Laws5061 Commercial Law For Peerless Assessment Answers

Conclusion:

Therefore, it can be stated that Michelle owes a duty of care to Rebacca.

Issue:

The second issue regarding the case is that whether Michelle had breached her duty of care by failing to meet the standard of care or not.

Rule:

The term standard of care is a part of the Tort law. It  has been mentioned under the law that by standard of care it is meant that what would a prudent man would do in certain situations and the standard is depend on circumstances (Stewart and Stuhmcke 2014). The doctrine of standard of care has been mentioned in Vaughn v Menlove (1837) where it has been mentioned by the Court to take certain reasonable caution by the prudent man. In Cordas v Peerless Taxi Company 27 NYS 198 (1941) it was held that a taxi driver will not be held liable if he jumped off from a moving taxi when he was at the gun point of some antisocial. Therefore, it can be stated that duty of care is a parameter to understand what a prudent person decided to do in emergency period (Lyons 2015). Standard duty of care is also forms a part of negligence if a person had failed to realise his duty.

Application:

In this case, Michelle, being so drunken at the time of driving the car, must be able to realise her condition and should not drive the car when Rebecca was requested her twice not to drive the car. However, she had not listen to her and therefore, met with an accident.

Conclusion:

Therefore, it can be stated that Michelle had breached her standard duty of care.

Issue:

The third issue regarding the case is that whether Rebaccca’s injury has caused by Michelle’s action or not.

Rules:

The present issue is based on the “but for test” or the causation in Tort law. In such cases, it is needed to be established that injury has been sustained to the claimant by the negligent act of the defendant. In Chester v Afshar [2004] 3 WLR 927, the principle regarding the but for test has been adopted. In Clements v Clements [2012] 2 SCR 181, it was observed by the court that when an accident has been caused by the defendant to the plaintiff due to breach regarding the duty of care, and if the plaintiff developed certain injury regarding the same, defendant will be held liable under the but for test.

Application:

In the present case, it has been observed that Rebecca developed injury for the negligent acts of Michelle and meet with an accident and sustained severe injury. As a driver, Michelle had failed to foresee the risk regarding the drunken drive (Policy and Resolution 2017).

Conclusion:

Therefore, it can be stated that the negligent act of Michelle caused harm to Rebacca.

Issue:

The fourth issue regarding the case is to determine whether Michelle can rely on the defence of contributory negligence or not.

Rules:

The provision of contributory negligence has been mentioned under the Civil Liability Act and the provision regarding the same has been mentioned under section 44 of the said Act (Barry 2017). The rules regarding the same is that the acts of the plaintiff will also examined in a negligent case. It has been stated under section 46 of the Act that if it has been observed that if the plaintiff was intoxicated at the time of the accident, he/ she will also be held liable (Cusimano and Roberts 2016).

Application:

In this case, Rebacca was drunk too and she had also unable to foresee the risk of accident. It is clear from the case that Rebacca allowed Michelle to drive the car in the drunken conditions.

Conclusion:

Therefore, it can be stated that Michelle can bring action against Rebacca under the provision of the contributory negligence.

Issue:

The last issue regarding the case is to determine whether Michelle can rely on defence of voluntary assumption of risk.

Rule:

The provision regarding the assumption of risk has been stated under section 36 of the Civil Liability Act. The term is quite similar to the principle of volenti non fit injuria. It has been stated under the provision that where there is a risk regarding certain things and the plaintiff is willing to do the thing after knowing its outcome. In Morris v Murray [1990] 3 All ER 801, it has been observed when a drunken person wanted a lift from a drunken driver and meet with an accident, the person will be held liable who accepted a lift from the drunken driver (Bilimoria et al. 2015).

Application:

In this present case, it has been observed that Rebacca knew the fact that Michelle is drunk and in spite of that Rebacca had allowed Michelle to drive the care and sustained injury regarding the same (VanDerhei 2014).

Conclusion:

Therefore, it can be stated that Michelle can rely on the voluntary assumption of risk against Rebacca.

Reference:

Bai, X., Xia, F., Lee, I., Zhang, J. and Ning, Z., 2016. Identifying anomalous citations for objective evaluation of scholarly article impact. PloS one, 11(9), p.e0162364.

Barry, C., 2017. Statutory modifications of contributory negligence at common law. Precedent (Sydney, NSW), (140), p.12.

Bilimoria, K.Y., Chung, J.W., Hedges, L.V., Dahlke, A.R., Love, R., Cohen, M.E., Hoyt, D.B., Yang, A.D., Tarpley, J.L., Mellinger, J.D. and Mahvi, D.M., 2016. National cluster-randomized trial of duty-hour flexibility in surgical training. New England Journal of Medicine, 374(8), pp.713-727.

Cusimano, G.S. and Roberts, M.L., 2016. Contributory Negligence and Assumption of Risk. Alabama Tort Law, 1.

Lyons, A., 2015. Duty of care. Good Practice, (12), p.24.

Policy, A.B., Policy, S.W.B. and Resolution, D., 2017. DUTY OF CARE.

Stewart, P. and Stuhmcke, A., 2014. Lacunae and litigants: A study of negligence cases in the high court of Australia in the first decade of the 21st century and beyond. Melb. UL Rev., 38, p.151.

VanDerhei, J., 2014. Contributory'Negligence?'The Impact of Future Contributions to Defined Contribution Plans on Retirement Income Adequacy for Gen Xers. VanDerhei, J., 2014. Contributory'Negligence?'The Impact of Future Contributions to Defined Contribution Plans on Retirement Income Adequacy for Gen Xers.