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Principles Of Commercial Law: Legal And Ethical Issues

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Write about the Principles of Commercial Law for Legal and Ethical Issues.




Negligence refers to an element of tort law that entails injuries that are suffered as a result of actions of carelessness by the defendant.[1]  When an individual acts in a careless manner that causes injury to another party, the legal principle of negligence requires that the one who acts carelessly is liable for any resulting injury as stipulated in the Civil Liability Act 2002 of the New South Wales. The Civil Liability Act forms the basic foundation for deciding cases and disputes that involve accidents and injuries suffered, particularly during commercial activities. Based on the information given case study, the scenario is directly related to the tort of negligence. Deriving from the Civil Liability Act 2002, there are three elements of negligence that needs to be proven before the jury. Annie had fractured her lower back after a heavy fall when she slipped after stepping on an awful mess on the floor of a bar where Brett was working. Based on the Civil Liability Act 2002, Brett can be held responsible for the injuries and losses suffered by Annie, and therefore, Annie is planning to file a legal suit against Brett for negligence. As a lawyer, I would offer Annie the following advice on legal and ethical issues, rights and remedies for liability for negligence.


Advice on Legal and Ethical Issues

As already alluded in the introduction, this is a case of a tort of negligence; therefore, I will advise Annie to file a case of negligence against Brett. To help Annie win the legal suit against Brett, I will explain to her the various legal and ethical issues involved in a tort of negligence, and the facts that she must prove before the jury. In this regard, I will explain to her the elements of a tort of a negligence claim and advise her as discussed in the section below.

The elements of tort of negligence are a duty, breach of duty, causation, and damages. For one to win a case of negligence, he or she must prove that the claimant had a responsibility of care, which he breached, and the result of the breach caused significant harm to the plaintiff.[2]  In this regard, Annie needs to prove that Brett had a duty of care over her; however, Brett breached the duty of care, and a result, she ended up with a fractured lower back.

Firstly, Annie can prove that Brett had the duty of care over her. Based on the information from the case study, Brett is charged with the duty of care for all clients who come to Tavern Bar; therefore, Brett had a legal duty to protect Annie from any injury under the circumstances. According to the scenario, it is the responsibility of Brett to clear any mess on the floor that poses any danger to the clients of Tavern Bar. It is legally binding that Brett should act in a reasonable manner to remove all sources of danger because he owes a legal duty of care to them; however, he failed to check and ensure that the vomit on the floor was cleared to ensure the safety and security of all clients at the bar. According to


Secondly, Annie can easily prove that Brett breached the duty of care that he was legally bound to have over her while at Tavern bar. The element of a breach of the duty of care states that the defendant acted of failed to act in a particular way as required by the element of duty of care.[3]  In this case study, Brett breached the duty of care by failing to take the reasonable decision to go and clean up the awful mess that the sick client left on the floor. In this regard, Annie can go ahead to prove that Brett breached his duty of care and left the awful mess on the flow, causing a major threat of harming the clients who he is legally bound to take care of. Despite this, Brett can contest this accusation by arguing that David is responsible for the lack of clearance of the awful mess because he (Brett) asked him to go and clear it.

An example of a situation where the defendant can be held responsible for the loss and damages suffered is illustrated in the case, McKew v Holland [1969] 3 All ER 1621, as discussed by Strong and Williams.[4]   In this case, the victim suffered major injuries in his place of work because of negligence and breach of duty by his employer. His back, hips, and legs experienced strain; however, even after being aware of his condition, he still went ahead to climb down a very steep staircase without the help of a handrail. Since his legs could not hold him any longer, he decided to jump ten steps to the bottom. He fractured his ankle, resulting in permanent damage. The claimant was held responsible for the ankle injury because the action was not reasonable. Besides, he made the decision to jump while in his right state of mind. Under the principles of the Novus actus interveniens, the defendant was held responsible only for the loss suffered by the claimant at the place of work.

Thirdly, Annie can prove that the breach of a duty of care by Brett caused her fall and the subsequent fracture in the lower back. According to , the defendant needs to prove that the defendant could have foreseen that his action or omission would result in injuries.[5]  In criminal law, causation refers to the relationship between the cause and the effect of the defendant’s act, for example, the harm suffered by the plaintiff.   Causation entails the establishment beyond reasonable doubt that it is as a result of the acts of the defendant that the victim suffered harm or death in a worst case scenario.[6]  Such causation must be proven beyond a reasonable doubt because there are so many factors that may cause a particular injury sustained by the victim. In the Australian criminal law, causation plays a critical role in the implementation of justice to victims.[7] 


Brett is liable for the injuries of Annie due to his act of omission. The action of the defendant can lead to a series of events that may cause harm to the victim.[8]  The chain of causation can be broken by acts of nature, third parties, and the actions of the claimant.[9]  According to the concepts of novus actus interveniens, there are instances when the claimant can be charged with the liability that comes along with the losses and damages involved, for example when such damages are foreseeable.[10]  Under such circumstances and based on the principles of novus actus interveniens, the jury is able to establish that there was a break in the chain of causation. For the claimant to be held responsible for the losses and damages, it must be established that the decision of the victim was reasonable based on the pertinent circumstances.[11]  In this regard, the claimant must be proven to be in a sound stable state of mind during the action under investigation. If the claimant was in the right state of mind, then the jury will be able to establish that the action was not reasonable and, hence, breaking the chain of causation. In such cases, the claimant will be held responsible for the damages suffered.

If the action leading to the damages was reasonable and made when the claimant was in an unstable mental state, the defendant will be held responsible by the jury. This is because, in an unstable state of mind, the claimant cannot be said to have broken the chain of causation. Here, it is purely the actions of the defendant that contribute to the damages. An example of where it was established that the defendant was responsible for the actions of the victim is illustrated in the case Royal v The Queen (1991) 172 CLR 378 as explained by Brown et al.[12]   In this case, the defendant was held responsible for the death of the victim because the chain of causation was not broken. The defendant assaulted the deceased in their apartment after an argument, and the deceased jumped through the window to avoid harm caused by the defendant. Similarly, Annie was in an unstable state of mind as a result of intoxication from tequila that she drank; hence, she could not see and avoid the awful mess like the other did.


Rights and Remedies

Based on the data given in the case study, the right and remedy that Annie is entitled to are the compensation for the damages that she as suffered as a result of the injury on her lower back. Damages refer to the financial compensations that are given to the claimant by the defendant as a result of the injuries suffered due to a breach of the duty of care.[13]  There are several types of damages that Annie can claim compensation, and I would advise her to settle on the following as remedies for her injuries.

The first remedy is the pecuniary loss, which is a type of damage that come as a result of an actual and future loss in financial income as well as other expenses that are associated with the tort of negligence such as traveling and medical expenses. The plaintiff is entitled to the recovery of all the expenses that are reasonably incurred as a result of the injury. In the case study, Annie reasonably incurred expenses of clearing her medical bills. She will also incur expenses of traveling to the hospital for check-ups in the near future. Therefore, as a remedy, she will need to be compensated for accrued expenses as a portion of special damages. Besides this, all the future expenses should be calculated and awarded to her accordingly.

Annie is also entitled to non-pecuniary damages, which are compensations for significant pain and sufferings experienced by the plaintiff.[14]  In the case study, Annie suffers a fracture at her lower back, and this makes her vulnerable to a lot of pain during the treatment and healing process. Therefore, Brett should compensate her for the actual and prospective pain and suffering. Annie has the right to be compensated for the actual and prospective loss that she will suffer now that she will not be able to do her part-time job. According to the case study, the fracture at the lower back will keep Annie out of work for at least six months.


In conclusion, the case study above is a case of a tort of negligence. The legal issue and ethics involved in this scenario is a case of negligence. Brett was legally bound by the duty of care to protect all the clients of Tavern bar from suffering any injury within the bar; however, it is due to his breach of a duty of care that Annie suffered a fractured lower back. Annie can sue Brett on the claims of negligence. Brett did not take the responsibility of cleaning the awful mess while he could reasonably foresee that is posed a danger of causing injury to clients entering or leaving the bar. The omission caused the fall and the fracture of Annie’s lower back. As a result, she has suffered losses that should be compensated. As a result, the remedies involved in the case study include pecuniary and non-pecuniary damages that she has suffered from medical expenses. This also includes losses suffered from the pain and suffering as a result of the fractured lower back.



Anderson, John, Criminal Law Guidebook (Oxford: Oxford University Press, 2010)

Arenson, Kenneth J, ‘Causation in the Criminal Law: A Search for Doctrinal Consistency’ (1996) 20 Crim LJ 189

Brown, David et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (Annandale, NSW: Federation Press, 5thed, 2011)

Carver, T. and Smith, M., 2014. Medical Negligence, Causation and Liability for Non-disclosure of Risk. UNSW Law Journal Volume, 37(3), pp. 972-1018.

Colvin, Eric, ‘Causation in Criminal Law’ (1989) 1 Bond Land Review 253.

David, Hillel, W. Paul McCague and Peter F. Yaniszewski, ‘Proving Causation Where the But  For Test Is Unworkable’ (2005) 30 The Advocates’ Quarterly 216.

Finch, Emily and Stefan Fafanski, Criminal Law (London: Pearson-Longman, 2011)

Lanham, David, David Wood, ‎and Bronwyn Bartal, Criminal Laws in Australia (Sydney, NSW: The Federation Press, 2006) 

Mchugh, Michael, ‘Introduction: Sydney Law Review Torts Special Issue’ (2005) 27 The  Sydney Law Review 385.

Raz, J., 2010. Responsibility and the Negligence Standard. Oxford Journal of Legal Studies, 30(1), pp. 1–18. doi:10.1093/ojls/gqq002

Schaffer, Jonathan, ‘Contrastive Causation in the Law’ (2010) 16 Legal Theory 259.

Shute, Stephen, ‘Causation: Foreseeability v Natural Consequences’ (1992) 55 The Modern Law Review 584. 

Stapleton, Jane, Law, Causation and Common Sense (Oxford: Oxford University Press, 1988)

Strong, S. I and Liz Williams, Complete Tort Law: Text, Cases, and Materials (Oxford: Oxford   University Press, 2nded, 2011)

Stychin, C., 2012. The Vulnerable Subject of Negligence Law. Internatonal Journal of Law in  Context, 8, pp. 337-353. Doi: 10.1017/S1744552312000249

Waller, Peter Louis, and Charles Robert Williams, Criminal Law: Text and Cases (Sydney, NSW: Butterworths, 11th ed, 2009)

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