Irac of Negligence Essay examples

1481 Words Sep 16th, 2011 6 Pages
Introduction:
In Rebecca & ‘Zorba’s’ Restaurant case, the main issue is whether negligence exists of the defendant? There are three prerequisites must be present before the tort of negligence can arise: a duty of care must be owed by one person to another; there must be a breach of that duty of care; and damage must have been suffered as a result of the breach of duty. (FoBL, 2005, p70) In addition, another element must be satisfied to prove negligence is the causation. This essay will analysis Rebecca v. ‘Zorba’s’ with these four issues.

IRAC Process No. 1
Does ‘Zorba’s’ Restaurant own a duty of care to Rebecca Disasteropoulos?
There are two common factors that must exist before the law says a duty of care exists, which are
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Multi-Sport Holdings Pty Ltd[7] could prove this element.

The last factor is the social utility of the defendant’s conduct, which means the benefit of conduct must be assessed against the gravity of the risk of injury; the case of Watt v. Herfordshire[8] case set an example to this factor. In this case, there is no relevance to this factor.

As a result, the supplier of ‘Zorba’s’ Restaurant did not conduct the sufficient action to remove the potential risk to the customers, and the restaurant did not put any warning like notice board to admonish their customer, it is most likely that the restaurant had been breached of the duty of care.

IRAC Process No. 3
Does the defendant’s breach of duty cause the loss sustained by the plaintiff?
The third element that must be satisfied to prove negligence is the causation of the damage.

To determine the issue of causation, the law has created a test called ‘but for’ by Lord Denning in the case of Cork v. Kirby Maclean Ltd[9], ‘If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is no a cause of the damage.’ (FoBL, 2005, p78)

In this case, the injury of Rebecca was caused by the lack of care of the restaurant. The waiter did not remove all the liquid off…

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