Oct 02, 2017 term paper 2

Commercial Law System

This paper concentrates on the primary theme of Commercial Law System in which you have to explain and evaluate its intricate aspects in detail. In addition to this, this paper has been reviewed and purchased by most of the students hence; it has been rated 4.8 points on the scale of 5 points. Besides, the price of this paper starts from £ 40. For more details and full access to the paper, please refer to the site.


Mark, Peter and Mary were out on a Saturday night celebrating the successful formation of a new business venture. They went to a special restaurant up in the hills, Hilltop Point, to mark this occasion. After a great night of eating and drinking, they decided to continue their party at Watchout Point, a scenic hilltop spot with a spectacular view of the city. On their way, they stopped at a bottle shop to buy 2 bottles of premium French champagne.When they reached Watchout Point, they parked the car at the car park which was located at the top of the cliff. There was a 2 meter fence to prevent people from going beyond that point as it was not far away from the cliff edge. There were no warning signs but the cliff was very visible. Anyone can very clearly see the cliffs. In fact, the cliff was part of this beautiful scenery which attracted visitors.At first, the trio sat in the car and chatted and drank champagne. As the night progressed Peter, who had too much to drink, got out of the car and dared theothers to climb over the fence and walk to the edge of the cliff. While the otherswere reluctant, Peter climbed over the fence and walked to the edge of the cliff.He lost his balance and fell off the cliff and broke his leg. Peter wishes to sue theWillow Council who is responsible for Watchout Point.What must Peter do to establish a breach of duty by Willow Council? Is Peter likely to succeed in establishing such a breach? Give reasons for your answer.


Issue: the issue in the present case is if Willow Council is liable for John’s injuries after felling from the cliff as he crossed over the fence that the council has installed. Therefore, Willow Council’s liability under the tort of negligence needs to be decided as well as the question if the Council has failed to take reasonable steps which could have prevented people from falling off the edge. Another issue that needs to be decided is if Willow Council owes a duty of care towards John. There is another issue in the present case which is associated with the liability of the manufacturer of champagne bottle. The bottle of champagne had a different type of cap and while opening it, Mark was hit by the cock stopper.

Rule: In order to decide the issue of liability of Willow Council, it needs to be seen if the Council has a duty of care towards John. In the same way, it also needs to be seen if the duty of care has been violated by the Council and the injuries suffered by John can be attributed to such breach of duty and the injuries suffered by John by the reasonable foreseeable consequence of Council`s action or inaction. Generally, in such cases, compensation can be claimed by using the doctrine of duty of care. In this regard, the doctrine of duty of care provides that a party can be considered as liable under the law of negligence towards the other party. The neighborhood principle has also been provided by the court in Donoghue v Stevenson (1932) where Lord Atkins mentioned that a party should take reasonable care in order to avoid the acts or omissions that may cause injury to the neighbour of the party.

The court sees in these cases if there is reasonable proximity between the claimant and defendant. Similarly, the court also asked to see if the damage caused by the act or omission was reasonably foreseeable by the defendant. It is also considered by the court if under similar circumstances, the risk of damage could have been foreseen by any reasonable person. Another requirement is to see that if it would be reasonable on part of the defendant to impose their duty of care. The concept of duty of care has been elaborated in Blyth v Birmingham Waterworks Co. (1856), where the court identified that the negligence of the defendant needs to be decided with the help of the standard of reasonable person. Thus, a party cannot be said to be negligent if the party has taken all the reasonable precautions and at the same time, the conduct of the party is according to the standard of any other reasonable person under similar circumstances (Sappideen, 2009).

In the same way, the test for deciding the presence of duty of care was mentioned in Caparo Industries plc. v Dickman (1990). According to this test, it is considered it the injury or the loss of the claimant is the reasonably foreseeable result of the conduct of the defendant. But at the same time, the courts also have to look for the presence of a relationship of sufficient proximity or in other words, neighborhood, between the parties. Similarly, the courts have to see if under the circumstances of the case, it will be reasonable to impose liability on such party.

The law states in such cases that usually, the duty of care is not present if steps have been taken to minimize or prevent the harm that may be caused to the other party. But if a person has created a dangerous situation, even blamelessly, the duty of care provides that care should be taken to avoid injury or loss to others. For example, a person has left his or her car on the road with the headlights off. Therefore, the duty of care provides that even if the road was well lit, such person has a duty towards other drivers on the road. Therefore, if another car collides with the stationary car, such person can be held jointly liable. On the other hand, under some circumstances, a person can be considered as liable for pure omissions also (Wyong Shire Council V. Shirt, 1980).

Therefore, when a previous relationship is present, a body can be held liable. Similarly, a statute may also impose such a relationship among the parties.

So far as the second issue is concerned, the Court has stated in Donoghue v Stevenson that the tort of negligence is a separate tort in itself. According to the law, civil action can be taken by the plaintiff in case of a loss or injury that has been suffered due to the negligence of the respondent. Before Donoghue v Stevenson (1932), in order to establish negligence, it was necessary for the plaintiff to establish a contractual agreement between the parties which included the sale of goods or services. But the drink was not purchased by the plaintiff in this case and therefore a contractual relationship could not be established. But in its judgment, the court stated that the manufacturer of the drink can be considered as liable. Therefore, the law provides that a duty of care is present on part of the manufacturers of products towards the consumers who ultimately consumed the product (Keenan, 2007). According to the neighbor principle divided by Lord Atkins, a neighbor can be considered as a person who is directly affected by the actions of the other party. Therefore, the court stated that the other party is required to take care and avoid the actions that can be reasonably foreseen by such party to injure the neighbor.

Application: By applying the above stated legal principles to the present case, it can be said that Mark, Peter and Mary have consumed two bottles of champagne when they were celebrating the completion of their education. After consuming the champagne, Peter climbed the fence and went towards the edge. At this point, he lost his balance and as a result fell from there. Due to the fall, he broke his leg. As a result, he wants to sue the Council has he believes that the council has been negligent as it had failed to take reasonable precautions so that the people can be prevented from falling off from the cliff. Therefore, Peter claims that the Council has breached its duty of care towards Peter. On the other hand, Willow Council had created a fence in order to stop the visitors from going towards the edge of the cliff due to the danger that they may fall from the edge. But it needs to be noted in this case that although cliff was visible, no warning signs have been installed on that place. Another point another point that needs to be mentioned is that when Peter fell from the cliff, he was drunk.

In the present case, Willow Council was aware of the fact that due to the scenic beauty of the place, a large number of people came there. These people faced the risk of falling off in case they went near the edge.

Regarding the issue of liability of the manufacture of champagne bottle, it needs to be seen if the manufacturers had reasonably discharged its duty to warn the ultimate consumers by informing that the cap of the bottle was of a special type and therefore, a person may receive injury if the water was not opened properly. However, in this case, the manufacturer of the champagne bottle has not provided any warning on the bottle due to which, Mark suffered an injury when he was trying to open the bottle and the cock stopper hit his nose.


On the basis of the above-mentioned discussion, it can be said that Willow Council can be held liable for the injuries suffered by Peter. The Council did not take all the reasonable precautions in this case as it was reasonably foreseeable for the council that a large number of people visited that place and any person may fall off the cliff. So far as the second issue concerning the liability of the champagne bottle manufacturer is concerned, the manufacturers can also be held liable as the duty of care has been breached in this case. As no warning has been provided by the manufacturer on the bottle in order to on the consumers that the cap of the bottle is of special type and the consumers may suffer an injury if they do not handle the cock stopper properly. Therefore in this case, Mark can succeed in case he decides to sue the wine company.

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