Commercial Law: Negligance Of Product Essay


Describe about the Commercial Law for Negligance of Product.



Rebecca and Michelle visited a bar and consumed wine there. Michelle was too drunk and was driving the car while returning. Eventually, she ended up driving dangerously and in spite of repeated warnings from Rebecca, continued driving and subsequently crashed the car. Rebecca sustained serious injuries because of this and thus wanted to sue Michelle for negligence. This issue shall be discussed in this assignment.


There are certain issues that arise in this matter. These can be identified as under:

Whether the requirements of the tort of negligence are satisfied in the given situation?

Whether Rebecca can sue Michelle for being negligent in the matter?


The tort of negligence can be defined as a failure on the part of the defendant towards exercising the care that would have been taken by a reasonable, prudent man in similar circumstances (Gnych v Polish Club Limited, [2015]). The harm that is caused because of this failure to the plaintiff must be a direct cause of the matter, and it should have been foreseeable in the matter.

Thus, it can be said that there are four elements of substantiating a claim of negligence (, 2016). These are that the defendant should have a duty of care towards the plaintiff. The defendant should make a breach of that duty of care that was owed to him; the breach should have resulted in some damage to the plaintiff; and the damage that is caused should not be remote in nature (Oberdiek, 2013).

However, it should also be noted that there are certain defenses that can be taken by the defendant whenever a suit of negligence is initiated against him (Bolton v Stone, [1951]). These defenses are also substantiated under the Civil Liability Act in Australia. Under section 23 of the Act, it contributory negligence is proved in any matter, then the liability of the defendant comes down substantially (Fletcher, 2008).

Intoxication is one of the grounds that can attract a presumption of contributory negligence under Section 5 of the Civil Liability Act (Salmond, 2011). The court has the powers to reduce the damages by 100% in such instances. However, it should be noted that the courts determine the question of contributory negligence by facts (Charlesworth and Percy, 2012). There are two stages involved in this process. While the first determines the negligence on the part of the plaintiff, on the second level, a percentile value is assigned to the same (Marcolongo v Chen, [2011]).

Further, Under Section 16 and 17 of the Civil Liability Act, obvious risks and voluntary assumption of risk have been substantiated to be grounds of negligence. It has been stated that only if a person can prove that he was unaware of the risk, then can he say that there was no contribution towards the risk (, 2016). Also, if a person understands that there is an obvious risk in any matter, then the same should be seen from the perspective of a reasonably prudent person and the knowledge of the presence of such risk. It substantiates a claim that the plaintiff himself is responsible for negligence, and the defendant is not liable in the matter (Cooke, 2007).


The above-discussed rules shall now be applied in the given scenario and then an analysis of the same shall be made. Michele and Rebecca were drunk. They consumed a lot of wine out of their wish. While they were coming back home, technically, it could be said that driving on the part of any of them could have been negligent. In spite of knowing that they had consumed alcoholic beverages, they chose to drive their vehicle, and this apparently proves the negligence on both of their parts. Subsequently, Rebecca realized that the condition of Michelle was worse and was driving dangerously. This proves that Rebecca was aware that Michelle was not capable enough to drive on that particular night. Moreover, before when the drive back home commenced, Rebecca had already realized that Michelle was too drunk. Thus, it can be said that it would have been justified on her part not to accept the fact that Michelle would be driving. But she chose the other way round and accepted a ride home anyway. Thus, it can be conclusively said on this point that Rebecca contributed to the negligence.

It is not being argued that there was no negligence on the part of Michelle. She owed a duty of care towards Rebecca, and she also made a breach of that duty care which any other reasonable, prudent person would not have made. It is also understood that all the damages that Rebecca faced were because of the negligence on the part of Michelle and there was no remote aspect to the problems undergone by her. But at the same time, it is also being argued here that Rebecca had a liability of contributory negligence in the matter because, in spite of knowing that Michelle was not competent to drive on that night, she chose to take the ride. Moreover, the risk that is associated with the matter is very obvious, and the acceptance of the risk by Rebecca also indicates the voluntary acceptance of the risk by her. Any prudent and reasonable person would have understood the risk that is being inflicted when Michelle is executing the act of drunk driving, and even then Rebecca herself acceded to the risk. This also substantiates the contributory negligence on the part of Rebecca that is being argued in the matter. Eventually, the car met with an accident, and Rebecca underwent several injuries including a broken leg. In such circumstances, even if Rebecca asks for compensation from Michelle for her injuries, those claims cannot be substantiated because of her contribution to the negligence of Michelle.


Thus, from the above discussion, it can be concluded on the following points:

That Michelle is liable in the matter of negligence;

That though Michelle is liable for negligence yet Rebecca cannot claim for the indemnification of losses from her because of her contributory negligence in the matter.


Bolton v Stone [1951] AC p.850.

Charlesworth, J. and Percy, R. (2012). Charlesworth & Percy on negligence. 9th ed. London: Sweet & Maxwell. (2016). [online] Available at: [Accessed 5 Sep. 2016].

Cooke, P. (2007). Law of tort. Harlow: Longman.

Fletcher, G. (2008). Tort liability for human rights abuses. Oxford: Hart Pub.

Gnych v Polish Club Limited [2015] HCA p.23. (2016). Defences to the Tort of Negligence | Hobart Community Legal Service. [online] Available at: [Accessed 5 Sep. 2016].

Marcolongo v Chen [2011] HCA p.3.

Oberdiek, J. (2013). Philosophical foundations of the law of torts.

Salmond, J. (2011). The law of torts. London: Sweet & Maxwell.

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