Discuss about the Principles of Commercial Law.
Negligence has been regarded as a common law tort, which has been established by way of a case law. In Spite of being a modern tort it has been the most common law principle (The Law Handbook 2016, 2015).
Under the Law of Tort, the concept of Negligence has been meant to be as a failure to take rational care to evade causing damage or harm to other individual. If a person i.e. the plaintiff alleges against another individual an act of negligence then he must show four essential elements which were present (Legal Aid, 2015). The plaintiff must prove that:
The above mentioned elements which gave a right to a plaintiff to claim for damages from a defendant as established years ago in the precedent case of Donoghue v Stevenson [1932] UKHL 100. In this matter it was clearly stated that the applicant could claim from the defendant against an act if:
Duty
A duty of care has been regarded as a lawful duty which was owed to evade causing harm and occur where injury was ‘rationally foreseeable’ if care was not taken. There must also be a adequate association of proximity among the two individuals in order for a obligation of care to subsist (Legal Aid, 2015).
The effect of certain matters relating to negligence relies upon the fact that whether the defendant owed to the plaintiff a obligation of care or not. Such a duty takes place when the law establishes that there has been an association among the respondent and the plaintiff. And as a result of this affiliation, the defendant must have obligated to act in a particular way towards the plaintiff.
An adjudicator usually agrees on whether a respondent owed towards a plaintiff a duty of care. Where a prudent individual would find that a duty subsisted under a specific set of situations then the tribunal would usually find that such a duty subsisted.
As per the Civil Liability Act 1936 there have been certain credentials on the obligation of care such as ‘good Samaritans’ and food donors. Therefore, individuals who were acting in an disaster circumstance without anticipation of imbursement or granting food for a generous aim were usually free from any type of civil liability. Such liability states that an individual did not act carelessly against another individual (Association of Chartered Certified Accountants, 2016).
The Duty of care has been defined as a lawful responsibility not to cause injury against other individual. In Caparo Industries Plc v Dickman (1990) 2 AC 605 it was clearly stated that in order to determine whether an obligation of care susisted or not a three part test must be recognized.
The first was insight, which means that there was a sensible consideration of impairment; the next was closeness, which means a close association existed among the applicant and the respondent. Lastly, it must be fair just and reasonable to entail an obligation and the tribunals must believe whether in all the situations it would be reasonable, fair and sensible that the law should inflict an obligation (Legal Services Commission of South Australia, 2013).
In the present case Trevor owed a duty of care against Anna as she was one of the people who were to be protected as she was one among the individuals who were the team for the track.
Breach
In order to determine whether a obligation of care has been violated or not, the tribunal would look that there was a standard of care that was predictable in the situations was present or not.
The standard of care could be resoluted by looking at what a prudent individual would have done (or not done) in the similar situations. Where a respondent has acted in an irrational manner or their proceedings fell well below the standard which was expected as they would be found to have violated their obligation of care (Australian Government, 2002).
While shaping whether an obligation care has been contravened, deliberation must so be granted to the standard of care which was obligatory. Reasonable care must be taken to avert any predictable injury. As it was clearly specified in the matter of Bolam v Friern HMC (1957) 2 All ER 118, it was concluded that a doctor “would not be guilty of carelessness if he has as per the requirement of the practice which was accepted as appropriate by a body of medical men who were accomplished in that specific art”.
Also, there must be a straight connection among the carelessness on the part of the respondent and the injury suffered by the applicant. This was defined as the injury must be as a result of the contravention of duty on the part of the respondent (Find Law, 2017).
In the case of Baron Alderson in Blyth v Birmingham Waterworks (1856) it was established essentially that it could be impartially calculated by the test of a ‘reasonable person’ that
“Negligence has been established as the act of error to do something which a prudent individual, directed upon those deliberations which customarily standardize the behavior of human relationships. As it states that what a person would have done, or do which a rational and sensible person would not have done” (Legal Services Commission of South Australia, 2016).
But as per the situation which prevails in the present case, there was a clear contravention of duty of care which was violated as Trevor left all the walkers alone. And he was lost in his work and got busy as a result of which he did not paid full attention towards all of the walkers.
Also, after the time when the team returned after sunset when the forest was dark when Trevor clearly observed that there was a rare Marbled Frogmouth perched in a tree i.e. there was a foreseeable harm so, he should have warned the walkers regarding that harm. This was a clear breach of his duty which he owed towards all of the walkers.
As duty to his negligent act Anna’s heal was caught on a tree root as a result of which she endured knee harm.
Damage
The plaintiff has been regarded as the individual who could claim damages. He may be the actual party who was injured, or may be a dependant who was claiming damages on behalf of the individual who was dead. The defendant on the other hand, was the individual who was suspected to have been neglectful or to have been accountable for such negligence (The Law Handbook 2016, 2015).
There have been two aspects to all the assertions which were made by a person for damages for a negligent act such as:
A plaintiff must establish that there was a fault of defendant as he acted in a negligent way;
Once such liability has been established then the tribunal must then assess the sum of proper damages which has to be paid off. As they were usually be assessed as a lump sum amount on a “once and for all” basis.
The lump sum amount could be assessed by adding mutually a number of amounts which were assessed under the heading of damages. It has been the tribunal which makes a division among special damages and general damages.
Special damages: These were the damages which were paid off out-of-pocket expenses. It includes medical and ambulance cost, loss of salary to the date of examination, and other subsidiary costs such as home assistance.
General damages: It includes loss of earning capacity in the future, soreness and pain, slaughter of pleasure of life and defacement. They were of their very character which was incompetent of accurate mathematical computations.
It has been the tribunals who looks at these person features of universal costs and charge the appropriate sum of money that would be just and sensible to both the individuals to recompense the applicant (Find Law,2017).
Similarly, in this case Anna could have claimed damage but it could not claim as there was a contributory negligence which was present.
Defence
In order to effectively defend oneself against a negligence claim, the respondent would make an attempt to contradict one of the constituents of the cause of action of the applicant (Find Law, 2017). In adding up, a respondent may depend on one of a few policies that may eradicate or restrict a responsibility which was founded on the basis of suspected carelessness (Hobart Community Legal Service Inc, 2013).
There have been majorly three doctrines which could be used as a defense by the defendant against the assertion of the applicant for the act of negligence. The doctrines include contributory negligence, comparative liability, and supposition of danger. With the help of any of these doctrines an individual may not be found completely answerable as the other party also was also found neglectful.
In this case there was a clear act of contributory negligence on the part of both the parties as the injured party was also found to have made a contribution to the injury which was caused. And such an act was defined as the act of Contributory negligence under tort which could be used by the defendant to protect himself against the allegation which was made by the plaintiff (Find Law,2017).
As per this concept it was clearly stated that if a applicant has unsuccessful to take sensible care for their own protection or injury then they would be found contributorily neglectful. The sum of costs they could assert would be abridged as per the extent to which they were found to have contributed to the failure.
In the matter of Badger v Ministry of Defence [2005] QBD D it was held that as the plaintiff did not take reasonable care for his own safety so it was observed that there was a contributory negligence against a defendant.
Although, it was the duty of Trevor to take care of all the walkers as when Anna changed her shoes and wore her shoes he was observing the rare Marbled Frogmouth perched in a tree.
But as Trevor specified clearly that all the walkers must wear the shoes which she neglected to follow so there was a clear act of contributory negligence.
Remedies
The principal remedy in all the cases of negligence would be a grant of damages.
The damage caused to the applicant must be of a kind that was ‘reasonably foreseeable’.
In the matter of Overseas Tankship (UK) v Morts Dock and Engineering Co (The Wagon Mound) (1961) it was concluded that the defendants were not held liable since, the damage was foreseeable.
It was observed that if the damage was reasonably foreseeable than the defendant would be liable. Under law, there have been three kinds of remedies such as damages, injunctions and restitution of property (A. Williams & Co., 2017).
Apart from some special or general damages there has been some punitive damages which could be offered to the claimant. In certain situations, if it was predominantly difficult to assess the damages that should be awarded to a applicant, in monetary terms, then the tribunals could can impose exemplary or punitive damages.
Conclusion
Therefore, it could be concluded at the end that in the present case as the harm was foreseeable and it was the plaintiff who did not take care of her own safety, so there was a mutual mistake on the part of both the parties. There was a breach of duty of care on the part of Trevor who left the walkers alone to a new location. But at the same time it could be stated that as it was clearly stated by Trevor to all the walkers that they must wear shoes as it was dangerous and it was Anna who carelessly disregarded his instructions. So, she could not held Trevor entirely liable for the injury.
As being a rational individual she would also have taken immense care to follow and wear the shoes as it was told by Trevor to all the walkers. So, now Anna could not held Trevor entirely liable to sue in Negligence and claim 12 months in lost income and punitive damages to punish him.
References
Association of Chartered Certified Accountants. (2016).The Tort Of Negligence. Retrieved on 16th January’ 2017 from: https://www.accaglobal.com/in/en/student/exam-support-resources/fundamentals-exams-study-resources/f4/technical-articles/tort-negligence.html
Australian Government. (2002). Foreseeability, Standard of Care, Causation and Remoteness of Damage. Retrieved on 16th January’ 2017 from: https://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/~/media/Treasury/Consultations%20and%20Reviews/Reviews%20and%20Inquiries/2002/Review%20of%20the%20Law%20of%20Negligence/Key%20Documents/PDF/Foreseeability.ashx
Bugg, T. (2006). Negligence and damages – personal injury, property damage and pure economic loss. Retrieved on 16th January’ 2017 from: https://www.lawcouncil.asn.au/lawcouncil/images/LCAPDF/speeches/20060526Negligenceanddamages.pdf
Find Law. (2017). Contributory and Comparative Negligence. Retrieved on 16th January’ 2017 from: https://injury.findlaw.com/accident-injury-law/contributory-and-comparative-negligence.html
Find Law. (2017). Defenses to Negligence Claims. Retrieved on 16th January’ 2017 from: https://injury.findlaw.com/accident-injury-law/defenses-to-negligence-claims.html
Find Law. (2017). Elements of a Negligence Case. Retrieved on 16th January’ 2017 from: https://injury.findlaw.com/accident-injury-law/elements-of-a-negligence-case.html
Find Law. (2017). Proving Fault: What is Negligence?. Retrieved on 16th January’ 2017 from: https://injury.findlaw.com/accident-injury-law/proving-fault-what-is-negligence.html
Hobart Community Legal Service Inc. (2013). Defences to the Tort of Negligence. Retrieved on 16th January’ 2017 from: https://www.hobartlegal.org.au/tasmanian-law-handbook/accidents-and-insurance/negligence/defences-tort-negligence
Hobart Community Legal Service Inc. (2013). Negligence and the Duty of Care. Retrieved on 16th January’ 2017 from: https://www.hobartlegal.org.au/tasmanian-law-handbook/accidents-and-insurance/negligence/negligence-and-duty-care
Legal Aid. (2015). Negligence, duty of care and loss. Retrieved on 16th January’ 2017 from: https://www.legalaid.qld.gov.au/Find-legal-information/Personal-rights-and-safety/Injury-loss-and-compensation/Negligence-duty-of-care-and-loss
Legal Aid. (2015). Negligence. Retrieved on 16th January’ 2017 from: https://www.legalaid.wa.gov.au/InformationAboutTheLaw/BirthLifeandDeath/Personalinjury/Pages/Negligence.aspx
Legal Services Commission of South Australia. (2013).What is negligence?. Retrieved on 16th January’ 2017 from: https://www.lawhandbook.sa.gov.au/ch29s05s01.php
Legal Services Commission of South Australia. (2016). Negligence. Retrieved on 16th January’ 2017 from: https://www.lawhandbook.sa.gov.au/ch01s05.php
The Law Handbook 2016. (2015). Negligence and injury. Retrieved on 16th January’ 2017 from: https://www.lawhandbook.org.au/10_01_00_negligence_and_injury/
The Law Handbook 2016. (2015). Negligence, liability and damages. Retrieved on 16th January’ 2017 from: https://www.lawhandbook.org.au/10_01_01_negligence_liability_and_damages/
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