Ibrahim Lozi 18344080

This case refers to the topic of common law negligence. In order for a plaintiff to have a case, they
must prove the three elements of liability in a negligence case. These include duty of care, breach of
duty and damage. If all these elements have been proven, then the defendant may then rebut the
negligence claims by utilising various defences to negligence.

The first element of negligence the plaintiff must prove is duty of care. This involves taking
reasonable care to prevent causing harm to another individual. The plaintiff must prove that there
was a duty of care owed to the victim by the defendant. It must be satisfied, that at the time of the
incident, that within reason, it was foreseeable that the defendants actions or lack there of could or
will cause the damage or harm to the plaintiff and or someone in the plaintiffs position. Duty of care
is only owed to certain people in specific situations. It was established by Lord Atkins during the
first negligence case Donoghue vs Stephenson (1932) that in summary, a duty of care is owed to
people who are close or affected by acts of the defendant. This ideal has now become known as the
neighbour principle.

The second element of negligence that the plaintiff must prove is breach of duty. The plaintiff must
prove that the defendant has breached their duty of care. The defendants duty of care is put into
question. The risk must be foreseeable, the risk of harm must be significant and a reasonable
individual in the defendant's position would have taken precautions against said harm. Theses
qualities are needed to be proven in order to establish that there was a breach of duty by the
defendant. It is these qualities are separately considered by the court. In the case New South Wales v
Fahy (2007), the breach of duty was not established because the risk was not foreseeable, and that
they had taken satisfactory precautions, and it was not reasonable to take the certain precautions that
would have prevented the damage, whilst the risk was not foreseeable.

The third and final element of negligence is damage. Damage is harm suffered by the plaintiff. The
plaintiff must prove that damage received was caused by the defendants breach of duty of care. To
determine this, the court must two prove matters. Proving fatal caution is one part in proving the
damage was a result of the defendants actions or lack there of. To prove fatal causation, a direct
relationship must be made between the plaintiffs harm received and the breach of duty of care by
the defendant. The question asked to establish this is: but for the defendants breach of duty, would
the plaintiff have received the damage? If the answer to this question is yes, then the court must
then determine the scope of liability. The court decides if the defendants liability extends to the
harm that was received by the plaintiff. It must be found that the defendant is liable for the harm
that the plaintiff received.

If all elements of negligence are proven, the defendant can make a defence. They can make use of a
few defences to negligence. The defendant could make a defence on the elements and argue them.
They can argue that the element were not satisfied. Another defence is contributory negligence,
arguing that the plaintiff contributed to their own injury. They could also make general defences
such as assumption of risk. Definitions of liability in certain conditions can be found in the Civil
Liability Act 2002. Liability can generally be defined as being legally responsible.This can help
determine a court's decision.

Simon, in your current situation, there are two people that you could make claims on negligence
against: Phillipa and the owner of the bottle shop. In regards to the first plaintiff, Simon, we first
need to establish the first element of negligence which is duty of care. Does the defendant, Phillipa
owe a duty of care to Simon? I believe that is not the case. The risk of harm was not foreseeable
according to the statement given. However we cannot determine how much alcohol the plaintiff
consumed prior to giving the advice or how it affected her judgement. Thus, the other two elements
Ibrahim Lozi 18344080

cannot be proven. Additionally, Sect 5O of the Civil Liability Act 2002, helps determine that it was
competent professional advice as she told him to call me the next morning. Since you invested the
money with out calling her, a defence of contributory negligence can be made by the defendant.
Therefore, it stands within reason that you would be unsuccessful in making a claim of negligence
against Phillipa.

Another possible negligence claim you can make is against is the owner of the bottle shop. We can
establish that the defendant does owe a duty of care. The defendant is responsible for any harm that
may occur whilst an individual is in their shop and attempting to purchasing something. Now to
determine if the defendant breached their duty of care. It is foreseeable that harm may occur when
trying to get bottles that are in a hard to reach area. The risk of harm was clearly significant,
however, it was not reasonable for the defendant to take the precautions against this risk. It would
be impracticable to move the bottles because it is reasonable to assume that they would have not
been placed there if they was space elsewhere. A couple of defences can also be made by the
defendant. One defence that can be made is assumption of risk. Similar, the definition of
assumption of risk found in the Civil Liability Act 2002, Sect 5F. The risk of falling was obvious,
regardless if the chance of it happening was low. This also connects to contributory negligence, as
you decided to take the risk and try reach the bottle, whilst you could have asked for assistance. In
this instance, similarities can be made between your case and Grant v Australian Knitting Mills
(1935) as arguments can be made for both the defendant and the plaintiff in regards to liability and
negligence. In short I believe you would be unsuccessful in pursuing a claim of negligence against
the owner of the bottle shop.

Now to advise the second client Peter. It is possible for Peter to pursue a negligence claim against
the local council that is in charge of Springfield National Park. Firstly, it is clear that local council
owes a duty of care to all individuals that use the park. Their duty is to maintain the park and keep it
as safe as possible so that anyone can enjoy it. Now lets determine if the council has breached their
duty of care. The risk of the tree falling was not foreseeable as it was moved by an external force, in
this case a car. As a result of this external force, the local council did not breach their duty of care to
the plaintiff. In response, the local council can also make defences to negligence. Assumption of
risk is one such defence as there was a sign indicating the roots were moved, and as a result, the tree
may become unstable. Section 5M of the Civil Liability Act 2002 can also be used as a defence by
the defendant. They provided a risk warning that tree stability may have been affected and that and
it was not needed to be specific about the danger of the tree falling. They may also argue
assumption of risk. In summary, I believe that you would be unsuccessful in pursuing a negligence
claim.

Another individual the plaintiff could make a negligence claim against is Jacob, the driver of the
car. It is within reason that the defendant does owe a duty of care to the plaintiff. The defendant's
driving could affect anyone that in proximity of his vehicle. This is an another example of the
neighbour principle established by Lord Atkins during the Donoghue vs Stephenson (1932) case.
Also, the risk is foreseeable that someone may be harmed during the activity undertaken by the
defendant and the risk was also significant. It is safe to state that a reasonable person in the
plaintiff's position would take precautions against the risk of harm whilst driving. Finally, factual
caution and scope of liability can be proven against the defendant. If it were not for the defendant's
accident, the tree would not have fallen onto the plaintiff. They should also be liable, however we
must consider that the conditions in which the defendant was driving is unknown. The defendant
may make a defence against the elements. They could argue that breach of duty was not satisfied
and that the risk of the tree falling was not foreseeable. Therefore, it is within reason to say, that you
may be successful in completing a negligence claim against Jacob.