LAWS5061 Commercial Law

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LAWS5061 Commercial Law

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LAWS5061 Commercial Law

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Course Code: LAWS5061
University: The University Of Newcastle

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Country: Australia

Describe about the Commercial Law For the Aldi Supermarket. 

Negligence is the carelessness. When reasonable care is failed to be taken by someone and loss or injury is caused to the innocent party that results is negligence. There are certain elements of negligence like Standard of care, Duty of care, Cap on Damages, Contributory Negligence, Causation & Remoteness and Voluntary Assumption of Risk (Schwartz, 2010). The present case deals with Tamara and Aldi Supermarket. From the case scenario it is apparent that Tamara is very fond of chocolates. She used to buy her favourite brand from the mentioned supermarket. It was in high demand, so often she was unable to get it as it used to be out of stock. One day she visited the Aldi Supermarket in her vicinity to get her brand of chocolate. She saw from a distance that there was only one bar available for sale. She had to rush since another customer was targeting towards the same bar. She slipped because molten ice cream was spilled on the floor. She suffered injuries and had to spend a lot of money in the hospital for recovery.
Generally there are recognised duties of care like authorities of police and government, builders, advisers, occupiers, drivers and manufacturers.
Duty of care  
There is legal obligation of responsibility of a person for the organization or a specific person through which omissions and acts can be avoided.  Because of carelessness and negligence, if a person is not capable to fulfil his responsibility then, duty of care is needed to be owed. If someone breaches duty of care then the guilty party has to give compensation for damages for the breach of contract (Raz, 2010).  owed duty of care towards Tamara which they failed to exercise. This resulted in her injury.
For example a description of case is given that is Donoghue v. Stevenson case. This case is also known as ‘snail in the bottle case’ which is a king of Western law. Ms May Donoghue went to buy a ginger beer which a friend has purchased. Later it was discovered that decomposed snail was found inside the bottle. After consuming the drink Donoghue became ill and admitted to hospital (Chapman, 2010). Then she took legal action against Mr. David Stevenson for manufacturing the ginger beer. She seeks £500 damages. This case is breach of duty of care. It was the duty of the manufacturer or shopkeeper to sell the product and before that manufacturing date, expiry date and seal of the company is first needed to be checked then it should be sold in market. It is necessary that Stevenson should have checked the product and sold, so it is breach of duty of care.
Standard of care
Standard of care is known as degree of prudence and caution is required in this structure. Standard of care is part of duty of care. If breach of duty of care is done and civil liability is not fulfilled then it is known as Standard of care. Standard of care is breached when medical malpractice is done (Lencioni, 2010). Aldi Supermarket did not exercise the degree of caution and care for protecting their customers from harm within their premises. They had failed to take steps to avoid accidents.
For example Bolitho v City & Hackney Health Authority [1997] HL case can be given as example. This case falls under breach of medical standard of care or tort of negligence. A 2 year old boy suffered from brain damage because of failure of respiratory system. He was admitted to the hospital. His main problem was breathing difficulty (Mason, 2013). A bleep was summoned by doctor who was not working because of ten batteries. Bolam test was done and evidence proved that his respiratory problem can be solved but without treatment he died. This was breach of duty of care of the doctor because it was his duty to manage the bleep in time for that she can be sued.
Negligent act is the reason that losses incurred. When conduct is connected which effects typical injury is criminal case is defined as Actus Reus. Specific injury is combined with mens rea which comprise elements of guilt. Causation can be factual causation and proximate causation (Greenland, 2011). Tamara has to prove before the court that she suffered from injuries as a result of the negligent omission of duty to take care on part of the supermarket owners.
For example Causation: Cork v Kirby MacLean can be given. The person was working in a narrow platform where there were no guards. He fall down and died. In this case his employer is has vicarious liability because he died in duty hours (Abeyratne, 2010). This is a breach of factual case. It was employer’s liability to maintain security but causation stands because the person should also be careful while working. This is the case of causation.
Foreseeable type of damage is related with foreseeable in nature. Remoteness falls under Remoteness with additional damage of occupier’s liability. In tort law defendant has to look after the breach of duty (Taylor, 2012). In the present case Aldi Supermarket could have avoided the incident if they had indentified the spillage and removed it.
For example the case of Overseas Tank ship Ltd. V. Miller Steamship Co can be given. Because of negligence the defendants spilled oil in the Sydney port. Minimal damage is done to the plaintiff’s ship. Then fire was caused because of the molten metal dropped and that destroyed the ship. In this case nothing was done intentionally by the defendant but the plaintiff had faced loss which was the reason of the negligence occurred because of the oil spillage. In such case plaintiff can sue the defendant because careless act has done by the defendant (Furmstone, 2012). Such cases are Remoteness.
Voluntary Assumption of Risk
In defense of law of torts assumption of risk has been done with the recovery against negligent tort feasor. Voluntary assumption is done with the negligence of defense with actual inferable knowledge. In this case the plaintiff has knowledge of risk (Mullins, 2013).
Express vs. Implied Assumption of Risk case can be described. For example John wants to do sky drive with waiver liability. In the activity students sue the company with expressive assumption of risk. At last the risk was to be identified.
Contributory negligence
The doctrine of common law works with common law. If collective damage occurs then proportion of damages may take place in this case. It could be said that Tamara could have avoided the injury if she had not run hastily. This is a defense that can be used by the supermarket owners.
For example Nettleship v Weston [1971] 3 WLR 370 can be given as example. Here the learner driver is the defendant. She was learning driving; suddenly because of panic accident took place which is the reason of brake fell. The car was not covered with insurance and in this case both the teacher and student of driving are liable and they have to give penalty to court.
With respect to the supermarket the concept of vicarious liability can also be applied (Rosenoer, 2012). It is derived from the doctrine of agency. In the present case, the supermarket owners had defended themselves by saying that they had appointed workers to clean spillages for every 40 minutes. However as per the rule of vicarious liability, the employer is liable for the acts of the employee when he or she is working during the course of employment. Thus Tamara has to prove before the court that the incident had occurred during office hours. She can sue both the employee and the employers.  
Civil Liability Act
When personal injury and common law of negligence is limited by civil liability the statutory cap for general damage and personal injury is $400,000 to $ 500,000 (Cook, 2015).
For example Texas intentional tort case can be given. In this case Texas filed a case against the security company for defamation. It was claim that merchandise is stolen by salesperson and security was not concern. Personal injury is also resulted. So the security has breached the civil liability act. 
Abeyratne, R. (2010). Aviation security law. Springer Science & Business Media.
Cook, J. G., & Sobieski Jr, J. L. (2015). Conspiracies To Interfere With Civil Rights (Civil Rights Act of 1871, 42 USC §§ 1985, 1986) (Vol. 3). Civil Rights Actions.
Furmston, M. P., Cheshire, G. C., & Fifoot, C. H. S. (2012). Cheshire, Fifoot and Furmston’s law of contract. Oxford university press.
Greenland, S. (2011). Causation and causal inference (pp. 216-221). Springer Berlin Heidelberg.
Lencioni, R., & Llovet, J. M. (2010, February). Modified RECIST (mRECIST) assessment for hepatocellular carcinoma. In Seminars in liver disease (Vol. 30, No. 01, pp. 052-060). © Thieme Medical Publishers.
Mason, K., Laurie, G., & Smith, A. M. (2013). Mason and McCall Smith’s law and medical ethics. Oxford University Press.
Mullins, G. (2013). Voluntary assumption of risk. Precedent (Sydney, NSW), (115), 25.
Raz, J. (2010). Responsibility and the negligence standard. Oxford Journal of Legal Studies, 1-18.
Rosenoer, J. (2012). CyberLaw: The law of the Internet. Springer Science & Business Media.
Schwartz, V. E., & Rowe, E. F. (2010). Comparative negligence. LexisNexis.
Taylor, M. A. (2012). Remoteness and accessibility in the vulnerability analysis of regional road networks. Transportation research part A: policy and practice, 46(5), 761-771.

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