Fundamentals of Common Law
Assignment 1
Legal Studies – GSB748
Due on: 20/03/2011 University of New England Victor M. Ayala Lancheros Student # 220070594 Word Count: 2,719
GSB748 – Legal Studies
Student # 220070594
1. The Case of Tommy v Spud 1.1 Advice to Tommy 1.1.1 Duty of Care In this case, the “neighbour principle” of Lord Atkin and the test of proximity of relationship of the High Court is applicable (Turner 2011:738). The parties have a special relationship based on physical proximity and causal proximity: Donogue v Stevenson [1932] AC 562 and Jaensch v Coffey (1984) 155 CLR 549. The loss or damage was “reasonable foreseeable”. This is substantiated by the fact that Spud warned Tommy of the herbicide spraying one day before it took place, this clearly demonstrates that for Spud the damage was foreseeable: Crimmins v Stevedoring Industry Finance Committe (1999) 200 CLR 1. In addition, there is no indeterminancy of liability that is the liability can be determined as well as the time and class, and the conduct adopted by Spud does not legitimately protect his business or social interests. Furthermore, the fact that Tommy is an organic farmer places him under significant vulnerability from Spud’s and Red Baron’s actions with no obvious measures that Tommy could have taken to prevent the damage: Perre v Apand Pty Ltd (1999) 198 CLR 180 and Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 80.
Assignment 1
Page 2 of 16
GSB748 – Legal Studies
Student # 220070594
In summary, Spud and Red Baron owed Tommy a duty of care in regards to herbicide spraying. 1.1.2 Breach of the Duty of Care The risk was “significant” as the probability of materialising was high and a reasonable person would not have neglected the risk, particularly with the wind blowing as strong as it did on the day the facts took place: Bolton v Stone [1951] AC 850. The magnitude of the risk to Tommy as an organic farmer warranted greater precautions from Spud and Red Baron as
Legal Studies – GSB748
Due on: 20/03/2011 University of New England Victor M. Ayala Lancheros Student # 220070594 Word Count: 2,719
GSB748 – Legal Studies
Student # 220070594
1. The Case of Tommy v Spud 1.1 Advice to Tommy 1.1.1 Duty of Care In this case, the “neighbour principle” of Lord Atkin and the test of proximity of relationship of the High Court is applicable (Turner 2011:738). The parties have a special relationship based on physical proximity and causal proximity: Donogue v Stevenson [1932] AC 562 and Jaensch v Coffey (1984) 155 CLR 549. The loss or damage was “reasonable foreseeable”. This is substantiated by the fact that Spud warned Tommy of the herbicide spraying one day before it took place, this clearly demonstrates that for Spud the damage was foreseeable: Crimmins v Stevedoring Industry Finance Committe (1999) 200 CLR 1. In addition, there is no indeterminancy of liability that is the liability can be determined as well as the time and class, and the conduct adopted by Spud does not legitimately protect his business or social interests. Furthermore, the fact that Tommy is an organic farmer places him under significant vulnerability from Spud’s and Red Baron’s actions with no obvious measures that Tommy could have taken to prevent the damage: Perre v Apand Pty Ltd (1999) 198 CLR 180 and Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 80.
Assignment 1
Page 2 of 16
GSB748 – Legal Studies
Student # 220070594
In summary, Spud and Red Baron owed Tommy a duty of care in regards to herbicide spraying. 1.1.2 Breach of the Duty of Care The risk was “significant” as the probability of materialising was high and a reasonable person would not have neglected the risk, particularly with the wind blowing as strong as it did on the day the facts took place: Bolton v Stone [1951] AC 850. The magnitude of the risk to Tommy as an organic farmer warranted greater precautions from Spud and Red Baron as
References: Civil Liability Act 2002 (NSW), Retrieved on 19 February 2011 from http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161.txt Defamation Act 2005 (NSW), Retrieved on 25 February 2011 from http://www.austlii.edu.au/au/legis/nsw/consol_act/da200599.txt Gibson, A. 2005, Commercial Law in Principle, Thomson Lawbook Co., Sydney. Jackman, B., Phillps, A., Greaney, J., Lee, K. &Irwin, A. 2011, GSB 748 – Legal Studies, Graduate School of Business, University of New England, Armidale. Turner, C. 2011, Australian Commercial Law, Thomson Reuters, Sydney. Assignment 1 Page 16 of 16