LEGISLATIVE FRAMEWORKS - Essay Example

The reasonable man test1 has been used to establish the duty of care in most cases. In Adeels Palace Pty Ltd v Bou Najem, the court established that the owner of licensed premises owes a duty of care to all patrons of the premises to prevent them from harmful acts of other patrons. The defendant should have breached the duty of care owed to the plaintiff for liability in negligence to arise. The defendant is in breach of the duty where he fails to exercise reasonable care while fulfilling the duty.

Establishing breach is a question of fact in most cases.2 In Doubleday v Kelly, the court established that failing to supervise a child who would probably engage in s harmful activity amounted to a breach of the duty of care. The defendant’s action should have been the proximate cause of the injuries suffered by the plaintiff. The defendant becomes responsible for those injuries that he could have foreseen under the circumstances of his actions.3 Otherwise, the plaintiff cannot prove that the actions of the defendant were the proximate cause of the injuries suffered.

In Imbeere v McNeilly, the court established the standard of a learner driver, stating that the supervisor should take reasonable care to avoid causation of accidents. The harm or injury caused to the plaintiff must be legally recognized. The harm should be physical to a person or the person’s property. The damages must be actual4 to the person owed a duty of care. Driving on public lanes and roads means that the driver has a legal duty to all other drivers, motorists, cyclists, and pedestrians.

Phil, therefore, owed a duty of care to Collins as a cyclist on the road. Phil failed to exercise reasonable care in fulfilling his duty as a driver. Before taking a move, he should have looked at the persons beside, in front, and behind him to ensure no accident occurred. This breach is the proximate cause