CLWM4000 Business And Corporations Law - Case Study Assignment Help

Issues

The foregoing scenario gives rise to various issues for determination as follows:

1. Did the Dandenong Council owe a duty of care to Jack Smith?
2. Did Dandenong Council breach the duty owed to Jack Smith?
3. Did Jack smith suffer damage as a result of the breach?

Relevant Law

The Civil Liability Act of 1936 in Australia governs on matters of negligence and liability.

Claims under negligence depend on whether the defendant owed a duty of care to the claimant or not. The existence of a relationship the defendant and the claimant that is recognised by the law and requires that the claimant behaves in a given manner towards the claimant give rise to the existence of a duty of care. The element of the duty of care was established in the case of Donoghue v Stevenson where the neighbour principle was established when the court held that a party has a duty to ensure they protect others from harm. Further, the neighbour principle was narrowed in the Caparo Case where the three steps for identifying the existence of a duty of care was established and the elements ascertained as foreseeability, proximity and fairness.

The Caparo test establishes three stages for the establishment of the duty of care which are proximity, fairness and foreseeability. Foreseeability entails the injuries or damage being traceable to the defendant’s actions or omissions as was held in Palsgraf v Long Island Railroad Co where the Defendant’s action was established to have a nexus with the loss suffered by the Plaintiff.  Proximity is another stage that has to be established. It entails the existence of a connection existing between the claimant and the defendant.The third stage is fairness which basically entails whether the court finding the defendant owing a duty to the claimant would be just in the circumstance.The foregoing stages have to be established in order for a duty of care to exist.

In the event that a duty of care has been found, it is important to establish that the defendant has breached it. The doctrine of ‘res ipsa Loquitor’which entails the facts speaking for themselves is a way of establishing breach. In these instances, the claimants do not have to prove that the defendants breached the duty of care as the facts presented show the defendant to be in control of a situation as was held in Easson v LNER   where the defendant was not held liable for the injuries suffered by the plaintiff from falling out of a door that was manually operated by the passengers the cause of the injury is known and the injuries would have not occurred had it not been for the negligence of the defendant. ‘Res IpsaLoquitor’ basically creates a presumptuous negligence against the defendant.

The claimant has to establish that as a result of the breach of duty of care owed by the defendant, they did suffer injury or damage. The actions or lack of by the defendant have to cause the claimant or their property injury.