Charles Darwin University: LAW514 Commercial Law Assignment Solution

This document presents a comprehensive solution to a commercial law assignment, specifically addressing a problem-based question. The assignment focuses on a scenario involving a gardener, a resident, and a company, exploring issues of negligence, vicarious liability, and damages. The solution meticulously examines the elements of negligence, including duty of care, breach of duty, causation, and injury, referencing relevant case law such as Donoghue v. Stevenson and Caparo Industries PLC v. Dickman. It then delves into the concept of vicarious liability, analyzing whether the company is liable for the gardener's actions, supported by cases like Hollis v. Vabu and Deatons Pty Ltd v. Flew. Finally, the solution considers the issue of contributory negligence and its impact on potential damages, referencing cases like Butterfield v. Forrester. The document concludes with a clear determination of the legal outcomes for each issue, providing a well-structured and detailed analysis of the legal principles involved.

Running head: COMMERCIAL LAW
Commercial Law
Name of the Student
Name of the University
Author Note

1COMMERCIAL LAW
Issue 1
Whether there was a tort of negligence.
Rule
Negligence can be said to be a wrongful activity, which involves a failure of a person to
apply required care that he has a duty to exercise under a given circumstances and has
consequently caused injury to another person1. There are four essentials that are required to
be present in an act to be considered as negligent. These are:
 A person who has been alleged to have acted in a negligent manner is required to
have a duty of care that he has incurred from a particular situation. This can be
illustrated with the case of Donoghue v Stevenson2. It has been held in the case of
Caparo Industries PLC v Dickman3 that the duty of care has to be determined
applying the threefold test. The threefold test comprises of foreseeability that is
reasonable, proximity among the wrongdoer and the aggrieved and a liability,
which can be fairly imposed.
 The person who has the duty to exercise care is required to have acted in a manner,
which has the effect of breaching that duty to bring his act under the purview of
negligence. This can further be illustrated with the case of Wyong Shire Council v
Shirt4.
 The negligent act of breaching a duty needs to have caused an injury to another
person who has been affected by the breach of duty. This can be illustrated with
the case of Tubemakers of Australia Ltd v Fernandez5.
1 Turner Trone, Australian Commercial Law, Thomson Reuters Australia, 31st edition, 2016.
2 [1932] AC 532
3 [1990] UKHL 2
4 [1980] HCA 12
5 [1976] 10 ALR 303

2COMMERCIAL LAW
 The aggrieved is required establish a proximate relation between the negligent acts
and the injury of the person. It needs to be proved that the injury that has been
caused to a person has a direct relation to the negligent act. This can be illustrated
with the case of March v Stramare (E & MH) Pty Ltd6.
An act of a person, which has all the four elements of negligence present in it would be
said to be a negligent act and would confer the aggrieved with the right to claim damages for
the injury that has been caused to him. This can be illustrated with the case of Blyth v
Birmingham Waterworks Co7.
Application
In the present situation, the job involves the trimming and maintaining of a garden situated
at the rooftop of the apartment building. This requires a duty of care to be exercised by the
gardener that he has incurred owing to his working in the garden present in the rooftop,
which is accessible by the residents of the building. This existence of the duty can further be
illustrated with the case of Donoghue v Stevenson8. Applying the threefold test it can be
contended that a hazard was foreseeable from the work, it has created a relation between the
residents and the gardener, and the gardener is liable for the safety of the same. This can be
supported with the case of Caparo Industries PLC v Dickman9. It has been notified to the
residents of that building by way of a general notice, which has been dropped in their
mailbox that the roof should not be accessed by the residents while the garden work has been
carried out during the morning. They should avoid going to the rooftop before lunch time.
This can be said to be a precaution with respect to the duty of care.
6 [1991] HCA 12
7 [1856] Ex Ch 781
8 [1932] AC 532
9 [1990] UKHL 2

3COMMERCIAL LAW
After the elapsing of 10 minutes of the initiation of the garden work, Marie went to the
internal stairs to the rooftop for the purpose of having a cigarette. Subsequently, she passes
the door way at the top of the stairs and walks out to the rooftop. As a consequence, she slips
over a palm leaf and breaks her wrist. The palm leaf upon which she has slipped, was cut off
by the gardener for the purpose of his garden work. This however directs towards the breach
of a duty of care on the part of the gardener as the degree of the hazard pertaining to the job
required the gardener to have taken more strict safety measures. This can further be supported
with the case of Wyong Shire Council v Shirt10.
This led Mary to be taken to the hospital and she has been diagnosed with broken wrist.
This can be treated as an injury that has been caused owing to the breach of duty as
established in the case of Australia Ltd v Fernandez11.
. She has claimed that she has incurred medical expenses and was required to cancel and
overseas trip that she had planned for the following week owing to the mishap that has been
caused because of the negligent act of the gardener. The causation of the injury and the
negligent behaviour were connected causing an instance of negligence as can be backed by
the case of March v Stramare (E & MH) Pty Ltd12.
Hence, an act of negligence has been caused as all the elements of negligence are evident
from the situation. This can be contended in line with the case of Blyth v Birmingham
Waterworks Co13.
Conclusion
There was a tort of negligence.
10 [1980] HCA 12
11 [1976] 10 ALR 303
12 [1991] HCA 12
13 [1856] Ex Ch 781

4COMMERCIAL LAW
Issue 2
Whether Nilesh is liable for actions of the gardener.
Rule
Any person who is in a position to control the actions of another would be held vicariously
liable for the wrongful acts of the latter14. Vicarious liability exists when a superior has
authorised an inferior to carry out a particular act either by delegation or by any other way of
conferring authority and the inferior has acted in a wrongful manner causing harm to a third
person. The same can be illustrated with the case of Hollis v Vabu15. However, to hold
superior liable for the wrongful acts of the inferior, the inferior needs to have committed the
wrongful act within the scope of his authority conferred upon him by the superior. This can
be illustrated with the case of Deatons Pty Ltd v Flew16.
Application
In the present case, owing to the splendid work that has been exhibited by the gardener,
Nilesh and Co Pty Ltd. has noticed that the gardener only works for 2 hours a day and stay
idle for or the rest of the 8 hours. This made Nilesh to discuss the matter with only the CEO
of the company so that they can subcontract the gardener for other jobs that are required in
Darwin. This has earned the first job for the gardener, which was ordered by Marie. This job
involves the trimming and maintaining of a garden situated at the rooftop of the apartment
building. The negligent act has occurred while the gardener has been pursuing the garden
work which has been authorised by the company. This would require the company to be held
vicariously liable for the acts of the gardener as established in the case of Hollis v Vabu17.
Moreover, the acts of the gardener has been committed under the scope of authority that has
14 Turner Trone, Australian Commercial Law, Thomson Reuters Australia, 31st edition, 2016.
15 [2001] HCA 44
16 [1949] HCA 60
17 [2001] HCA 44

5COMMERCIAL LAW
been conferred upon him by virtue of the authorisation of the company and applying the
principle established in the case of Deatons Pty Ltd v Flew18, the company can be held
vicariously liable.
Conclusion
Nilesh is liable for actions of the gardener.
Issue 3
Whether there are any damages that are required to be paid with respect to medical
expenses and money lost by cancelling holiday or both.
Rule
Contributory negligence depicts a situation where the person who has suffered injury
owing negligent act of others has contributed towards the act of negligence19. This can be
illustrated with the case of Butterfield v. Forrester20. Contributory negligence has the effect of
reducing the liability of the wrongdoer in proportion to the contribution of the aggrieved
towards the same. This can be illustrated with the case of Douglas v. Harris21.
Application
After the elapsing of 10 minutes of the initiation of the garden work, Marie went to the
internal stairs to the rooftop for the purpose of having a cigarette. Subsequently, she passes
the door way at the top of the stairs and walks out to the rooftop. As a consequence, she slips
over a palm leaf and breaks her wrist. Owing to this, she claimed medical expenses and
money lost by cancelling holiday or both. In this case it can be stated that she has contribute
18 [1949] HCA 60
19 Turner Trone, Australian Commercial Law, Thomson Reuters Australia, 31st edition, 2016.
20 11 East. 60, 103 Eng. Rep. 926
21 35 N.J. 270, 281, 173 A.2d 1 (1961)

6COMMERCIAL LAW
to the negligent act and her claim for damages will be reduced proportionately. She can claim
a part of the medical expenses but not the loss of cancellation of holiday.
Conclusion
She can claim a part of the medical expenses but not the loss of cancellation of holiday.

7COMMERCIAL LAW
Reference
Australia Ltd v Fernandez (1976) 10 ALR 303
Blyth v Birmingham Waterworks Co [1856] Ex Ch 781
Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926
Caparo Industries PLC v Dickman [1990] UKHL 2
Deatons Pty Ltd v Flew [1949] HCA 60
Donoghue v Stevenson [1932] AC 532
Douglas v. Harris, 35 N.J. 270, 281, 173 A.2d 1 [1961]
Hollis v Vabu [2001] HCA 44
March v Stramare (E & MH) Pty Ltd [1991] HCA 12
Wyong Shire Council v Shirt [1980] HCA 12
Turner Trone, Australian Commercial Law, Thomson Reuters Australia, 31st edition, 2016.