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How to Conduct Reliable Physical Injury Case?


i)    Whether Peter can bring a successful claim against Watch out Point (WP) which is under the responsibility of Willow Council for the physical injury caused to him?

ii)    Whether Mark will be able to bring a successful claim against the wine company for the injury sustained by him because of the special cap on the wine bottle.  


The legal discretions of Australia provide three basic fields for negligence. ALL of them come under the tort of Negligence (McBride et al. 2008). The law states that every negligent has a duty of care, so that no harm is reached due to his actions. There are three fields that come under the categorization of the act. These are

  • Duty of care
  • Breaching of the act
  • Damage reached due to the action of the person.

These three factors decide and settle the claim from the suite maker. So, through a thorough discussion on the act of Peter on the case according to the act is the only weapon to decide, whether he will get an edge on the case or not.

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Duty of care – the legal aspect of duty of care says that a defendant in any suite must not be harmful for any other person. The concept of the part of the act was established through Wyong Shire Council v Short (1980). Peter was injured from the incident and has undergone some serious damage. There has been no report of any other injury. So it is quite relevant that Peter was free from the claim in the aspect of the caring duty. Peter has been in the area and that also at a drunken condition, but that is not a deciding factor.

Breach- The duty of care is somehow not carried out. Thus Peter will have to face the conviction. Thus peter may be considered wrongdoer and may be convicted for violating the law of breach. So, there may be some compensation for damage, but he may not be treated as a victim in the case. 

Damages – Damage according to book of law means the damage to the destination or the protected location for the reason of the wrongdoer (Geistfeld, 2008). Since Peter has been so close to the location, the damage is well predicted. Moreover the damage is seen by the naked eyes also.  Thus the damage of the applicant can easily be proved at the court room easily. You can also check out the Overseas Tankship (UK) Ltd v Morts Dock Engineering Co Ltd (1961).  (Negligence, 2006)

Reasonable predictions- According to Sullivan v Moody (2001) that the court referred for reasonable predictions under the damage section of the act, a complainant may get the damage or injury due to his own actions. This may refer that he will not be referred as a victim under such condition. 

Propinquity- According to Jaensch v. Coffey (1984), court submits the proximity, which says that when two objects are very close to each other, then one object is sure to give some damage to the others. This refers that if there is absence of any damage, then that will also be referred as a null case of negligence.

The obligation of care is also at period measured to breach when the level of benchmark that is usual from the deed achiever is not accepted. Refer Bolton v Stone (1951) for further knowledge about the fact. The pattern varies with condition to condition. An example of the statement can be the case of the children, where chances of damage to the plaintiff are much more. 
Fair, just and reasonable- the task of think about must always be imposed on the deed doer only when the obligation is fair from the legal aspect. Thus no indecent poverty must be cause to the activity doer (Puttick, 2007).

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On concluding the above scenario it can be hence put that the case of Peter was that of a drunken adventure that he undertook in order to enhance the fun of the moment and the celebration. The cliff was a part of the scenic beauty that the visitors were attracted towards. In the process however the people had to maintain their own safety to keep the enjoyment and the fun alive. The case can be claimed as a factor of negligence in the part of Peter as he was the one who kept the matter of safety aside. The willow council can be held partly responsible in the matter of Peter as though the cliff was a case of scenic beauty, yet they were required to fix a warning sign on the particular spot to at least warn the visitors. There must have been previous instances of happenings of the same kind. At the same time it was also a case of Peter’s negligence. The negligence of tort in the terms of law can be placed over this case. Negligence as it refers to mere carelessness, in the eyes of law refers to the failure to exercise the normal duties as a reasonable man. The tort also talks about the harm that can be caused due to the less or negligible precautionary steps (Fallon, 2009). Peter can however file a case against the Willow Council for being negligible in the terms of the owner and not putting a warning board whereas it was well aware of the possible happenings that can take place in the particular place.


With regards to the second case of Mark, it is mentioned that the champagne bottle had a particular form of cap in the bottle. The scrutinisation of the facts state that according to the Australian law book, the laws that would guide are the case of product liability and that of the tort of negligence. Progressing with the case of the liability of product, the matter refers to the manufacturer being responsible for the products in the hands of the customer and in the case that the product has caused any kind of harm post its purchase (Sappideen et al. 2009). The champagne bottle that the trio had, had a special kind of cap that though was used by the maximum of the wine vendors was required to be opened in the other manner, different from the normal bottles of champagne. However the bottle was the one that was prone to causing harem and injury to the person using, in case the person is a bit negligent about the use of the bottle. However the product liability applies in the case of the product being defective at a point of time as undertakes the case of “strict liability”. In the case of a strict liability of the product, the plaintiff does not need to prove that the manufacturer is responsible but the fact that the product is defective in some kind or the other. At the same time, the concept of product liability holds onto the factor when either of the parties has been negligent enough.

As product liability marks the relationship with the factor of negligence to be on the either part, the tort of negligence has its implication ion the same (Keenan, 2007). Mark was negligent of opening the bottle cap and it is obvious from the lifestyle and the parties that he was a regular at the bottle.  In that case it is a fact that Mark should know about the type of bottles and the caps that most of the people use. In that case again, it is evident for him to know the right technique of opening the bottle cap as it was used by most of the wine makers. On the part of the manufacturers, since they are in the process of using a special kind of bottle cap, they must be of the knowledge that they are harmful and might end up hurting the user in the case of the one being negligent about the process. There is supposed to be a warning label on the bottle that should be working as a precautionary warning on the part of the user. The label must have been put in the visible position and provide the most minimum required message. That is a faulty on the part of the manufacturer or the one who is responsible for the packaging and the selling of the product. Hence the concepts of the liability of product and the negligence of tort can be applied simultaneously in the above issue. Mark can file a case against the wine manufacturers for the use of the particular form of dangerous caps and not issuing a warning label. The case of negligence applies to him as well as the user of the product (, 2015). 

On concluding the above case, it can be put forth that the case of Mark can be put under the banner of negligence as well as the liability of the product. The packaging of the product is a defective one and the way that the product was being used was an impractical way. Just as the makers are expected to put a minimum banner of danger, same way the user is expected to be proper in the process of use. 


Keenan (2007) Smith & Keenan's English Law (15th edn), Pearson Longman

Sappideen, Vines, Grant & Watson, (2009), Torts: Commentary and Materials, Lawbook Co, 10th ed, pp. 374-5

Fallon, Theresa A. 'The Battle Over Product Liability Law Reform'. pp 4.1 (2009): n. pag. Web.

Geistfeld, Mark. Tort Law. Austin: Wolters Kluwer Law & Business, (2008). Print.

McBride, Nicholas J, and Roderick Bagshaw. Tort Law. Harlow, England: Pearson/Longman, (2008). Print., 'Product Liability'. N.p., (2015). Web. 29 Jan. 2015.

Puttick, N. 'Strict Product Liability Arrives'. BMJ 296.6626 (2007): 933-933. Web.

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