Mary v Peter
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  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  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 been required to avoid the harm was really simple; not changing the CD. Since Mary was walking along the freeway and she was not supposed to be walking there and had been warned with the relevant road sign, we need to use the ‘but for’ test to see if she had contributed to her own accident. In the case of Cork v Kirby Maclean  2 ALL ER 402, where the plaintiff had a fit and fell to the ground while working on a platform, the court found that the victim would not have fallen ‘but for’ the absence of guard rail and hence the defendant was liable. Here we can see that, no harm would have befallen Mary ‘but for’ her presence on the side of the freeway. Section 5R of the Civil Liability Act 2002 (NSW), provide that the plaintiff must take reasonable care to avoid harm to themselves. In the Mak Woon King v Wong Chiu  2 HKLRD 295, a factory worker contributed to his own death by failing to comply with the safety instructions for the use of an electrical saw and the factory owner failed to adjust the safety-guards. Hence, the court found that the worker contributed to his own death in the proportion of 85%-15%. Just as in the Mak Woon King v Wong Chiu  2 HKLRD 295 case, Mary has contributed to her own accident by avoiding the danger sign and walking along the freeway. Conclusion
Both the plaintiff and the defended are at fault. The defendant has violated s 5B(1) and s 5B(2) of the Civil Liability Act 2002 (NSW) by being negligent, not foreseeing his actions would endanger his as well as other road users life and for breaching the standard of reasonable care. The plaintiff has violated s 5R of the Civil Liability Act 2002 (NSW) by not taking reasonable care to avoid harm for themselves. Hence the plaintiff has contributed to her own harm in the proportion of 30%-70%.
Sam v Tom & Peter
Since Sam has lost $5000 worth of meat, who is responsible for it? Law
* Here, it is important to determine who is responsible for Sam’s loss, is it Peter or Tom? *...
Bibliography: Perre v Apand (1999) 198 CLR 180.
Ultramares Corp v Touche, Niven & Co 174 NE 441 (1931).
Harvey, C and Mesiti, V (2009)
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