Tort of Negligence Free Essay Example

Question 1

What legal issues does this situation raise and what are the possible legal consequences?

Issue 1 duty of care

The tort of negligence to be constituted depend on whether the defendant violate the principle of ‘Duty 0f Care’. Because of the case of Donoghue v Stevenson [1], ‘Duty 0f Care’ has been established in common law: 1. Defendant whether or not fulfill the duty of care. 2. That defendant whether or not breached that duty. 3. whether Breach the duty of care is the main reason to resulting in infringement.

4. Whether the plaintiff suffered virtual damage as a result of the breach.

The bank operators have a duty of care towards the customers if they should have known about the danger around the workplace. in other words, the operators have to consider the likelihood of occurrence before suffered injury. The duty of the bank in this situation was that take such care for safety as was reasonable in the circumstances, and to protect that customers from risk of injury which could be foreseen and avoided.

The result of some negligence cases was depend on whether defendant owed the plaintiff a duty of care or not. In this scenario, the plaintiff was a elderly man who slip and fall on the floor holding his knee and obviously in pain. did Sam(trainee employee), the manager or the corporation owe a duty of care to the customer(the elderly man)? And did they breach their duty of care? Was the brank corporation and the Adelaide branch manager liable for the negligence of its employees(sam)

In this case, the elderly man in order to achieve a successful outcome in this situation have to prove the bank owed a duty to its customer and breach that duty, then also need to prove that the bank breach of the duty caused the elderly man injury and that the injury caused he damages.

In other words, but for the defendant’s actions, the elderly man’s injury would not have occurred. The injury must have been reasonably foreseeable by the defendant, not the elderly man because of he could not be able to foresee the risk and never put themselves in danger.

Since the elderly man slipped and fell near the entrance, and as a result of that slip and fall, he injured his knee. And also found out that the water was on the floor without cleaned up, and there was no sign warning customers of the slippery. The court may be more likely to find that the defendant owed a duty to the old man. Especially Sam and other trainee were not concerned about the elderly man.the court should be consider that Bank for as a financial business service organizations, its should be guaranteed the safety of the customers around the workplace. However, on the other hand, the elderly man need to catch the bus and run up also leads to slip and fall. in this regard he has a part of responsibility which should reduce the liability of bank.

Here is a negligence case that similarly to this scenario that may helpful to analysis this case. Strong v Wool-worths Limited [2012] HCA 5[2]: High Court confirms retailer’s responsibility for slipping hazard. Ms Strong were disabled and required to use crutches to walking in the shopping Centre and she was suffered injury. her crutch touch a greasy chip that was lying on the floor. She slipped and fell and injury seriously. In the prime of case, the court judge-ment dismissed due to the powerless prove that wool-worths caused he damages.

In especial there was no evidence that knowing exactly how long the chip had lying on the floor. However, she appealed in the high court and it was successful because of the court found the prove that the Wool-worths ‘s responsible area had not been check up in the 4 hours between the store opening and the time of Ms strong slip and fall. Wool-worths done’t have a sufficient system of cleaning and check up without a doubt. Finally, the both cases are negligent case and both regard to slip and fall. It could be a very helpful reference for this case, that the court might more likely to In favor of the plaintiff.

Issue 2 Negligent misstatement

In this scenario, Global Banking Corporation decides to hire more new trainees that could be reduce the salaries costs and also give the opportunity to young people. The Adelaide branch arrange its new junior recruits on its enquiry desk to serve new and existing customers. two weeks ago, the manager was really satisfied. From the current situation, The new staff are young and enthusiastic and situation was excellent and surprised. But if we follow the situation that had developed we could found that since new recruits just like Sam was young and lack experience, they might Looks efficient, but the quality of answers was low in fact. And the trainee giving advice to customers actually owes a duty of care seriously which because that they should know that the elderly man(plaintiff) intends to rely on the advice and the advice is a serious nature that the elderly man can not afford the risk obviously. it is hard to believe that they have enough strength of explanation to offer professional and accurate advice for the investors especially for the investment consultancy work. Finally, the legal status of trainee remains controversial. Sometimes can not properly protect their legitimate rights like the corporation whether follow the minimum salary rules.

Issue 3 Vicarious Liability

Was the brank corporation and the Adelaide branch manager liable for the negligence of its employees(sam)？According to the common law that vicarious liability is expressed in three main forms, there are Employability, the principal responsibility and parental responsibility. In this case, the elderly man can sue the employees or the owner. if the employee injure the customers during their employment, the employer should be take the responsibility. Most of the victims sued the latter, this is a very practical approach, because the employer often rich than their employees.

Question 2

Discuss possible defence and other legal principles which might be raised to avoid or lessen liability, having regard to all the facts.

A successful defense for the defendant could be exempt all or part of the damages liability. Therefore, an effective defense is to prove that the defendant did not infringing.

In this case, to establish contributory negligence that the plaintiff was negligence in failing to look after themselves. the elderly man need to catch the bus and run up also leads to slip and fall. in this regard he has a part of responsibility which should reduce the liability of bank. Is worth mentioning that the standard of the contributory negligence has been criticized for being too harsh in Western countries. This is because sometimes the fault of plaintiff is much smaller than defendant have. Of course, the comparative negligence principle has been criticized too, which is due to if someone who filed a lawsuit in order to obtain the 2% of the damages and the remaining 98% was due to their own recklessness or negligence, the jury often compassion for the weak and support the proceedings thus lose their the principle of fairness.

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