Principles of Commercial Law of Annie and Brett †Free Samples

Question: Discuss about the Principles of Commercial Law Annie and Brett. Answer: Preface As per the given facts, the main dispute is incurred maid Brett and Annie. Annie is the plaintiff and the Brett is considered as defendant. Annie intends to take an action under the law of negligence against Brett and intends to claim compensation for the damages suffered by her. The burden of proof is upon the plaintiff, that is, Annie to prove that Brett owns a duty of care against her and it is because the breach of such duty of care that she has sustained damages and thus, Brett is negligent in his actions. The main elements that are required are: Duty of care Breach of duty of care Damages The legal principles governing the law of negligence are now student herein under and the same are applied to the facts of the case. Applicable law and its application on the facts Annie and Brett were known to each other as they used to study in the same Business law and Ethics class. Annie used to like Brett and Brett is more interested in her friend, Candice. Brett is working in Tavern. Annie decided to celebrate her birthday at Tavern on the expectation that Brett will be on duty and in fact he was on the duty on the said night. On the night of the birthday, Annie suffered serious injuries by slipping at tavern. She now intends to sue Brett as she believes that Brett is negligent in is actions in law and he must compensate Annie. Annie can only hold Brett liable under the law of negligence once she establishes all the elements of negligence against Brett. The law of negligence The law of negligence is one of the very important tortuous law that is prevalent in all the countries of the world. The basic principle upon which the law of negligence evolves is that every defaulter must make good to the loss that is sustained by any aggrieved party because of his actions or inactions.[1] The law of negligence was evolved for the first time in the leading case Donoghue v Stevenson[2]. It is in the leading case in which Lord Atkin has established the concept of negligence upon a manufacturer and the consumer. It was held by him that every manufacture owns a duty of care towards his consumer and he must supply products of such nature which does not result in any kind of injuryto the consumers. If harm is sustained then the manufacturer must compensate the consumer.[3] This principle is later extended generally to all the activities. Thus, to hold the defendant under the law of negligence, it is important that the dependant must own a duty of care towards the plaintiff and there must be violation of duty. The violation must result in causing harm to plaintiff. It is then the defendant has an obligation to make good the loss that is suffered by the plaintiff. Thus, Annie must prove that Brett was negligent in his actions to claim the compensation for her losses. The main essentials that are required to prove in order to hold any defendant liable in negligence are: Duty of care To prove negligence on the part of the defendant, the plaintiff must prove that the defendant is under a legal obligation to provide care. The duty submits that the actions or inactions of the defendant must be such so that no loss is caused to any plaintiff. In Shaw v Thomas[4], every occupier of the building owns a duty against the person visiting the premises and must carry out his actions so that no injury is caused to him.[5] Thus, Annie should first prove that Brett owns duty of care against her. This is because Brett was the manager of Tavern on the night when Annie suffered injuries. Brett was the in-charge of the premises and thus it becomes his paramount duty to protect and provide an environment that must not cause any harm to his invitees. However, Brett can only be imposed with the duty of care when there are two factors which are comply with. Neighborhood principle In negligence, the defendant is answerable only against such plaintiffs who are the neighbours of the defendant. The principle of neighbourhood signifies that the plaintiff and the defendant are so connected with each other that the acts and omissions of the defendant fall directly upon the plaintiff. There is proximity amid the two. In such situation, the defendant owns a duty of care and is held in Annetts v Australian Stations Pty Limited[6].[7] In the leading case of Wyong Shire Council v Shirt[8], the court established that every occupier of the building is imposed with an obligation to provide care to the entrants mainly because the entrants hold a proximate relationship with the occupier of the premises and the occupier must make sure that no injury should be caused to any of the entrants.[9] It is submitted that Brett is the occupier of Tavern when the incident took place. Annie is the entrant in the Premises. So, as per the principle laid down in Wyong Shire Council v Shirt, Brett and Annie are in proximate relationship and Brett must make sure that no injury is caused to Annie because of his non-compliance of hid duty. Reasonable forseeability principle Also, the duty of care can only be imposed upon the defendant if the impact that might occur after the conduct of the defendant is rationally predictable. It was held in Romeo v Conservation Commission of the Northern Territory[10] that if the defendant is aware about the results of his acts with reasonable forseeability, then, he is under duty to prove care to the plaintiff against such effects.[11] In the leading case of Cunningham v Reading FC[12], it was held that if the occupier of the premises can reasonably foresee that impact of his actions upon the plaintiff, then, it is his duty to avoid such acts so that no harm is caused to the plaintiff. Now, At around 11: 00, Brett was informed by his co-worker David that someone was sick near the main door. Brett inquired that whether the main door was cleaned yup which was replied in affirmative by David. However, Brett did not on his own have checked whether the floor was actually cleaned or not. Brett is aware that the floor is slippery and since the mess is in front of the main door, which is the passage where all the entrants are coming and leaving, thus, is a place where the chances of mis-happening is the highest. So, there is an element of resemble forseeability. Thus, Brett can reasonably foresee the damages and the injuries which might take place to the entrants, including Annie. However, still no efforts are made by him to protect the entrants from the injury. Thus, there is presence of principle of neighbourhood and reasonable forseeability, thus, Brett owns a duty of care against all the entrants including Annie. Breach of duty of care The obligation of care when is not met by the defendant then the duty is considered to be breached. However, the duty is said to be breached only when the echelon of concern and precautions that are probable are not comply with. The level of care varies from situation to situation. If the plaintiff against whom the duty of care is to be comply with a child or aged or ill or intoxicated person, then, the duty of care is high otherwise the level is less. If the risk involved is high then the level of care is also high and vice versa and is rightly held in Roe v Minister of Health[13]. In the leading case of Spotless Services Australia Ltd v Herbath anor[14], it was held that the occupier must carry out his duty with adequate level of care in order to avoid any kind of breach. Now, it is established that Brett owns a duty of care against Annie. But, this duty is not comply with as Brett is aware that there is mess around the front door. David even submitted that the mess was an awful mess. However, still, Brett was not diligent enough to check whether the mess was cleared or not. He was too busy to serve Candice. Brett was aware that almost every person in Tavern was intoxicated. Thus, he has a greater duty to provide care to the entrants. He must be diligent enough to check the entrance as the chances of injury to be incurred is very high as there is continuous flow of movement at the entrance. However, this echelon of heed that is desired from Brett was not complying with resulting in clear breach of duty. Damages Once the obligation of protection is not comply with, then, to grasp the defendant for negligence, t is required that there is some thrashing that might have caused to the plaintiff. The loss can be mentally or physically, but, there has to be some kind of loss that must be sustained by the plaintiff and is held in Allied Maples v Simmons Simmons[15].[16] Now, the duty of care is established upon Brett which is breached by him. Because of the breach of duty, Annie has sustained a fracture to her lower back and will need surgery. She will have to lie in bed for some months in order to recover. Shell have to give up her part-time job at Safeway for at least six months. But, Brett will only be held liable for such damages provided there is: Causation The loss/ damage which is sustain to the plaintiff is caused unswervingly because of the breach of duty of the defendant, thus, there must be presence of e element of causation and is held in Baker v Willoughby[17]. Since Brett was in breach of his duty and it is because of his breach that Annie has suffered injuries, thus, there are elements of causation. If Brett would have complied with his duty, the loss could have been avoided. Remoteness Further, the damages sustained to the plaintiff can be anticipated by the defendant reasonably. The loss must not be too remote to predict. Thus, remoteness is one of the elements to prove negligence on the part of the defendant and is held in Humber oil terminals trustee ltd v harbour and general works(stevin) ltd.[18] Now, Brett is aware that there is mess at the entrance of the building. He is also aware that the mess was too much as described by David. Thus, he is also aware that if any person will slip on the mess then the chances are there that someone might be injured. Thus, the damage that might be caused because of the mess was not remote and can be easily predictable by Brett. So there is element of predictability that is present. It is thus submitted that Brett was imposed with the duty of care against Annie, as Annie was her neighbor and the impact of the acts and omission of Brett was reasonably foreseeable by Brett. This duty of care is not comply with by Brett as no adequate level of care is undertaken by him. Because of the breach of duty of care Annie has sustained injuries. Thus, all the three elements of negligence are established and Brett can be held liable under the law of negligence. Defense - contributory negligence At times the defendant can take a defense of contributory negligence in order to protect himself. It has to be proved that that the loss/damage sustained to the plaintiff is not by the fault of the defendant only, that the plaintiff has also contributed his own loss by acting in adverse manner and thus the liability of the defendant can be proportionately reduced to the extent the plaintiff has contributed to his own loss. Brett can rely on the fact that Annie was wearing too much heals and that could be the reason for the aggravation of her injuries. The heal broke which further aggravated the injury caused to Annie. Thus, Brett can claim to reduce his liabilities proportionality. Decision and Remarks Thus, Brett was imposed with the duty of care which is not catered by him resulting in causing loss to Annie. But, Brett can prove that the loss that is caused is because of the contribution on the part of Annie and thus claim the defence of contributory negligence. Annie must bring an action of negligence against Brett wherein she will succeed in her action. But, Brett can also claim demesne of contributory negligence. References Books/Articles/Journals Beever, Allan , Rediscovering the Law of Negligence, (Bloomsbury Publishing, 2007). Gibson, A and Fraser, D, Business Law 2014, (Pearson Higher Education AU, 2013) Norman, Katter, Who then in law is my neighbour? - Reverting to First Principles in the High Court of Australia, (The Tort Law Review, 2004). Case laws Annetts v Australian Stations Pty Limited (2002) 76 ALJR 1348. Allied Maples v Simmons Simmons[1995]. Baker v Willoughby[1970] AC 467 Cunningham v Reading FC (1991). Donoghue v Stevenson (1932). Humber oil terminals trustee ltd v harbour and general works(stevin) ltd. (1992) 59 blr 1 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431. Roe v Minister of Health[1954] 2 WLR 915 Shaw v Thomas[2010] NSWCA 169. Spotless Services Australia Ltd v Herbath anor (2009) 26 VR 373. Wyong Shire Council v Shirt- [1980] HCA 12. Online Material Souper, M, The Sixth Law form (2008) https://sixthformlaw.info/02_cases/mod3a/aqa/_cases_tort_3damage.htm. Hubbard, S, Australia: Nature of duty of care owed by occupiers of domestic premises to ten year old boy who fell whilst descending from top bunk of bed s 5B Civil Liability Act, 2010, https://www.mondaq.com/australia/x/107024