed whether the claimant is alsoliable for the accident or not. In Pitts v. Hunt [1990] 3 All ER 34, it was observed by the4Ferrara, S. D., Baccino, E., Boscolo-Berto, R., Comandè, G., Domenici, R., Hernàndez-Cueto, C., ... & Pinchi,V. (2016). International Guidelines on the Methods of Ascertainment of Personal Injury and Damage UnderCivil-Tort Law. InPersonal Injury and Damage Ascertainment under Civil Law(pp. 583-602). SpringerInternational Publishing.
LLB 240 - Tort Law - McTools company Case_3

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