Civil Liabilities Act 2002 (Nsw)
Question 1
Mary v Peter
Issue
Given that Mary was injured by Peters’ act, is he solely liable for the accident?
Law
* In this case, we have to look at the Civil Liability Act 2002 (NSW) to determine who was negligent and in specific, we use s 5B(1), s 5B(2) and s 5R of the Civil Liability Act 2002 (NSW); s 5B(1) for the reasonable foreseeability test, s 5B(2) for determining if the standard of reasonable care has been breached and s 5R for contributory negligence. * Where both the parties seem to have been negligent, it is important to determine who is more at fault and for this purpose we need to use the ‘but for’ test as in the case of Cork v Kirby Maclean [1952] 2 ALL ER 402. * The application of s 5R of the Civil Liability Act 2002 (NSW) can be seen from the case Mak Woon King v Wong Chiu [2000] 2 HKLRD 295.
Application
Applying the three essentials of negligence to find out if Peter has been negligent: 1) Peter Owed Mary a duty of care as he is supposed to care for all other road users 2) Peter breached the standard of care of a reasonable person, as a reasonable person would not be negligent while driving and would not change his CD 3) Due to Peter’s negligent harm was caused to Mary
Peter, as a reasonable person, should have foreseen that any negligence from his side as a road user would cause harm to other road users and he clearly violated the s 5B(1) of Civil Liability Act 2002 (NSW) by being negligent and not foreseeing the implications of his actions on other road users.
He has also violated s 5B(2) of Civil Liability Act 2002 (NSW); * the likelihood of the defendant’s actions causing harm was really high; * the seriousness that the harm would occur is also high; * the social utility if the defendant’s conduct is also very important as by being diligent, the defendant would not be causing any type of harm to his own as well as the lives of other road users and; * the cost and effort that would have
Mary v Peter
Issue
Given that Mary was injured by Peters’ act, is he solely liable for the accident?
Law
* In this case, we have to look at the Civil Liability Act 2002 (NSW) to determine who was negligent and in specific, we use s 5B(1), s 5B(2) and s 5R of the Civil Liability Act 2002 (NSW); s 5B(1) for the reasonable foreseeability test, s 5B(2) for determining if the standard of reasonable care has been breached and s 5R for contributory negligence. * Where both the parties seem to have been negligent, it is important to determine who is more at fault and for this purpose we need to use the ‘but for’ test as in the case of Cork v Kirby Maclean [1952] 2 ALL ER 402. * The application of s 5R of the Civil Liability Act 2002 (NSW) can be seen from the case Mak Woon King v Wong Chiu [2000] 2 HKLRD 295.
Application
Applying the three essentials of negligence to find out if Peter has been negligent: 1) Peter Owed Mary a duty of care as he is supposed to care for all other road users 2) Peter breached the standard of care of a reasonable person, as a reasonable person would not be negligent while driving and would not change his CD 3) Due to Peter’s negligent harm was caused to Mary
Peter, as a reasonable person, should have foreseen that any negligence from his side as a road user would cause harm to other road users and he clearly violated the s 5B(1) of Civil Liability Act 2002 (NSW) by being negligent and not foreseeing the implications of his actions on other road users.
He has also violated s 5B(2) of Civil Liability Act 2002 (NSW); * the likelihood of the defendant’s actions causing harm was really high; * the seriousness that the harm would occur is also high; * the social utility if the defendant’s conduct is also very important as by being diligent, the defendant would not be causing any type of harm to his own as well as the lives of other road users and; * the cost and effort that would have
Bibliography: Perre v Apand (1999) 198 CLR 180. Ultramares Corp v Touche, Niven & Co 174 NE 441 (1931). Textbook; Harvey, C and Mesiti, V (2009)