Australia Famous Case Australian Knitting â€Myassignmenthelp.Com

Question: Discuss About The Australia Famous Case Australian Knitting? Answer: Introducation The concept in relation to the duty of care came up from the famous ginger beer incident which took place in England. The case is cited as Donoghue v Stevenson[1]. In this case even though the consumer of the Ginger beer had no direct contactual relationship with the manufacturer of the beverage the code provided that the manufacture have a duty of care towards the consumer as it was reasonably possible that the actions of the manufacturer could cause an injury to the consumer. The same concept was used in Australia in the famous case of Australian Knitting Mills, Ld. v. Grant[2] in this case it was found that the manufacturers of a certain product reliable 2 hour duty do the consumers even though they did not have a direct contractual relationship with them. In the case of Caparo Industries pIc v Dickman[3] it was provided by the code that a duty of care exist when home calls to another person is reasonably foreseeable. The test of determining duty of care provided through this case is known as the caparo test. Application In this case it is clear that Michelle has a duty of care towards Rebecca as she is the driver and it is evident that if she does not drive with proper care her actions can cause injury to the co-passengers in the car. Therefore as Rebecca was the co-passenger it can be said according to the above discuss cases that a duty of care exists between them. In the case of Vaughan v Menlove [4] it was ruled by the court that whether a person has violated the existing duty of care or not can only be found out by placing another person who has a reasonable mind in the same situation which the defendant was in while the duty was allegedly breached and then observe what a reasonable person must have done in such situation to avoid injury. In case the reasonable person would have taken extra precautions to mitigate the risk of injury it would be determined by the court that the defendant is liable for the breach. In this case a reasonable person if placed in the same circumstances of Rebecca and Michelle would have realized that it is not safe to drive a car in an intoxicated state and it is most likely to cause an accident. As Michelle did not act like a reasonable person it can be said that the duty of care was violated. In case of physical injury most of the times the famous but for test is applied to find out whether the injury has been caused by the actions of the defendant or not. The test was provided in the case of Barnett v Chelsea Kensington Hospital[5]. In this case the patient would have died even if the doctor have not conducted negligence therefore the Court established at a claim for negligence cannot be established as the injury was not a direct result of the negligent action. Applying the but for test in the case of Rebecca and Michelle it can easily be determined that if Michelle was not drunk and would have listened to Rebecca to let her get out of the car dangerous to Rebecca would not have been called that she would have been out of the car when the car crashed. In the case of Jackson v McDonald's Australia Ltd[6] it was stated by the judge that if a person is injured by the actions of another but his contribution to such injury was also present then a claim of contributory negligence can be established. In such cases the compensation which is demanded by the injured party is adjusted based on the contribution which the injured party himself or herself made in relation to the injury. The contribution to injury is found out by the application of the same principles which are used to identify negligence. Rebecca had the knowledge that Michelle was drunk. Even after knowing the position of Michelle she agreed to take a ride along with her in the car. If we place a reasonable person in place of Michelle in the similar situation the person would not have taken ride with the drunk or intoxicated person. Therefore it can be said that Rebecca has contributed to the injury. Voluntary assumption of risk as stated by the Civil liability Act 2002 NSW is a situation where a reasonable person can easily assume that a risk exist in a certain activity. Even if it is found that the probability of the risk offering is very low the voluntary assumption of risk is applicable. The concept was also discussed in Morris v Murray[7]. It is clear that any reasonable person would know taking ride with an intoxicated person is very risky even if it is less probable to result in an accident. Therefore it can be stated that Michelle can rely on the defense of voluntary assumption of risk by Rebecca. The defense of voluntary assumption of this can be used by Michelle. References Australian Knitting Mills, Ld. v. Grant 50 C. L. R. 387 Barnett v Chelsea Kensington Hospital [1969] 1 QB 428 Civil Liability Act 2002 (NSW) Donoghue v Stevenson 1932 AC 522 Jackson v McDonald's Australia Ltd [2014] NSWCA 16 [1] 1932 AC 522 [2] 50 C. L. R. 387 [3] [1990] 2 AC 605 [4] (1837) 3 Bing. N.C. 467 [5] [1969] 1 QB 428 [6] [2014] NSWCA 162. [7] [1990] 3 All ER 801