Case Study Negligent V.

2.1 (a) In the decision of District Court of New South Wales, Appellant (Ms Derrick) owed the Respondent (Rosannie Cheung) a duty of care, as she was driving at such a speed that it was beyond her ability to stop the car in time and notice that a child which suddenly darted from one of the parked cars. In addition, nearby shops and houses combined with the date, Saturday morning shortly before Christmas, should have alerted Ms Derrick that small children might be playing around, so she needed to pay extra attention in that circumstance. However, in the decision of the High Court of Australia, it pronounced the judgment that “No negligence on the part of the appellant was established.” The fact, Rosannie Cheung struck by the car, is unavoidable. Ms Derrick’s was driving within the prescribed speed limit, which was 45 to 50 Kilometers per hour. It was impossible to stop timely to avoid the accident, so she did not owe Rosannie Cheung a duty of care.
(b) In the decision of District
Court of New South Wales, Appellant (Ms Derrick) breached her duty of care, because Ms Derrick stated that she “look straight ahead” while driving, and in the cross examination shows that she would have sufficient time to stop in an emergency if her speed was 10 to 15 km per hour lower than the prevailing speed limit. Therefore, her view of the left was not clear enough to notice people who come from left side. However, in the decision of the High court, Ms derrick did not breach her duty of care. She was traveling between 40 and 50 km per hour within an area where speed limit was 60 km per hour. Therefore, she was driving normally and it is people’s right to drive normally on the street. Moreover, an infant suddenly darts from two parked cars is not foreseeable. Thus, according to the principle of foresee-ability, Ms Derrick did not breach her duty of care.

2.2 (a) Relating to the law of negligence, Mr Graham owed Mrs Hall a duty of care. As the facts list in the supreme court of New South Wales Court of Appeal, Mr Graham signed his name under an attestation clause that recorded that the mortgage was “signed in my presence by the Mortgagor who is personally know to me.” However, he did not know Mr and Mrs Hall at all, and he was not in his presence when this mortgage was signed. Therefore, Mr Graham failed to find out the signature was forged. In regard to causation, the judge of New South Wales Court of Appeal said that had Mr Graham “complied with his oath of office and been otherwise truthful as a witness, the Situation Mrs Hall currently faces would not have arisen. “ That is to say, this negligence of Mr Graham has material causal potency to Mrs Hall’s lost, so Mr Graham owed Mrs Hall a duty of care.

(b) The standard of care expected of Mr Graham could be defined by whether the risk of his behavior that may harm to Mrs Hall’s interest as joint owner is foreseeable. According to paragraph 52 of Judgment of New South Wales Court of Appeal in this case, “Just as the solicitor was not Known to the intended beneficiary and had no dealing with her, Mrs Hall had no knowledge of the existence of Mr Graham, having had no dealings with him. Just as the intended beneficiary was ignorant of the action s of the solicitor at the time the will was executed, so was Mrs Hall ignorant of the actions of Mr Graham until the death of Mr Hall.” It is clear that Mr Graham owed Mrs Hall a duty of care in the attestation of the commercial document, he purported to attest the signature on the mortgage as a justice of the peace. He should have double check the document provided by Mr Gelin, acted professionally as an witness.

(c) Mr Graham breached the duty of care he owed Mrs Hall.
The three possible scenarios postulated by counsel for Mrs Hall at the trial are the following “(i) The documents were presented, already signed, to Mr Graham and he witnessed them then. (ii) Mr Hall wrote Mrs Hall’s signature on the document in Mr Graham’s presence. (iii) A person purporting to be Mrs Hall signed the documents in Mr Graham’s presence.” As a witness, Mr Graham signed the documents without attestation. Although Mr Gelin did not investigate whether Mrs Hall was dying of cancer that could not sign the documents on the spot, Mr Graham still should have able to raise reasonable doubt that was there any medical certificate for Mrs Hall’s absence or other evidence that could prove the mortgage is her will which unimpeded express her comprehensive real meaning. In addition, there was no statutory or other need for him to sign the mortgage. He did that completely under his own volition. Therefore, he breached his duty of
care.
(e) There could be appeal from the decision in Graham v Hall. Section 73(ii) of the Constitution gives the High Court of Australia jurisdiction to hear and determine appeals from all judgments, orders and sentences of the Supreme Court of any State. Accordingly, Mr Graham may appeal this case to the High Court. There is no automatic right to have an appeal heard by the High Court. Parties who wish to appeal must persuade the Court in a preliminary hearing that there are special reasons to cause the appeal to be heard. According to Rules of Court, to appeal to the High Court of Australia, legal practitioners must comply with in preparing a case for hearing, including the preparation of an Appeal Book. The Appeal Book prepared by the appellant's legal practitioner, contains basic documentation which is necessary background for the Court to consider the issue raised by the appeal.