Commercial Law Negligence and Claim

Question: Describe about the Commercial Law for Negligence and Claim. Answer: Issue Taking into consideration the facts relating to the situation, offer advice to Rebecca as to whether she would be successful in her negligence claim. Rule In order to prove negligence and claim damages, the plaintiff needs to ensure that the three conditions highlighted below are satisfied (Lindgren, 2011). There is a duty to care on behalf of the defendant directed towards the plaintiff. This duty of care has been breached due to the negligent conduct of the defendant. As a result of this breach, the plaintiff suffers damage Duty to Care The commonly used test to opine on whether the defendant is bound by the duty to care is Neighbor test This test advocates that neighbor is any entity which may suffer damage on account of the choices made by the activity doer in event of going ahead or refraining from doing the same(Gibson Fraser, 2014). This has been advocated in the case discussion of Donoghue v. Stevenson [1932] AC 562 at 580 case. In the context of ascertaining neighbour, the purview of damage is fairly wide and includes harm that may be intangible such as mention and emotional sufferings. It is noteworthy that the duty to care extends to prevention of only that harm which is possibly foreseeable and harm that is highly unlikely is not bound by the duty to care (Davenport Parker, 2014). Breach of duty The defendant in order to discharge the responsibility of duty to care must take measures that are reasonable so as to protect the neighbor from damage due to the causes that are foreseeable. The taking of reasonable measures by the defendant effectively amounts to the discharge of the duty (Harvey, 2009). It is imperative that the care nature and intensity is driven by the nature and intensity of the risk present in a situation. If measures expected reasonable are not undertaken, then it implies that there has been a breach in the duty to care. However, any damage sustained by the neighbor despite the duty being discharged does not amount to negligence (Pendleton Vickery, 2005). Harm/Damages For negligence to be established, it is required that the breach of duty on the part of the defendant must be linked to the damage incurred on the part of the plaintiff. In order to ascertain the same, it needs to be established that the damage caused was preventable provided that defendant did not breach the duty of care. Besides, the damages suffered by the plaintiff are wide in scope and besides monetary loss and physical injury includes inconvenience and torture (mental and emotional) (Latimer, 2005). Further, it may be possible in select cases that harm caused is not linked to the breach of duty even though breach of duty has taken place. In such cases negligence is deemed to be not established. There are certain remedies which the defendant may avail to reduce the overall liability on account of negligence (Gibson Fraser, 2014). Defence Available Partial or complete relief in terms of tort liability may be available to defendant on deployment of defence strategies. A particular defence that is of use in the situation presented is the with regards to assumption of voluntary risk (Lindgren, 2011). In accordance with this, if the plaintiff willingly makes the choice of being present in a situation where risk is present, then if damages are incurred, it is imperative that some portion of the negligence should be attributed to the plaintiff as well for taking the incorrect choice of indulging in a risky situation. Therefore, since both defendant and plaintiff act in a negligent manner, hence the liability is shared between the two based on the exact circumstances (Harvey, 2009). Application The given situation involves two individuals Rebecca and Michelle who have gone to see a performance but due to delay in the performance, both end up getting drunk. By the time the performance ended, it was apparent to Rebecca that Michelle was not in her senses and due to alcohol consumption, going home with her would be highly risky. But, Rebecca chose to ignore these fears and made the choice that she would go with Michelle. Michelle drove the car dangerously and therefore Rebecca told her to pull over so that she could get out. But, Michelle does not listen to these pleas by Rebecca and continues driving till the car finally crashes and Rebecca is injured. As per the case, the driver is Michelle and there is clear duty to care on her part towards all the passengers that may be present in the car since she is incharge of the car. Hence, Rebecca is a neighbour in the given case. Ideally Michelle should not have offered a drive as she was drunk and hence there has been a breach in the duty to care on her part. Also, when Rebecca told her to pull over she still acted negligently and did not stop the car. In the event of Michelle yielding to Rebeccas request of pulling over and also not driving under the influence of alcohol, the injuries to Rebecca would not have happened. Thus, the tort of negligence is established as all conditions are satisfied. But, Michelle could reduce her liability arising from her negligence by citing that Rebecca should have turned down Michelles request as she was appraised of the situation and knew that this is possible. Conclusion Rebecca would be successful in her claim of negligence directed towards Michelle although part of negligence has to be also borne by Rebecca as she voluntarily assumed the risk. References Davenport, S. Parker, D. 2014, Business and Law in Australia 2nd edition, LexisNexis Publications, Sydney Gibson, A Fraser, D 2014, Business Law, 8th edition, Pearson Publications, Sydney Latimer, P 2005, Australian business law, 24th edition, CCH Australia Ltd. Sydney Pendleton, W Vickery, N 2005, Australian business law: principles and applications, 5th edition, Pearson Publications, Sydney Harvey, C. 2009, Foundations of Australian law. 3rd eds., Tilde University Press, Prahran, Victoria Lindgren, KE 2011, Vermeesch and Lindgren's Business Law of Australia, 12th eds., LexisNexis Publications, Sydney Pathinayake, A 2014, Commercial and Corporations Law, 2nd eds., Thomson-Reuters, Sydney