HOW LIABILITY IS DETERMINED FOR NEGLIGENCE
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HOW LIABILITY IS DETERMINED FOR NEGLIGENCE. DUTY OF CARE. STANDARD OF CARE. CAUSATION. CAUSATION. WHETHER THE DEFENDANT'S ACT OR OMISSION WAS THE CAUSE OF THE PLAINTIFF'S INJURIES OR HARM SUFFERED?. SIMPLE TEST DEVELOPED TO DETERMINE CAUSATION IS THE " BUT FOR " TEST.

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HOW LIABILITY IS DETERMINED FOR NEGLIGENCE

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How liability is determined for negligence

HOW LIABILITY IS DETERMINED FOR NEGLIGENCE

DUTY OF CARE

STANDARD OF CARE

CAUSATION


How liability is determined for negligence

CAUSATION

WHETHER THE DEFENDANT'S ACT OR OMISSION WAS THE CAUSE OF THE PLAINTIFF'S INJURIES OR HARM SUFFERED?

SIMPLE TEST DEVELOPED TO DETERMINE CAUSATION IS THE "BUT FOR" TEST

QUESTION FOR THE TEST:

BUT FOR THE DEFENDANT'S ACTIONS OR OMISSIONS, WOULD THE PLAINTIFF HAVE SUFFERED DAMAGE?

ONUS OF PROVING THIS IS ON THE PLAINTIFF


How liability is determined for negligence

BARNETT v CHELSEA HOSPITAL

FACTS: P's HUSBAND BECOME ILL AFTER DRINKING SOME TEA - WENT TO THE DEFENDANT HOSPITAL BUT DOCTOR ON CALL WAS HIMSELF NOT WELL & ASKED THE NURSE TO TELL HIM TO GO HOME AND SEE HIS OWN DOCTOR - THE MAN WAS IN FACT SUFFERING ARSENIC POISONING & DIED

HELD: HOSPITAL OWED A DUTY OF CARE AND WAS IN BREACH OF THE STANDARD OF CARE BUT - IT WAS NOT LIABLE AS P DID NOT PROVE THAT BUT FOR THE HOSPITAL'S NEGLIGENCE HER HUSBAND WOULD NOT HAVE DIED


How liability is determined for negligence

IMPORTANT TO NOTE THAT THE HIGH COURT IN AUSTRALIA HAS EMPHASISED THAT THE BUT FOR TEST IS NOT AN EXCLUSIVE TEST FOR CAUSATION. OTHER TEST MAY ALSO BE USED. E.g. WHETHER THE DEFENDANT’S ACTS OR OMISSIONS CAUSED OR MATERIALLY CONTRIBUTED TO THE PLAINTIFF’S LOSS, DAMAGE OR INJURY

SEE ALSO L-4-130; GF-P.137

CORK v KIRBY MCLEAN LTD

YATES v JONES

LINDEMAN v COLVIN


How liability is determined for negligence

CIVIL LIABILITY REFORM LAW

CIVIL LIABILITY REFORM LAWS HAVE MODIFIED ‘CAUSATION’ AND NOW PROVIDE THAT TESTS SHOULD BE:

IF DEFENDANT HAD ACTED CAREFULLY WOULD PLAINTIFF HAVE SUFFERED HARM?

AND

IS IT APPROPRIATE FOR THE LIABILITY TO EXTEND TO THE HARM?


How liability is determined for negligence

HOW LIABILITY IS DETERMINED FOR NEGLIGENCE

DUTY OF CARE

STANDARD OF CARE

UNREALISTIC TO HOLD THE DEFENDANT LIABLE FOR A NEVER-ENDING CHAIN OF EVENTS - THEREFORE LIABILITY IS LIMITED BY THE REMOTENESS OF DAMAGE TEST

CAUSATION

REMOTENESS OF DAMAGE


How liability is determined for negligence

WAGON MOUND NO:1L-4-140; GF-p.140

CALTEX REFINERY

DOCKS

WAGON MOUND

OIL


How liability is determined for negligence

WAGON MOUND NO:1

TEST: DAMAGE MUST BE OF A TYPE THAT A REASONABLE PERSON WOULD HAVE FORESEEN AND IT DOES NOT MATTER THAT THE EXTENT OF DAMAGE WAS NOT FORESEEABLE

If YES - liable for that TYPE or KIND of reasonably foreseeable damage and EXTENT or AMOUNT of damage is immaterial

Is type of damage foreseeable?


How liability is determined for negligence

If YES - liable for that TYPE or KIND of reasonably foreseeabledamage and EXTENT or AMOUNT of damage is immaterial

Is type of damage foreseeable?

What is reasonably foreseeable?

DISCUSSED IN WAGON MOUND NO: 2

IF THERE WAS A REAL AND NOT A FAR-FETCHED RISK OF DAMAGE AND IT COULD BE ELIMINATED WITHOUT ANY DIFFICULTY, DISADVANTAGE OR EXPENSE THE DEFENDANT WOULD BE LIABLE


How liability is determined for negligence

OTHER RULES THAT MAY AFFECT DAMAGES

“THIN-SKULLED” OR “EGG-SHELL” RULE.

YOU MUST TAKE YOUR VICTIM AS YOU FIND HIM/HER

WOULD THIS RULE CONTRADICT THE REMOTENESS OF DAMAGE RULE AS PROPOUNDED IN WAGON MOUND NOS: 1 & 2?


How liability is determined for negligence

SMITH v LEECH BRAIN & CO LTD

FACTS: PLAINTIFF'S HUSBAND WAS A CRANE DRIVER AND SUFFERED A BURNT LIP FROM SOME MOLTEN METAL AT WORK. IT TURNED CANCEROUS AS HE HAD A SUSCEPTIBILITY TO CANCER - HE DIED

HELD:THE BURN WAS A FORESEEABLE CONSEQUENCE OF THE DEFENDANT’S NEGLIGENCE. THE DEFENDANT WAS LIABLE EVEN THOUGH THE DEATH, IN ITSELF, WAS NOT A REASONABLY FORESEEABLE CONSEQUENCE.


How liability is determined for negligence

SMITH v LEECH BRAIN & CO LTD

IT DID NOT CONTRADICT THE "THIN SKULL” RULE - ONLY TYPE OF DAMAGES MUST BE FORESEEABLE NOT EXTENT

TEST HERE WAS NOT WHETHER THE BURNS WOULD CAUSE CANCER BUT WHETHER THE NEGLIGENT ACT WOULD CAUSE BURNS? CONSEQUENCES WERE IMMATERIAL TO DETERMINE LIABILITY


How liability is determined for negligence

SMITH v LEECH BRAIN & CO LTD

ACCORDING TO WAGON MOUND NO:1

YES - the TYPE or KIND of harm (i.e. burns) was reasonably foreseeable

Is type of damage foreseeable?

What is reasonably foreseeable?

AS DISCUSSED IN WAGON MOUND NO: 2

THERE WAS A REAL AND NOT A FAR-FETCHED RISK OF BURNS BEING CAUSED BY THE NEGLIGENT ACT

DEATH WAS CAUSED BECAUSE VICTIM HAD A SUSCEPTIBILITY TO CANCER

EXTENT OF DAMAGE IMMATERIAL & THIN SKULL RULE APPLIED:

YOU TAKE YOUR VICTIMS AS YOU FIND THEM


How liability is determined for negligence

OTHER RULES THAT MAY AFFECT DAMAGES

NOVUS ACTUS INTERVENIENS

WHERE A NEW INTERVENING ACT TAKES PLACE AFTER THE DEFENDANT’S NEGLIGENCE AND IS THE “PROXIMATE” OR “ACTUAL” CAUSE OF THE PLAINTIFF’S DAMAGE


How liability is determined for negligence

HOW LIABILITY IS DETERMINED FOR NEGLIGENCE

DUTY OF CARE

STANDARD OF CARE

CAUSATION

REMOTENESS OF DAMAGE

DEFENCES


How liability is determined for negligence

DEFENCES

ONCE A PRIMA FACIE CASE HAS BEEN ESTABLISHED THE DEFENDANT CAN STILL RESIST, REBUT OR REDUCE LIABILITY BY RELYING ON A NUMBER OF DEFENCES

VOLENTI NON FIT INJURIA -

VOLUNTARY ASSUMPTION OF RISK

CONTRIBUTORY NEGLIGENCE


How liability is determined for negligence

VOLENTI NON FIT INJURIA -

VOLUNTARY ASSUMPTION OF RISK

L-4-170; GF-p.142

TO BE EFFECTIVE THE CONSENT MUST BE TO THE FULL RISK AND MERE KNOWLEDGE OF THE RISK IS INSUFFICIENT

IT IS A TOTAL DEFENCE AND THE PLAINTIFF WILL GET NOTHING IF IT IS SUCCESSFULLY ESTABLISHED BY THE DEFENDANT


How liability is determined for negligence

SMITH v BAKER & SONS

FACTS: P EMPLOYED BY D AS A BUILDING WORKER. HE WORKED IN A PLACE WHERE, OCCASIONALLY, A CRANE LIFTED ROCKS & STONES OVER HIS HEAD. HE WAS AWARE OF THE RISK POSED - A ROCK FELL & INJURED HIM

HELD: THE MERE FACT THAT P HAD FULL KNOWLEDGE AND UNDERSTANDING OF THE RISK DID NOT PRECLUDE HIM FROM RECOVERING THE DAMAGES - TO SUCCESSFULLY RAISE THE DEFENCE OF VOLUNTI NON FIT INJURIAD MUST SHOW THAT PCONSENTED TO THE RISK.


How liability is determined for negligence

O'SHEA v PERMANENT TRUSTEE CO. OF NSW LTD

FACTS:P WAS A PASSENGER IN A CAR DRIVEN BY F THE INSURED OF D - BOTH P & F HAD BEEN DRINKING - F HAD BLOOD ALCOHOL LEVEL OF 0.15 - P HAD NOT BEEN WITH F THROUGHOUT THE EVENING & DID NOT KNOW HOW MUCH HE HAD HAD TO DRINK.

HELD:P HAD A PERCEPTION OF THE DANGER BUT THAT DOES NOT ESTABLISH VOLUNTI FOR THERE MUST BE FULL COMPREHENSION OF ITS EXTENT - WHICH WAS NOT ESTABLISH BY THE FACTS. P WAS 25 % TO BE BLAMED.


How liability is determined for negligence

CONTRIBUTORY NEGLIGENCE L-4-160; GF-p.141

AT COMMON LAW NO DAMAGES WERE PAYABLE IF CONTRIBUTORY NEGLIGENCE WAS ESTABLISHED

CRITICISMS OF THE RULE RESULTED IN THE PASSING IN THE UK OF THE LAW REFORM (CONTRIBUTORY NEGLIGENCE) ACT 1945 WHICH WAS ESSENTIALLY FOLLOWED IN W.A. BY THE LAW REFORM (CONTRIBUTORY NEGLIGENCE AND TORTFEASORS' CONTRIBUTION) ACT IN 1947

ACT ESSENTIALLY PROVIDES THAT DAMAGES CAN NOW BE APPORTIONED TAKING INTO ACCOUNT THE DEGREE OF CONTRIBUTORY NEGLIGENCE OF THE PLAINTIFF


How liability is determined for negligence

LIABILITY FOR PURE ECONOMIC LOSS FOR NEGLIGENT MISSTATEMENTS AND NEGLIGENT ACTS


How liability is determined for negligence

PURE ECONOMIC LOSS FOR

NEGLIGENT MIS-STATEMENT

YOU WILL PASS BUS165!


How liability is determined for negligence

HOW LIABILITY IS DETERMINED FOR NEGLIGENT MISSTATEMENT

DUTY OF CARE

FOR GENERAL NEGLIGENCE A LEGAL RELATIONSHIP OR OBLIGATION MUST BE ESTABLISHED

FOR NEGLIGENT MISSTATEMENT A “SPECIAL” RELATIONSHIP OR OBLIGATION MUST BE ESTABLISHED


How liability is determined for negligence

NEGLIGENT MISSTATEMENTS

HEDLEY BYRNE v HELLERL-4-240; GF-p.164

HELD: THERE COULD BE A DUTY OF CARE WITH RESPECT TO NEGLIGENT MISSTATEMENT BUT IT WAS NOT TO BE AS WIDE AS THE "FORESIGHT" TEST USED FOR NEGLIGENT ACTS

FOR NEGLIGENT MISSTATEMENTS - DUTY OF CARE ONLY AROSE IF THERE WAS A "SPECIAL RELATIONSHIP" BETWEEN THE INQUIRER AND MAKER OF THE STATEMENT


How liability is determined for negligence

NEGLIGENT MISSTATEMENTS

  • THIS SPECIAL RELATIONSHIP EXISTED ONLY WHEN:-

  • THE INQUIRER TRUSTED THE MAKER TO TAKE SUCH DEGREE OF CARE AS THE CIRCUMSTANCES REQUIRED

  • IT WAS REASONABLE FOR THE INQUIRER TO TRUST THE MAKER

  • MAKER GAVE THE ADVICE KNOWING OF THE TRUST

  • ADVICE GIVEN IN RESPONSE TO A SPECIFIC ENQUIRY

  • INFORMATION USED FOR THE PURPOSE OF THE ENQUIRY

  • NO DISCLAIMER OF RESPONSIBILITY


How liability is determined for negligence

NEGLIGENT MISSTATEMENTS

LIMITED TO A RELATIONSHIP

GENERAL NEGLIGENCE

LIMITED TO A “SPECIAL” RELATIONSHIP

NEGLIGENT MISSTATEMENT

THERE WILL BE ADDITIONAL REQUIREMENTS TO ESTABLISH A DUTY OF CARE


How liability is determined for negligence

NEGLIGENT MISSTATEMENTS

IS THIS DUTY OWED ONLY BY PERSONS WHOSE BUSINESS IT IS TO GIVE ADVICE OR DOES EVERYONE WHO GIVES INFORMATION HAVE AN OBLIGATION TO BE CAREFUL?


How liability is determined for negligence

NEGLIGENT MISSTATEMENTS

L SHADDOCK & ASSOCIATES PTY LTD v PARRAMATTA CITY COUNCIL

L-4-260; GF-p.165

Facts: Purchasers, before buying the property in question for redevelopment, had inquired from the Municipal Council if property was proposed to be affected by any road widening or re-alignment proposals. In the certificate issued by the Council it failed to disclose that the land would be subject to road widening. In reliance on the certificate the purchasers bought the property.


How liability is determined for negligence

NEGLIGENT MISSTATEMENTS

HELD:THE PERSON GIVING INFORMATION TO ANOTHER WHOM S/HE KNOWS WILL RELY UPON IT IN CIRCUMSTANCES IN WHICH IT IS REASONABLE TO DO SO, IS UNDER A DUTY TO EXERCISE REASONABLE CARE THAT THE INFORMATION GIVEN IS CORRECT

INFORMATION


How liability is determined for negligence

NEGLIGENT MISSTATEMENTS

SHADDOCK'S CASE IN FACT APPROVED THE MINORITY VIEW IN MLC v EVATT[L-4-260; GF-p.165]

MINORITY IN M.L.C. v EVATT HELD THAT IF

THE INFORMATION WAS GIVEN AS PART OF A

BUSINESS ARRANGEMENT THERE MAY BE A DUTY OF CARE REGARDLESS OF WHETHER IT IS THE BUSINESS OF THE DEFENDANT TO GIVE ADVICE


How liability is determined for negligence

NEGLIGENT MISSTATEMENTS

  • THE FOLLOWING TESTS MUST BE APPLIED TO DETERMINE DUTY OF CARE:

  • SPEAKER MUST OR OUGHT TO REALISE THAT S/HE IS BEING TRUSTED BY THE RECIPIENT FOR THE ADVICE

  • SUBJECT MATTER MUST BE OF A SERIOUS OR BUSINESSNATURE

  • SPEAKER MUST OR OUGHT TO REALISE THAT RECIPIENT INTENDS TO ACT ON THE ADVICE/INFORMATION GIVEN

  • IT IS REASONABLE IN ALL THE CIRCUMSTANCES FOR THE RECIPIENT TO SEEK/ACCEPT/RELY ON THE UTTERANCE OF THE SPEAKER


How liability is determined for negligence

NEGLIGENT MISSTATEMENTS

THE TORT OF NEGLIGENT MISSTATEMENT DEFINITELY EXISTS AND A PERSON WHO MAKES A STATEMENT DIRECTLYOR INDIRECTLY TO ANOTHER, IN CIRCUMSTANCES WHERE S/HE KNOWS, OR SHOULD KNOW, THAT IT WILL BE RELIED UPON OWES A DUTY OF CARE TO THAT OTHER PERSON.


How liability is determined for negligence

DUTY OF CARE

DONOGHUE

v

STEVENSON

HEDLEY BYRNE

v

HELLER & PARTNERS

SHADDOCK

v

PARRAMMATTA CITY COUNCIL

QUALIFIED

LIMITED

BASED ON THE NEIGHBOUR PRINCIPLE:

PROXIMITY + REASONABLE FORESIGHT

THE MAKER OF THE STATEMENT IS TRUSTED AND THERE IS RELIANCE UPON THAT STATEMENT

ANYONE WHO GIVES SERIOUS OR BUSINESS ADVICE IN CIRCUMSTANCES WHERE IT MAY BE RELIED UPON IS LIABLE


How liability is determined for negligence

PURE ECONOMIC LOSS FOR

NEGLIGENT ACTS


How liability is determined for negligence

CALTEX OIL (AUST) PTY LTD v THE DREDGE “WILLEMSTAD

L-4-215

FACTS:A PIPELINE OWNED BY A THIRD-PARTY WAS DAMAGED BY THE DEFENDANT’S NEGLIGENT HANDLING OF THE DREDGE “WILLEMSTAD”. THE OIL WAS NEEDED BY PLAINTIFF WHO HAD TO TRANSPORT THE OIL BY ALTERNATIVE MEANS AT A CONSIDERABLE EXPENSE.

HELD: CALTEX OIL COULD RECOVER THE ECONOMIC LOSS SUFFERED EVEN THOUGH THERE HAS BEEN NO PERSONAL INJURY OR DAMAGE TO THE PLAINTIFF’S PROPERTY. A CLAIM SUCH AS THIS CAN ONLY BE MADE WHERE THE DEFENDANT KNOWS OR OUGHT TO KNOW THAT A SPECIFIED PERSON IS LIKELY TO SUFFER LOSS IF S/HE IS NEGLIGENT.


How liability is determined for negligence

JUNIOR BOOKS LTD v VEITCHI CO LTD

L-4-215

FACTS:THE DEFENDANTS LAID A DEFECTIVE FLOOR IN THE PLAINTIFF’S FACTORY WHICH CRACKED A COUPLE OF YEARS LATER. THE COST OF REPLACEMENT OF THE ENTIRE FLOOR OF £200,00 WAS CLAIMED

HELD: ALTHOUGH THERE WAS NO PHYSICAL INJURY SUFFERED THE DEFENDANT FLOORLAYERS WERE LIABLE FOR THE ECONOMIC LOSS OF £200,00 + ANY CONSEQUENTIAL LOSS OF PROFITS DURING THE PERIOD THAT THE BUSINESS WOULD BE CLOSED FOR THE RELAYING OF THE FLOOR.


How liability is determined for negligence

HAWKINS v CLAYTON

L-4-215

FACTS:THE DEFENDANT SOLICITORS HAD DRAFTED THE WILL OF THE DECEASED BUT FAILED TO INFORM THE EXECUTOR (WHO WAS ALSO THE PRINCIPAL BENEFICIARY) OF THE WILL UNTIL SIX YEARS LATER. THE HOUSE LEFT TO THE PLAINTIFF HAD BECOME RUNDOWN AND MOST OF THE FURNITURE STOLEN

HELD: ALTHOUGH THERE WAS NO PHYSICAL INJURY SUFFERED THE DEFENDANTS WERE LIABLE FOR THE ECONOMIC LOSS SUSTAINED BY THE PLAINTIFF

NOTE: A BARRISTER IS PROTECTED BY LEGAL IMMUNITY FOR ANY WORK DONE IN COURT


How liability is determined for negligence

END OF LECTURES ON LAW OF TORTS


How liability is determined for negligence

HOW TO ESTABLISH LIABILITY UNDER THE GENERAL LAW OF NEGLIGENCE

IS THERE A DUTY OF CARE OWED?

Is there a legally recognised relationship between the plaintiff and the defendant that brings them within the "neighbour principle" discussed in Donogue v Stevenson?

Here discuss briefly the facts of Donogue v Stevenson and the statement mentioning the "neighbour principle"

Explain too that the scope of the "neighbour principle" is limited by the test of proximity which in turn depends on the test of reasonable foresight.


How liability is determined for negligence

HOW TO ESTABLISH LIABILITY UNDER THE GENERAL LAW OF NEGLIGENCE

HAS THE STANDARD OF CARE BEEN BREACHED?

Standard of care is measured according to the standard that would be observed by a reasonable person.

Standard is not an absolute standard to take care against all risks (discuss Glasgow Corp. v Muir) but only against those that are highly probable; possible; or where there is a material risk. Does not include damage that may be foreseeable but is highly improbable (discuss Bolton v Stone).

Standard is also dependent on other attributes of the plaintiff [see Paris v Stephen Borough Council L-4-100]


How liability is determined for negligence

HOW TO ESTABLISH LIABILITY UNDER THE GENERAL LAW OF NEGLIGENCE

HAS DAMAGE RESULTED FROM THE BREACH OF THE STANDARD OF CARE?

Prove that there was causation - a connection between the breach in the standard of care and the damage suffered.

Test used is the "but for" test. Discuss Barnett v Chelsea Hospital or Cork v Kirby MacLean Ltd or Yates v Jones.


How liability is determined for negligence

HOW TO ESTABLISH LIABILITY UNDER THE GENERAL LAW OF NEGLIGENCE

IS THE DAMAGE SUFFERED TOO REMOTE?

Here discuss that according to Wagon Mound No:1 only type/kind of damage that is reasonably foreseeable will be allowed.

The degree of foreseeability of that type/kind of damage is limited by Wagon Mound No: 2 which states that the risk of damage should be real and not far fetched and could have been avoided by a reasonable person without too much expense or effort.


How liability is determined for negligence

HOW TO ESTABLISH LIABILITY UNDER THE GENERAL LAW OF NEGLIGENCE

ARE THERE ANY DEFENCES AVAILABLE TO THE DEFENDANT?

Here discuss such defences as contributory negligence and volunti non fit injuria if applicable.


How liability is determined for negligence

SOME ADVICE

PLEASE READ THE INSTRUCTIONS CAREFULLY

NO REFERENCING REQUIRED IN EXAMS


How liability is determined for negligence

AUTHORITIES SHOULD NOT BE MERELY CITED BUT DISCUSSED

The case example here is Carlill v Carbolic Smoke Ball Co. case

The case applicable here is Carlill v Carbolic Smoke Ball Co. case where a lady responded to an advertisement in a newspaper which stated that if any person were to take the smoke ball over a fixed period of time they would be cured of the flu. To show their sincerity in this matter the advertisers deposited £100 in a bank. The court held that in this case ................


How liability is determined for negligence

  • Make firm reasonable presumptions based on the facts of a problem and not all possible assumptions

  • Make firm conclusions

  • Names of cases cited should be either highlighted or underlined

  • Start each new point/argument on a new paragraph

  • Every new section and question should be started on a new page

  • Do not discuss non-issues - confine yourself to the issues - do not discuss the obvious


How liability is determined for negligence

  • REMEMBER

  • Examiners will be looking for

  • ISSUES, whether legal concepts introduced have been defined/explained

  • LEGAL ARGUMENTS,

  • LEGAL AUTHORITIES in support of those arguments

  • FIRM CONCLUSIONS


How liability is determined for negligence

  • TORT LAW

  • General Negligence

    • Duty of Care

    • Standard of Care

    • Causation

  • Defences –

    • Contributory Negligence

  • Remoteness of Damages


How liability is determined for negligence

Donoghue v Stevenson

Bolton v Stone

Wagon Mound I & II

Paris v Stephen Borough Council

Barnett v Chelsea Hospital

Glasgow Corp. v Muir

Nagle v Rottnest Island Authority

Mercer v Commissioner For Transport & Tramways (NSW)

NOTE - LIST IS NOT EXHAUSTIVE!


How liability is determined for negligence

END OF COMMERCIAL LAW LECTURES FOR THIS SEMESTER

GOODBYE AND GOOD LUCK

IN YOUR EXAMINATIONS


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