Irac of Negligence

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Introduction:
In Rebecca & ‘Zorba’s’ Restaurant case, the main issue is whether negligence exists of the defendant? There are three prerequisites must be present before the tort of negligence can arise: a duty of care must be owed by one person to another; there must be a breach of that duty of care; and damage must have been suffered as a result of the breach of duty. (FoBL, 2005, p70) In addition, another element must be satisfied to prove negligence is the causation. This essay will analysis Rebecca v. ‘Zorba’s’ with these four issues.

IRAC Process No. 1
Does ‘Zorba’s’ Restaurant own a duty of care to Rebecca Disasteropoulos?
There are two common factors that must exist before the law says a duty of care exists, which are foreseeability and proximity.

Firstly, in discussing the incidence of a duty of care, a historical case that defines the ‘neighbour principle’ must be taken into account – the case of Donoghue v. Stevenson[1]. The decision of this case developed a principle which has become known as the ‘neighbor principle’ by Lord Atkin that the neighbor means the closely and directly person by another’s act. (FoBL, 2005, p68)

Secondly, it must be foreseeable that the omission of the defendant could cause harm to the plaintiff. An objective test is used through the question, whether a reasonable person would foresee the damage occurring from the defendant. According to the case of Hay or Bourhill v. Young[2], it is not necessary to foresee the actual damage that will occur. It is enough if it can be shown that some types of damage could arise as a result of the defendant’s conduct. (FoBL, 2005, p68)

In addition, proximity that requires care to be taken must exist. Proximity involves the notion of nearness or closeness and embrace physical proximity between the person or property of the plaintiff and the person and property of the defendant…causal proximity in the sense of closeness or directness of the relationship between the particular act or



Bibliography: Barron, M.L., Fundamentals of Business Law, 5th edition, McGraw-Hill, Australia, 2006 Table of Cases: Jaensch v. Coffey (1984) 155 CLR 549 at 584-5 Liftronic Pty Ltd v Woods v. Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145 ----------------------- [3] Jaensch v. Coffey (1984) 155 CLR 549 at 584-5 [4] Donoghue v [7] Woods v. Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145 [8] Watt v

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