Commercial Law Development of Law Negligence

Question: Describe about the Commercial Law for Development of Law Negligence. Answer: Relevant Issue The main issue that is raised is whether Michelle is liable to Rebecca under the law of negligence for injuries caused to her due to acts of Michelle? Can Michelle take defense to save himself from liabilities? Relevant Law The issue raised is related to the law of negligence. s per the law of negligence a person is liable provided he conducts an act carelessly which in turns results in injury to the injured. Thus, every person must act in such manner so that no injury is caused to any person in order to avoid liability under the law of negligence. Basically, when the duty of care imposed upon a wrongdoer is breached and due to such breach injury is sustained by the plaintiff, then, such wrongdoer is considered to be negligent. The case of Donohue v Stevenson (1932) lead to the development of the law of negligence. (Negligence 2016) A wrongdoer can only be held negligent when: There is a duty of care which is imposed upon him. Duty of care signifies that the wrongdoer is under an obligation to act in such a way so that he does not cause any injury to his neighbor. A neighbor is a person who is in close proximity to the wrongdoer and the impact of the wrongdoer actions directly falls upon the plaintiff (D v East Berkshire Community NHS Trust and others (2003). When the duty imposed upon the wrongdoer is not taken care of by him then the duty of care is said to be breached. The duty is said to be breached when the breach is reasonably foreseeable and the reasonable care which would had been taken by the wrongdoer is not taken by him. It is the degree of risk that determines the level of care, for instance, higher risk requires higher care and vice-versa (Jackson v McDonald's Australia(2014). (Sparkes 2014) Injury to the injured must be due to the breach of duty of care by the wrongdoer. If the same is not the cause of injury to the injured then the wrongdoer cannot be held liable under the law of negligence. There must be proximity between the act and the damage caused then only the sufferer can claim under this law. In the absence of any of the above said elements the person cannot be held liable under the law of negligence. However, there are certain defenses that can be taken by the wrongdoer to protect himself: Volenti non fit injuria is a principal according to which when the injured in spite of knowing the future risk assents to it and gets injured then the injured cannot claim anything from the wrongdoer (Cummings v Grainger (1977). Contributory negligence takes place when the injury is caused to the injured is due to his wrong and wrong on the part of the wrongdoer, then the liability of the wrongdoer is accordingly subtracted and thus the liability is apportioned between the wrongdoer and the injured due to the negligence on the part of injured also. Further, in case of driving of vehicles, the driver has the responsibility towards all his neighbors and he must drive in such away so that no injury is caused to any third person. In case of Drink and Drive, the liability under law of negligence is fastened upon the driver who drives after drinking and thus he is duty bound to protect all the neighbors and be extra cautious as he is drunken state and is held in Manley v Alexander (2005). A driver who is drunk has the duty to protect the persons who are in close proximity to him and thus if he breaches his duty then he is liable as per law of negligence and is held in North v TNT Express (2001). In case of Allen v Chadwick(2015) the passenger knew that the driver was intoxicated and thus travelled with him then in that case the court held that it is a case of contributory negligence on the part of passenger as he knew the driver was drunk then also he chose to travel with him. But the defense of contributory negligible can be waived if the passenger was not in a position to avoid the risk. (Legal Vision 2016) Application of Law Michelle drove the vehicle while intoxicated and Rebecca accompanied her. Rebecca in spite of knowing the fact that Michelle is drunk sat in the car with Michelle. Michelle was driving which imposes a duty upon Michelle to take care of all the neighbors who came across the car and Michelle was drunk so the level of duty of care imposed upon Michelle thus enhanced. However, he drove and crashed the car and thus Rebecca suffered injuries along with broken leg. Thus, the duty upon Michelle was violated by him causing harm to Rebecca. Thus, Michelle is negligent. But as Rebecca knew that Michelle was intoxicated so Rebecca also contributed to negligence. But Rebecca tried twice to come out of the car but was not able to and the car crashed, so in instant case as Rebecca chose to get out of the car but was not able to by Michelle so Michelle will not be able to take defense of contributory negligence. Conclusion Thus, Rebecca can claim for Michelle negligence and thus the plea of Michelle to reduce liability on account of contributory negligence will not work. Reference List Negligence (2016) https://www.web.uwa.edu.au/__data/assets/pdf_file/0008/1838186/Example_Development-of-law-negligence.pdf. [Viewed on 12th September 2016] The law Teacher (2016) neighborhood principle https://www.lawteacher.net/free-law-essays/tort-law/neighbour-principle.php. [Viewed on 12th September 2016] Sparkes L (2014) Duty of Care, Breach of Duty, and Causation: The Negligence Value Meal - Jackson v McDonald's Australia [2014] NSWCA 162 https://casenotes.curwoods.com.au/?p=2853. [Viewed on 12th September 2016] Case law Allen v Chadwick(2015). Cummings v Grainger (1977). Donohue v Stevenson (1932). D v East Berkshire Community NHS Trust and others (2003). Manley v Alexander (2005). North v TNT Express (2001). Jackson v McDonald's Australia(2014)