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MCD1380 Introductory Law

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MCD1380 Introductory Law

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MCD1380 Introductory Law

1 Download5 Pages / 1,084 Words

Course Code: MCD1380
University: Monash University

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Country: Australia

Questions:
1.Issue: Duty of Care?
 
Rules: Foreseeability and Neighbour Application of the aforementioned to the case 
2.Issue: Breach? (i.e.. what’s the standard of care?)
 
The standard of care required to be exercised is the standard of care expected from a reasonable person placed in the same circumstances as the defendant
 
Perfection is not required or expected
 
The objective test of a ‘reasonable person’ is applied
 
Weighting Test
 
• The likelihood of injury
 
• Gravity of injury if occurring
 
• Steps needed to remove the risk
 
• Benefit (social utility) of the defendant’s conduct 
 
3.Issue: Damages?
 
Rules: Causation and Remoteness
 
Defenses? VAR? CN? 
Answers:

1.Issue 
The issue is whether the Peter has the responsibility towards the Gino.
Rules 
Duty of care is based on the two aspects, the first one is foreseeability and the other one is the proximity. If the both elements are present in any situation then the duty of care will be allocated (Hopkins, 2015). For the action taken against the negligence it must be foreseeable that the activities of the defendant could harm the plaintiff. Proximity refers to the connection between the parties for the establishment of the duty of care (Luntz, & et.al 2017). The relation may be the direct or indirect. Along with this, the neighbor refers as the person close to them who directly affected by the activity or the omission, therefore the person reasonably makes the observation at the time any activity.
Applicability 
In the given study there exist the relation between the Pilot and the passengers of the flight as the passenger rely on the pilot for the safe journey. The passengers are person who gets directly impacted by the activity carried out by the pilot; therefore the pilot must make the observation before any activity carried on by him. Further in this study, it has been stated that the Peter was notified by the Civil Aviation Safety Authority to carry enough fuel to reach the destination along with the reserve fuel. However Peter due to the delay in departure did not meet the requirement to carry reserve fuel. Due to this, Peter has to conduct an emergency landing on the sea and by which the Gino harmed.  
Conclusion 
On the basis of the above analysis, it has been concluded that the peter owe the duty of care towards the Gino as the both elements such as foreseeability and the proximity is present in the case.
2.Issue 
The issue is whether the Peter breached the duty of care.
Rules 
For establishing the breach of duty, there is some circumstance which is required to be present. The one of the aspect is the standard of care. Standard of care defined as the, reasonable care is expected from the person if he/she at the same place or the same condition as the defendant (Levine & et.al 2016). However this condition does not required the perfection. Further the standard care is evaluated on the basis of some legal standard which is known as weighing test. Further it is the responsibility of the plaintiff to establish the breach of duty. Along with this, reasonable steps must be taken by the person for the prevention of any injury (Goldberg, Sebok, and Zipursky, 2016). Further under the objective testing, it does not matter if the actual defendant did not forecast any probability of the injury if a reasonable person would forecast. For the determination of occurrence of breach some factors are to be taken into account by the court, such as the probability of harm, severity of injury if occurring, steps required to eliminate the injury and the benefit from the conduct of defendant (Best, Barnes, and Kahn-Fogel, 2018).
Applicability 
 In the given study, Peter did not follow the requirement of the CASA and not carry the extra fuel. However as a Pilot Peter must take care about the regulations and also evaluate the impact if any event happens due to the avoidance of the guidelines given by CASA. As a reasoble person it is expected from the pilot to carry the reserve fuel in the flight. Further by applicability of objective test it does not matter whether the Peter forecast any injury or not. Along with this, under the weighing test the probability of the injury with the severity of injury is evaluated. However for the elimination of the injury, there are many services offered in the flight such as seat belt, oxygen mask and so on.
Conclusion 
On the basis of the above analysis, it has been concluded that the Peter breach the duty of care. Since only by delaying the flight for some time, the Peter can take the extra fuel. However due to this, life of the passenger falls into danger.
3.Issue 
The issue is whether the Peter is liable for the damages for the Gino.
Rules 
Damages for the losses are granted only if the damages are in criteria of the defendant. The main objective of awarding the damages is to compensate the loss to the plaintiff (Ben-Shahar, and Porat, 2016). The breach of duty by the defendant must results in the loss suffered by the plaintiff. All the economic losses, damages are granted. In many cases, in case of the negligence penalty damages are also imposed (Keating, 2015). The amount of damages depends on the significance of the injury. Contributory negligence arises out of the negligence by the plaintiff himself; in this case the damages will be awarded proportionately. Further if the plaintiff voluntary make the assumption of the total risk of harm then defendant will not liable for any damages (Fulbrook, 2017).
Applicability 
In the given study, Gino must prove that due to the negligence of the peter, injury and losses were suffered by him.  However in this case, Gino is also liable under the contributory negligence as Gino has panicked and undone his seatbelt and was thrown forward. Due to this, he physically got harmed.
Conclusion 
On the basis of the above study, it can be concluded that the Peter is liable for the amount of damages to the Gino. However, only economic losses will be covered under the damages. Further due to the contributory negligence, the proportionate damages will be granted to Gino.
References 
Ben-Shahar, O. and Porat, A., 2016. Personalizing Negligence Law. NYUL Rev., 91, p.627.
Best, A., Barnes, D.W. and Kahn-Fogel, N., 2018. Basic tort law: cases, statutes, and problems. Wolters Kluwer Law & Business.
Fulbrook, J., 2017. Outdoor activities, negligence and the law. Routledge.
Goldberg, J.C., Sebok, A.J. and Zipursky, B.C., 2016. Tort Law: Responsibilities and Redress. Wolters Kluwer law & business.
Hopkins, A., 2015. The Need for a General Duty of Care. Hous. J. Int’l L., 37, p.841.
Keating, G., 2015. Is Negligence Law Less Objective than We Think. Jotwell: J. Things We Like, p.137.
Levine, L.C., Vetri, D., Vogel, J. and Gassama, I.J., 2016. Tort law and practice. Carolina Academic Press.
Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G. and Harder, S., 2017. Torts: cases and commentary. LexisNexis Butterworths.

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