Comercial Law

Case study

Question 1:

Issue

The key issues would be whether Willow Council has negligence in the damage of John.

Rules

Firstly, negligence refers to something a reasonable should do but failure to do (Doubleday & v Kelly [2005] NSWCA 151). The premise that negligence exists is there should be a duty of care. Meanwhile, negligence uses the concept of “reasonable”, which means law would not require people to do something which is not foreseeable. People only should be liable to consequence that has been foreseen by them, or it would too strict to the duty of care. In common law, one principle is that law would not constrain somebody to do things that are beyond their power.

Secondly, negligence includes three elements, involving duty of care, breaching the duty and damage caused by the breaching of the duty. In the case of negligence, the elements are necessary, or the plaintiff failures to establish on the balance of probabilities. Donoghue v Stevenson first formulated the concept of duty of care. “The neighbor test” is generally used in examining whether there is a duty of care. Neighbor is any person who is so closely and directly affected by what you do that you ought reasonably to have them in contemplation as being so affected when you are directing mind to the acts or omissions, which are called in question (Donoghue v. Stevenson [1932] AC 562 at 580).

Thirdly, the courts in discussing whether a duty of care exists would consider foreseeability, vulnerability and any policy considerations (Feinman, 2010). Foreseeability is the ability of reasonable person; the base is that a reasonable person can predict which act would cause what the consequence is. When foreseeability is met, vulnerability needs to concern controlling position, reliability of the defendant to the defendant and whether the defendant is the position to be protective of the plaintiff.

Fourthly, the reasonable person is someone of normal intelligence, credited...