COMMERCIAL LAW

ASSIGNMENT 1: Case Note

Course: Commercial Law

Course Code: LAW2447
Student’s name: Nguyen Duc Anh
Sid: 3819809
Group: 8:00 Friday
Lecturer’s name: Son NT
Due: 31/3/2021
Word count: 770

A. TABLE OF CONTENT:

Introduction……………………………………………………………………..…….2
Legal Issue…………………………………………………………………………….2
Analysis………………………………………………………………………………..3
Conclusion……………………………………...…………………....………………...4

B. BIBLIOGRAPHY:
Case law:
Australian Safeways Stores Pty Ltd v Zaluna (1987) 162 CLR 479
Bolton v Stone [1951] AC 850
Latimer v AEC Ltd [1953] AC 643
Ingram v Britten (1994] 201

Legislation:
Civil Liability Act 2002 (NSW)

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 I. Introduction
On 19th March 2020, the case Mohammed Abed v Canterbury-Bankstown Council was
decided in New South Wales District Court by the Judge–Abadee. This case note will
determine the legal issues and then examine whether the Judge made the right final
decision from my perspective.

II. Legal Issues

The court included two main parties in which Mr. Abed was the Plaintiff and the Council
was the Defendant.

The incident occurred when Mr. Abed and his son were going back to the carpark at
around 7pm after attending a celebration of the mosque nearby. It was dark and they took
a shortcut through the garden pathway, Mr. Abed then fell seriously as he was not aware
of the pothole on the way out to the carpark. It caused him twisted in his right leg and the
right foot was swollen. He sued the Council for not taking the duty of care (DOC) for him
and breached that duty as there were no precautions given bad lighting conditions,
causing his impairment.

There were three predominant legal issues in this case, which were “Did the Council owe
Mr. Abed a DOC?”, “Did they breach the Standard of care to Mr. Abed?”, “Was the harm
of Mr. Abed caused by Council’s conduct?” and a subsidiary “Did Mr. Abed owe the
Council a Contributory Negligence?”. However, the second legal issue is more crucial to
me than the other three.

III. Critical Analysis

Coming to the first issue, Australian Safeways Stores Pty Ltd v Zaluna1 was used by the
Judge as a similar case to decide that the defendant owed the plaintiff a DOC because
their relationship is occupiers-guests, which falls in seven recognized DOCs. Hence, the
Council must take a reasonable DOC for Mr. Abed.

1
Australian Safeways Stores Pty Ltd v Zaluna (1987) 162 CLR 479

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 Dealing with the second issue, the Judge concluded that the risk of harm was foreseeable
and insignificant by looking at the Civil Liability Act 2002 (NSW)2, this was known well
by the defendant as the shortcut was in the proximity to the carpark, nearby shops and the
mosque, where a reasonable person might want to go. The Judge then based on four
elements to determine whether the defendant breached the duty in the circumstance.
Probability of harm, according to the judge’s convincing interpretation, was too high as it
was the night time without good lighting condition, a reasonable person might not see the
pothole. However, he can use Bolton v Stone3 case to solidify his opinion. Next, the Judge
persuasively wrapped up that the seriousness of harm was high since the result depends
on the speed of a reasonable person, specially with a man during his mid-50s having
previous injuries. Then, following the s 5B(2)(c) of the Act4, although the Judge was right
that the cost of taking precautions were not burdensome, he did not mention the financial
term of it. Therefore, based on Latimer v AEC5 case, i decide that the cost was cheap as
the Council could put a warning sign right before the step-off way, which was relatively
inexpensive. Finally, following the s 5B(2)(d) of the Act6, I do not concur with the Judge
decision when claiming that the social utility did not matter. From my perspective, the
inaction of Council still matters as there might be other people falling because of that
pothole without any precautions, which resulted in a higher SOC. Overall, it is
compelling that the Council breached the SOC for the risk.

To solve the third issue, in terms of causation, the Judge finalized convincingly that the
defendant’s conduct caused the plaintiff to suffer harm by using the “but for” test.
Specifically, but for the not taking precautions of the Council, Mr. Abed would not fall.
Hence, the defendant must be responsible for the plaintiff’s harm.

Considering the last issue, the Judge was fallacious concluding that the contributory
negligence failed. Following Ingram v Britten7, I discover that the cause was also from
2
Civil Liability Act 2002 (NSW)
3
Bolton v Stone [1951] AC 850
4
Civil Liability Act 2002 (NSW) s5B(2)(c)
5
Latimer v AEC Ltd [1953] AC 643
6
Civil Liability Act 2002 (NSW) s5B(2)(d)
7
Ingram v Britten (1994] 201

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 the plaintiff’ negligence. As a man in his mid-50s, Mr. Abed was supposed to walk
carefully since he had serious injuries to neck and back previously. Thus, I think both the
plaintiff and the defendant should have shared 50% of the damage.

IV. Conclusion
In conclusion, i believe that the Canterbury-Bankstown Council breached tort of
negligence and Mr. Abed should win the case and suffer 50% of the damage.