Tort Law
Question 1 [15 marks] Mary has been at a party. She has been drinking heavily and cannot walk properly. She walks home and crosses the road without looking for traffic. Bob is driving his car down the road, he does not see Mary because he is changing a CD in his car. He hits her and injures her, breaking her leg. Because of the delay caused by the traffic accident, another driver, Tom, is stuck in traffic. He is an electrician and because he cannot get to his next repair job of fixing the refrigerators in Sam’s restaurant, Sam has to destroy $ 5 000 worth of meat which goes bad. Advise what legal liabilities arise out of this situation. Cite case authority where relevant.
ISSUES
Is Bob liable to Mary and to what extent?
Does Bob have any defenses?
Is Tom liable to Sam and to what extent?
LAW In this case we are dealing with tort law and more specifically negligence in tort law.
Negligence in tort law requires the plaintiff to prove the following: * The defendant owed a duty to the plaintiff (or a duty to the general public, including the plaintiff); * The defendant violated that duty; * As a result of the defendant 's violation of that duty, the plaintiff suffered injury; * The injury was a reasonably foreseeable consequence of the defendant 's action or inaction. http://www.expertlaw.com/library/personal_injury/negligence.html Negligence liability normally rests with the party that owes a duty of care. If there has been a breach of this duty, which has resulted in financial loss, personal injury or otherwise, then the negligent party may be liable to pay compensation to the innocent party. The defendant must be proved to have owed the plaintiff a duty of care ( Donoghue v Stevenson). For example it is well established that drivers owe a duty of care to other road users.
The defendant must also be shown to
ISSUES
Is Bob liable to Mary and to what extent?
Does Bob have any defenses?
Is Tom liable to Sam and to what extent?
LAW In this case we are dealing with tort law and more specifically negligence in tort law.
Negligence in tort law requires the plaintiff to prove the following: * The defendant owed a duty to the plaintiff (or a duty to the general public, including the plaintiff); * The defendant violated that duty; * As a result of the defendant 's violation of that duty, the plaintiff suffered injury; * The injury was a reasonably foreseeable consequence of the defendant 's action or inaction. http://www.expertlaw.com/library/personal_injury/negligence.html Negligence liability normally rests with the party that owes a duty of care. If there has been a breach of this duty, which has resulted in financial loss, personal injury or otherwise, then the negligent party may be liable to pay compensation to the innocent party. The defendant must be proved to have owed the plaintiff a duty of care ( Donoghue v Stevenson). For example it is well established that drivers owe a duty of care to other road users.
The defendant must also be shown to
References: Latimer. P. (2012) . Australian business law (31 ed.) Australia, MA: CCH a Wolters Kluwer business Australian Government (2012,March 21) . Attorney-Governal’s Department . Australian contract law. Retrieved from; http://www.ag.gov.au/Consultationsreformsandreviews/Pages/Review-of-Australian-Contract-Law.aspx Stwart, P. , & Stuhmake, A. (2005) . Australian principles of tort law. Sydney, MA: Cavendish publishing Ltd Clarke, J. (2010) Australian contract law: Agreement Received from: http://www.australiancontractlaw.com/law/formation-consideration.html