Commercial Law Law Reform Commission

Question: Describe about the Commercial Law for Law Reform Commission. Answer: Issue The issue here is whether Rebecca sues Michelle in negligence for her losses. Rules Negligence refers to the act done by a person in careless manner due to which physical, psychological or financial loss or injury is caused to another person or group of persons (Legal Services Commission, 2013). The suffered person might sue the person who caused such damage to compensate for the loss or injury incurred to him (Lawstuff, 2015). Civil Liability Act 1936 is applicable in South Australia, which is utilized in assessment of negligent act done by any person and the liability imposed on him for such an act. The sufferer seeks financial compensation for loss or damage(Legal Services Commission , 2013). In order to determine whether negligence has occurred or not, four demands must be satisfied i.e. if the defendant owes a duty of care or responsibility towards plaintiff, if that duty of care has been breached by the defendant, if any kind of injury or damage has been caused to the plaintiff, and finally, if the reason of injury or damage has been the consequence of breach of the duty of care and responsibility. To prove negligence on the part of defendant, all these factors are required to be satisfied and if even one of the above mentioned demands is not fulfilled, the establishment of negligence is impossible (Australian Law Reform Commission, 2016). To determine whether a person owes a duty of care towards other, the existence of a sufficient proximity of relationship is must. It is a legal obligation to prevent a person from causing harm to others and then also caused, when harm is rationally predictable and due care is not taken (RMIT University, 2004). The court determines the breach of duty of care by seeking at the standard of care to be predictable in the existing conditions. It is considered by the court that what course of action would have been done by a reasonable person in the similar situation and if the act done by the defendant has been found to be unreasonable from the standard predicted, he will be proved guilty of breach of due duty of care(Legal Aid , 2015). To determine the relation of breach of duty of care and injury, it is to be assessed if there are more than one causes of injury. Contributory negligence occurs in case where the cause of injury is found to have been the contribution of the injured person themselves(Trindade et al., 2007). Plaintiff will be considered as contributory negligent if he/she has failed to take due care for self-safety or loss incurred (International Law Office, 2001). Application Rebecca and Michelle were drunk when they left the opera after the performance. Even if Rebecca has realized the fact that Michelle was too drunk to drive, she did not refuse to sit in the car and not even suggested her not to drive the car in that condition. When they were on their way to home, knowing Michele was driving dangerously, she asked her twice to get out of the car but Michelle refused. As a consequence, Michelle continued the driving and crashed the car. Rebecca got seriously injured and her leg got broken. There is a clear Negligence on the part of Michelle. As Michelle drove the car in a careless manner as a consequence of which, Rebecca suffered from serious physical injuries. She got her leg broken. The assessment of negligent act done by Michelle can be proved under the Civil Liability Act of South Australia and Rebecca is eligible to sue Michelle for compensation for the loss or injury incurred to him. The four factors which are required to be satisfied to prove the negligence on the part of Michelle are as follows; Michelle and Rebecca are friends which show there is a sufficient relationship between the two to owe a duty of care towards each other. In this case, it was the legal obligation of Michelle and Rebecca to owe a duty of care towards each other. Neither Rebecca advised Michelle not to drive harshly even if she realized that she was very much drunk to drive the car, nor did Michelle though once not to drive as it might cause harm to both of them. Michelle and Rebecca are equally liable for the harm occurred as the harm was reasonably foreseeable and none of them took due care and responsibility. The breach of duty of care is clearly visible on the part of Michelle as, any reasonable person would not drive a car in a drunken state and put his/her life as well as others life in danger. However, duty of care has been breached on behalf of Rebecca also as, she should have stopped Michelle from driving the car in drunken condition. Contributory negligence shall be applicable on Rebecca as she was conscious enough not to accept the ride when Michelle was driving the car in a drunken state. She has failed to take due care for her own safety due to which she suffered serious injury. The fact is that Michelle and Rebecca are friends and equally owes duty of care towards each other, breached the duty of care, and the consequences are the serious injuries to Rebecca. The court would hold both of them equally liable for the incident. Conclusion Rebecca should not sue Michelle in negligence because she herself is equally responsible for the accident happened. Firstly, Michelle should not have driven car in drunken state and secondly, if she was ready to drive, it was the legal responsibility of Rebecca to stop her from driving the car. If then, she failed to do accordingly, she should have denied the ride to home with her for her own safety but she accepted the ride. The fault of Michelle is that she must have thought about the consequences of driving in a drunken state but she acted negligently and crashed the car and injured her friend too. Of course, her fault is bigger than the fault of Rebecca but the accident might have avoided by the reasonable act of Rebecca. Therefore, she is equally liable. Therefore, Rebecca should not sue Michelle for negligence. References Australian Law Reform Commission, 2016. 16. Authorising what would otherwise be a Tort. [Online] Available at: https://www.alrc.gov.au/publications/right-sue-tort [Accessed 9 September 2016]. International Law Office, 2001. Contributory Negligence no Longer a Winning Defence. [Online] Available at: https://www.internationallawoffice.com/Newsletters/Litigation/Australia/Clayton-Utz/Contributory-Negligence-no-Longer-a-Winning-Defence [Accessed 9 September 2016]. Lawstuff, 2015. Being Sued. [Online] Available at: https://www.lawstuff.org.au/sa_law/topics/being-sued [Accessed 9 September 2016]. Legal Aid , 2015. Negligence. [Online] Available at: https://www.legalaid.wa.gov.au/InformationAboutTheLaw/BirthLifeandDeath/Personalinjury/Pages/Negligence.aspx [Accessed 9 September 2016]. Legal Services Commission , 2013. Negligence. [Online] Available at: https://www.lawhandbook.sa.gov.au/ch01s05.php [Accessed September 2016]. Legal Services Commission, 2013. What is negligence? [Online] Available at: https://www.lawhandbook.sa.gov.au/ch29s05s01.php [Accessed 10 September 2016]. RMIT University, 2004. Explanation of negligence concept map. [Online] Available at: https://www.dlsweb.rmit.edu.au/lsu/content/d_bus/law/business_negligence/concept/explanation.html [Accessed 10 September 2016]. Trindade, F.A., Cane, P. Lunney, M., 2007. The Law of Torts in Australia. Oxford University Press.