Principles Of Commercial Law for Legal Problems - MyAssignmenthelp

Question: Write about thePrinciples Of Commercial Law for Legal Problems. Answer: Introduction: After pursuing the facts of this scenario, the issue arises if Ruth will be successful if she brings claiming negligence against Keith. Ruth is willing to take action againt Keith in negligence. Keith was negligent when instead of using hardwood; he used leftover untreated chipboard to replace the rotten timber trade on the stairs. Therefore, it has to be seen if roads will be successful in establishing that Keith's actions fell below the standard of care. That should have been applied. Analysis: In order to decide the issue in the present case, the principles related with the law of negligence need to be applied. First of all, the term negligence in itself has to be defined. Therefore in the present context, negligence is the action of the person where the person owed a duty of care and due to the breach of this duty; the other person has suffered a loss or injury (Hepple, 1997). Similarly, the relevant statutory provisions have been mentioned in the Civil Liability Act that need to be applied for the purpose of deciding if the person can be held negligible and also the liability of the person that arises as a result of the negligent acts. Under the law of negligence, when one person sues the other in negligence, such person wants to recover financial compensation for the damage. The reason is that in such cases, the person suffering the loss wants that equity he or she should be put in the same position where such person would have been if the negligence of the ot her person would not have taken place. In order to deal with the person if under the circumstances, person as liability in negligence, there are four questions that need to be considered. Hence, for this purpose, it has to be considered if the defendant had a duty of care towards the plaintiff. Another requirement is that the plaintiff should have suffered an injury or loss caused by such breach of duty (Deakin, Johnston and Markesinis, 2003). The injuries suffered by the plaintiff should be directly caused by the breach of duty. In this way, all these factors need to be present so that it can be held that the defendant was liable in negligence. Therefore even if one of these elements is not present, the action brought by the plaintiff to claim compensation could not succeed as in such a case, the liability of the defendant cannot be established. For this purpose, the duty of care has been defined by the law as the legal obligation according to which the defendant should not act in such a way that may result in harm to th e other persons. Such a duty is present when it can be reasonably foreseen that the other person is going to suffer harm if the defendant does not act reasonably carefully (Kujinga, 2009). Another requirement in this regard is that there should be sufficient proximity between the parties so that it can be claimed that the beauty of care was present on part of the defendant. An example of such a relationship can be given in the form of the relationship that exists between doctor and patient or the relationship between drivers of vehicles and other persons the road. The Civil Liability Act has imposed some qualifications on the duty of care, for example good Samaritans and food donors. According to the law, when a person is acting in an emergency situation and without expecting money in return or when a person is providing food for charity, generally such persons are exempt from liability if they were not negligent in their actions. The breach of duty of care: In order to decide if the defendant can be held liable for the breach of duty of care, the court is required to consider the standard of care that applies in a particular case. In this context, the relevant standard of care can be decided by considering what any other reasonable person would have done in the same situation. Hence, if the actions of the defendant can be termed as unreasonable or if these actions were below the standard of care that is applicable in the case, a conclusion can be made that the defendant had breached the duty of care (Tomasic, Bottomley and McQueen, 2002). The breach of duty of care can be claimed by the plaintiff if it can be established that the defendant was aware or ought to be aware of the risk. This factor is also called reasonable foreseeability. In the same way, it is also required for this purpose that the reason should not be unimportant and therefore, precautions would have been taken by any reasonable person in ord er to avoid harm caused by such risk. It is required in such cases that the risk should not be insignificant. This is the amendment that has been made by the Civil Liability Act. The effect of these changes is that the bar related with reasonableness has been raised. Therefore, now it is not only necessary that the harm that has been caused to the plaintiff should be reasonably foreseeable, at the same time it is also necessary that the risk of harm should not be insignificant (Gardiner and McGlone, 1998). But at the same time, it also needs to be mentioned this to the standards are not very clear and therefore the courts give their decision on the basis of the facts of each case. Similarly the precautions that can be reasonably expected to be taken in the case also depend on the facts of each case. As a result, the facts that would have been considered by any other reasonable individual while deciding if precautions should be taken against the risk. Also present in the statute. In this regard, another factor that should be considered is the likely seriousness of harm along with the burden that may be created as a result of taking these precautions to avoid the harm and on the other hand, the likely benefits of the activity as a result of which such harm was created (McDonald, 2005). Reasonable foreseeability: When the court is deciding if knew or ought to know regarding the risks, the principles that have been mentioned by the court in Donaghue v Stevenson (1932) can be applied. The plaintiff in this case had found the remains of a decomposed snail in ginger beer bottle. In this case, the importance of foreseeability of injury has been sufficiently highlighted due to which the plaintiff has suffered a harm on account of the defendant's conduct or the lack of action. Therefore it can be stated that under the Civil Liability Act also, it is necessary that the negligence should be present as a result of which, harm was created. Another requirement is that the harm that has been caused to the claimant needs to be within the scope of defendant's liability. In order to deal with this issue, it needs to be seen if a connection is present between the alleged negligence of the defendant and the harm caused to the plaintiff. But this is a question of fact and as a result, needs to be decided individually in each case. It'll also be stated that causation requires that "but for the defendant's actions, the plaintiff would not have suffered the harm". Consequently, it is also called the 'but-for' tests. However, the civil liability act has changed the words of this test. Now it is mentioned that cause is one of the elements that are necessary for the harm. In this context, a question can be asked under the law if foreseeability can be considered as appropriate to widen the scope of liability of a person who has caused a breach of duty and as a result. The other party has suffered a harm. For this purpose, the law also considers the policy issues that may exist. Hence, it needs to be considered if any reason is present due to which it can be said that the defendant was not liable. Commonwealth v Verwayen [1990] HCA 39 can be considered as an example of a situation where the court was of the opinion that the duty of care has been breached by the Commonwealth. In this case, as a result of negligence the ship sank. Even if it was held that the Commonwealth was responsible for this accident however, action was initiated by the plaintiff for the lung and liver cancer that ensued every smoking and drinking by the plaintiff. All this started after the plaintiff suffered the accident. In the past, this issue has been considered by the courts in terms of remoteness and proximity. An 'intervening cause'is also a relevant factor in this regard. However, the Civil Liability Act deals with this issue in terms of policy reasons. Therefore in such a case it needs to be considered if it will be appropriate if only one party is held responsible for the consequences of a particular event when an intervening factor is also present, for example, the choice made by the person hims elf. In such cases, it has to be seen if the risk was not insignificant. While in most cases, it can be clearly stated that there has been a breach of duty. The Civil Liability Act provides that the relevant standard while finding if a breach of duty has taken place is to see if the risk of harm was not insignificant. But in this regard, it is not clear how much further a not insignificant risk can go beyond reasonable foreseeability. Therefore the courts have to deal with this question by considering the facts of each case. Apologies: the law provides that when a person has made an apology concerning the harm that is alleged to be caused by such a person, the apology cannot be considered as the express or implied admission of liability. In the same way, the law also provides that such apology cannot be considered as relevant while deciding if the person was liable for such matter or not. As a result, when civil proceedings are going on between the parties, evidence regarding apology cannot be considered to be the evidence of the fact that such person is liable. In this context, apology is the expression of sympathy and regret or you can be described as the general feeling of benevolence regardless of the fact that there is any admission of guilt or not. Similarly, it also needs to be considered in this case if there is contributory negligence present in this case. A particular plaintiff can be considered to have contributed the negligence when the plaintiff had also participated in the injuries suffered by it. Consequently, when the claimant had not exercised the required care regarding its own safety, the law provides that in such a case it can be held by the court that the plaintiff had also contributed in negligence. In this case, it can be concluded that Keith was liable for the injuries caused to Ruth. This can be stated due to the reason that Keith did not have the necessary qualifications. Moreover, he had used leftover chipboard where he should have used the hardwood. Therefore, when Ruth was walking downstairs, she could not see that the tread was missing because at that time she was getting several feeding dishes. In this case, it can be said that Ruth can claim compensation from Keith as he has suffered serious injuries as a result of the negligence of Keith. However, the amount that may be awarded by the court as compensation to Ruth can be reduced as a result of the fact that Ruth has also contributed in negligence when she failed to see that the tread was missing. In the same way the apology of Keith cannot be presented as evidence regarding the liability of Keith. References Bob Hepple, (1997) Negligence: The Search for Coherence 50 Current Legal Problems 69 David Gardiner and Frances McGlone, (1998) Outline of Torts (2nd ed,), Butterworths Deakin, S., Johnston A and Markesinis B (2003) Markesinis and Deakin's Tort Law, Oxford University Press Kujinga, Benjamin (2009). "Reasonable Care And Skill The Modern Scope Of The Auditor's Duty". GAA Accounting McDonald, Barbara (2005). "Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia". Sydney Law Review. 27 (3) Tomasic, Roman; Bottomley, Stephen; McQueen, Rob (2002) Audits and Auditors, Corporations Law in Australia, Federation Press