Assignment commercial law Essay Example

Law of Negligence

Department

Based on the present case, this analysis will intend to explore on several issues including; identifying whether there was any breach of the law of negligence by the management of Grampian Park. Secondly, the analysis will look into the issue of remedies available to Azaria if negligence exists in the present case. Lastly, the analysis will discuss relevant and applicable laws in this case.

The most relevant law under the Australian business law is the law of negligence as borrowed from the English common law. However, this analysis will equally explore relevant case laws that have in the recent past been applied by the Australian justice system.

Analysis

Borrowing from the English common law, negligence is categorized as a tort just like defamation, nuisance and trespass. Accordingly, negligence is broadly defined as a legal action brought by the plaintiff against a defendant for failure to honor the duty of care (Stewart, & Stuhmcke, 2012). In this regard, this tort has three key elements all of which the plaintiff must proof. These elements include; a failure to provide care by the defendant thus causing injury to the plaintiff; that the defendant breached that duty of care by failing to confirm to the necessary standards of care, and lastly, injury was incurred by the plaintiff due to the carelessness or the breach of the duty of care (Lanham, et al., 2006). The land mark case for the law of negligence was the Donoghue v Stevenson, commonly referred to as the ginger-bottle, where the plaintiff sued for negligence from the plaintiff after finding a snail inside a ginger-beer bottle she had purchased from the café. In this case the House of lord’s sitting in London ruled that the café did not have any duty of care in this case but, the manufacturer of the product. This means that the manufacturer should have foreseen injury to the plaintiff for failure to take care (Donoghue v Stevenson, 1932).

Nonetheless, the Civil Liability Act of 2002 (NSW), made several changes to the earlier position under English common law. This Act of parliament introduced a three step test in pace for risk of personal injury (The Civil Liability Act of 2002 (NSW), 2002). Thus, presently, the Act of parliament under Section 5B (1) holds that, a defendant cannot be held negligent for failing to take securities against a risk of injury except: the risk was foreseeable meaning that thedefendant knew or should have known about the risk, the risk was not minor and caused injury to the plaintiff and that in the prevailing circumstances, a reasonable person would have taken the required/expressed precautions (Law Vision Pty Ltd, 2008). Further, the act states that it is the duty of the court to determine whether a reasonable person would have taken the expressed precautions against a risk of harm by considering; the possibility that the injury would occur if care were not taken; the probablegravity of the injury, the liability of implementing the duty of careso as to prevent the risk injury, and lastly the social effectiveness/ purpose of the activity that creates the risk of injury.

The last step is to determine that there was breach of the duty of care. In this regard, to determine a breach the court must consider the following factors. The possibility that the risk was foreseeable. This means that the complex the risk the more the efforts the defendant’s duty of care. For instance, in the Chapman v Hearse, the high court held that it is of significance to consider whether a reasonable man might foresee, in this case a collision, the presence of the attendant. Thus, the court overruled the appeal and Chapman was held negligent and regarded as the origin of Dr. Cherry’s death given that he was within the jurisdiction of reasonable foreseeability (Chapman v Hearse , 1961). Secondly, the court must consider the rationality of the defendant’s precautions, through factors such as, the cost and liability imposed by eliminating the risk, the social and public utility of the defendant’s behavior (University of Western Australia, 2009).

Finally, the only available remedy to the plaintiff is only compensation for the damage which has incurred by the defendant. The injury may involve physical injuries such as a loss of eye sight, impaired hearing or deafness, broken limbs, memory loss and in critical cases death. For example, in the aforementioned case law Donoghue v Stevenson, the plaintiff sued damages for gastroenteritis which would have been awarded if the right defendant was sued. More so, in the past claims have been successfully made by the injured party, as well as family members in case of death. Thus, relying on the landmark case, Donoghue v Stevenson, a duty of care exists due to a relationship between the two parties, and not through a reference to a definite action or damage (Donoghue v Stevenson, 1932). In this case, negligence required not only determining if a child with Alexia Harriton’s infirmity would be better off if they were never born, but also requires the attribution of a monetary value to their upbringing.

Conclusion

Based on the analysis of this case, the issues have proved that Grampian Park had an obligation to give due care to a visitors. Due care in his case would be in relation to providing warning signs about the presence of kangaroos. Supplying such information on their “premises” would act as a disclaimer and make their customers aware of the circumstance and take appropriate measures to mitigate risk. Another appropriate measure would be through employing security guards or experts to handle the kangaroos and deter them from the park. This would give its clients sufficient protection from being attacked. Secondly, Grampian Park is in breach of the duty of care since they did not act on a foreseeable outcome. It was the parks duty to protect and give notice to its clients from kangaroo attacks while under their care. Lastly, there is proof of negligence from the fact the defendant (Grampian Park) was attacked while on the premises of the plaintiff (Azaria) which resulted to death. In this regard Grampian Park is liable for negligence and they must compensate the plaintiff’s family for the death (L Shaddock & Associates Pty Ltd v Parramatta City Council, 1981).

On the other hand, if the facts indicated the Grampian Park had recently made an application to the Grampian council to cull the kangaroos in the surrounding area because last year 6 children had been attacked while playing in the playground, the magnitude of the risk would have been minimal. This would mean that, they had acted on a foreseeable outcome and this shows they worked within the duty of care. Nonetheless, this would not be sufficient since they should publicize the danger posed by the kangaroos to their clients by placing notices on their premises. As such, although the weight of negligence would have reduced in the second case, Grampian Park would still be liable for negligence.

References

Chapman v Hearse (1961) 106 CLR 112.

Donoghue v Stevenson (1932) AC 562.

L Shaddock & Associates Pty Ltd v Parramatta City Council (1981) ALR 385.

Lanham, D., Wood, . D., Bartal , . B. & Evan, . R., 2006. Criminal Laws in Australia. 1 st ed. Leichhardt, New South Wales: Federation Press.

Law Vision Pty Ltd, 2008. The Law of Torts. Available at:
[Online] http://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf [Accessed 11 September 2015].

Stewart, , P. & Stuhmcke, A., 2012. Australian Principles of Tort Law. 3 rd ed. Leichhardt, New South Wales: Federation Press.

The Civil Liability Act of 2002 (NSW), 2002. The Civil Liability Act of 2002 (NSW). New South Wales : Australian Parliament.

University of Western Australia, 2009. Negligence. Available at:
[Online] http://www.law.uwa.edu.au/__data/assets/pdf_file/0008/1838186/Example_Development-of-law-negligence.pdf [Accessed 11 September 2015].