Law Assignment Sample

1.Various concepts of negligence and common law

In the given case scenario, it has been provided that it was raining that night and Anna did not taxi as it was heavily raining and she was unable to wait for it. So, she decide to take a lift from Michael. Anna realised that Michael drank alcohol prior driving the bike and also he was not able to drive the bike properly. Also, Anna did not want to stop the journey on bike as it was heavily raining so she decided to continue with Michael only. Further more, after some time, due to lost over his control on bike, they hit a tree and injured Anna and himself very badly and seriously.

Laws and legislations are framed for the protection of the rights of citizens by enforcing varied governmental and social laws and regulations (Perry, (2011)). In the context of Australia, there are various laws and regulations which are established for the betterment of the society and its people. Common law in Australia is a body which has been formed with a perspective to effect the legal rights and rules. It is the body which includes the cases by judges tribunals and courts. It can be said that since long time ago, there is a significant change and the differentiation among UK and Australian laws.

It can also be noted that as per the provisions of The Civil Liability Act, various ideas related to Liability for harm caused by the default of a person and negligence of duty of care has been illustrated (Condon, Anand and Sarra, (2010)). Duty of care is an idea where one person owed a duty of care and it has been breached by that person by an exercise of negligence on the part of it. It must be noted that the person who has suffered loss or injuries can claim the indemnification for harm and damage that has been caused to him by defendant. Damages can also be claimed in respect of the breach of contract or any other deed performed by litigant (Day, (2010)).

Negligence of duty of care is a term in which one person breaches his lawful duty to care which has been obligated on him requiring a considerable and reasonable care during performance of any acts. Case law of Stokes v House With No Steps [2016] QSC 79(Supreme Court of Queensland, Jackson J, 11 April 2016), has bee decided in respect of Negligence.

In accordance with the sections of the General principles laid down regarding the term of “Duty of care” . It conveys that a person is not liable to pay for the damages for not complying with the precautions which he was supposed to opt until and unless

1. The risk can be considered as the foreseeable.
2. The risk was treated as significant.
3. Reasonable person are supposed to take those precautions.

Also, there is an another concept which defines the term “Causation”. It consist of the principles which determines the elements of the fault of the tortfeasor (Hao, (2010)). It includes the elements namely:

1. The fault was rendered as a necessary condition of the occurrence of harm.
2. It is not feasible for the tortfeasor to extend its scope to its liability.

The burden of proof always lies on the plaintiff in order to claim the damages from the tortfeasor for the damages caused by him. It can also be said that the claimant has to satisfy the Court by relevant proofs and evidences which can enable him to obtain damages from defendant.

From this presented case scenario, it can be analysed that there the Michael was considered as tortfeasor and Anna was treated as plaintiff. From the above case, it has been concluded that Michael was owed a duty of care to Anna. On the other hand, Michael breached and ruptured his duty of care as he drove negligently (Ross, (2012)).

In this case to claim the damages from Michael , it is necessary by her to prove the breach of duty on part of Michael. In accordance with the provisions of the Civil Liability Act, Anna needs to prove the following:

1. That the risk of injury was foreseeable. It is so because as Michael was drunk so it can be implied that the injury can be happen.
2. Also, Michael owed her a duty of aid or care.
3. Michael has ruptured that duty by driving being drunk.
4. Also, the damage and injury has been caused by the breach of duty (Condon, Anand and Sarra, (2010)). In this case the Michael has ruptured the duty of care owed on Anna, as he drove rashly and negligently, which leads to the serious damage and injuries.

So it has been concluded that Michael was in a breach of duty to Anna. Also, Anna can claim damages from Michael for negligence in duty of care.

2. Remedies and defences by defendant

Civil liability is a concept which means one person is responsible for the acts done for others. Negligence is a part of it (Brüggemeier, (2011)). It can be seen that there are various concepts which are related to the civil liability. In this context, civil liability demonstrates that one person is responsible for the wrong acts done or committed by another party. It can be treated as an opposite wit the law of criminal which is engaged in the wrong acts done against an entire society.

In the given case scenario, Anna did not take taxi as it was raining heavily and also she could not wait for it to lower down. Michael was drunk, but still he was driving bike with negligence. As a result, they bot suffered with serious injuries. From this, it can be held that Michael was breach of duty and Anna is eligible to claim the damages from Michael.

Moreover, in the light of the various provisions of the Civil Liability Act, it also been provided that there are some remedies and defences which has bee allotted to the defendant. These can be summarised as follows:

1. The case where the defendant claims that plaintiff is responsible for his own harm and that is why defendant can not be held liable for the breach of duty of care.
2. Also, another type of defence is that when the court identifies that there are more than one party which is liable for the harm caused to plaintiff.
3. There is one more form of defence in which it has been evaluated by court that injured party or plaintiff has been engaged in the criminal activities(Dittfurth, (2016)) .
4. Defendant can also not be considered liable for the damages which are not in the control of human.

So, from the above defences which are been framed in respect of the defendant in some circumstances, it can be concluded that the Michel can claim their defence. He can claim the damages on the basis of contributory negligence. In this provision, it can be claimed by Michael that Anna has herself contributed to her harm as she took her own decision to take a lift from Michael. It can also be claimed out by Michael that Anna could have been take some reasonable steps so as to avoid the liability.

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CONCLUSION

From the above report it can be comprehended that there are various forms of law which can be characterised as Civil Liability Act, Criminal Liability Act etc. Civil liability Act has conferred various laws and legislations which are framed in respect of negligence of duty and other general principles. In addition to this, in this report it has also been concluded that it is the duty of Defendant to take care of the duty that has be owed by him on other party. In this context , Anna is liable to claim the damages from the other party. Also there are various forms of defences which are available for Michael to file for his defence and pleadings.

REFERENCES

• Coffee Jr, J. C., Sale, H., & Henderson, M. T. (2015). Securities regulation: Cases and materials.
• Perry, R. (2011). The Deepwater Horizon oil spill and the limits of civil liability.Wash. L. Rev..86. 1.
• Day, T. (2010). The new digital dating behavior-sexting: Teens’ explicit love letters: Criminal justice or civil liability.
• Ross, D. L. (2012).Civil liability in criminal justice. Routledge.
• Brüggemeier, G. (2011).Modernising civil liability law in Europe, China, Brazil and Russia: texts and commentaries. Cambridge University Press.
• Dittfurth, D. (2016). Restitution in Texas: Civil Liability for Unjust Enrichment.
• Condon, M., Anand, A., & Sarra, J. (2010).Securities Law in Canada: Cases and Commentary. Emond Montgomery Publications.
• Condon, M., Anand, A., & Sarra, J. (2010).Securities Law in Canada: Cases and Commentary. Emond Montgomery Publications.