Argument Against Negligence

1268 Words6 Pages
This is a case concerning negligence. The plaintiff, Mr. Davis’s wife, wishes to bring this case to the court under negligence law because of the death of her husband in a car accident. There are two defendants in this case. The first defendant, GM Holden Ltd, is a car manufacturer. The second defendant, Brown’s employee, is a truck driver.
The negligence is alleged to arise from the fact that there was a defect within the alternator had caused the truck stalled on the freeway. Driving a hatch-back at freeway speed was Mr. Davis, who was unable to see the stalled truck, causing his death.
I. Issue
The issues for determination on liability under negligence law is whether GM and Brown’s employee would be liable for the negligent act or omission to act? In other words, did GM Holden Ltd. and Brown’s employee owe duty of care? If so, was there a breach of duty? If so, what damages should be awarded? Finally, possible defenses available to the defendants will also be considered to prevent the court from ruling in the plaintiff’s favor.
III. Applications
GM
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The first defense is based on the principle of vicarious liability. According to Hollis v Vabu Pty Ltd [2001] HCA44, the truck driver, an employee of Brown, can shift his liability to his employer. The key issue was whether the activities of the employee in committing the tort could be said to be within the scope of his employment. The second defense is based on contributory negligence. This situation is similar to the fact in Joslyn v Berryman [2003] HCA34. The plaintiff’s husband had failed to take proper care for his own safety as he was driving ‘immediately behind the panel van’, therefore, causing his death. In spite of driving at freeway speed, Mr. Davis should have kept a proper following distance behind any vehicle. This argument can be used to reduce the liability of the truck’s driver, thus, reduce the paid amount for
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