BUS107 Commercial Law Contravention of Obligation of Care

Issue

1. Can Aldi Supermarkets be held liable for negligence, or not?
2. Can Tamara be held liable for contributory negligence, or not?

Rule

Negligence denotes an infringement of duty of care, on part of an individual, which was owed by him/ her to some other person, and the end result of which is a loss or harm to such other person. When a case of negligence is established a person can apply for damages. The rationale for holding individuals liable for negligence is to hold them accountable for the work undertaken by them, the consequence of which is foreseeable losses to the other person (Gibson and Fraser, 2014). To show that a case of negligence is present, an individual has to establish the existence of following:

• Duty of care
• Contravention of obligation of care
• Loss/ harm/ injury
• Loss not being too remote
• Direct causation between the injury and the breach of duty
• Foreseeability of loss (Harvey and Marston, 2009).

The first step is establishing that the person one owed a duty of care to person two. In this, the case of Donoghue v Stevenson [1932] UKHL 100 proves helpful. This case is otherwise known as the snail in bottle case, and in this, the failure on part of the manufacturer to keep the ginger beer bottle manufactured by for consumption of the consumers, was held to be a breach of duty of care. And so, the manufacturer had to compensate Donoghue for the loss incurred by her due to her illness (Latimer, 2012). Apart from this case, the threefold test is also applied, as was given in the case of Caparo Industries plc v Dickman [1990] 2 AC 605, 618. This test, as the name suggests, requires three elements to be present for establishing duty of care. The first one is that the risk has to be predictable in a rational way. This needs to be followed by proximity amid the people and lastly, the imposed penalty needs to be just, reasonable and fair (Lunney and Oliphant, 2013).

Once obligation of care is depicted properly, the contravention of this obligation needs to be shown. In the matter of Paris v Stepney Borough Council [1951] AC 367, the Council had clear awareness about the condition of Paris as per which he was blind in one eye and yet they did not offer him the requisite safety gear. So, when a rusty chip fell and blinded him completely, the court held it as a breach of duty of care on part of the Council (Martin and Lancer, 2013). Another crucial matter in this regard is that of Vaughan v Menlove (1837) 132 ER 490 (CP), as Menlove chose the forewarning regarding the likelihood of fire, it was held as a breach of duty of care (Commonwealth Legal Information Institute, 2017).

There has to be a substantial amount of loss or injury and the same cannot be too remote, or else the damages would not be awarded to the claimant. A direct causation between the injury and breach of duty is also needed. This can be seen in the case of Donoghue v Stevenson, where the bottle containing dead snail was directly responsible for sickness of the plaintiff (Latimer, 2012). In Wyong Shire Council v. Shirt (1980) 146 CLR 40, the view of a prudent person was given emphasis for establishing the risk of harm (Jade, 2017). In the Wagon Mound Case, the full name of which is the Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2, the judges held that the damages were too remote, and hence, did not deem the requirement of damages to be awarded (H2O, 2016).

The damages are awarded in cases of negligence, to put the being in such a position, where they would be, had the negligence not occurred, and this was held in the matter of Addis v Gramophone [1909] AC 488 by the House of Lords (E-Law Resources, 2017). The damages are awarded on the basis of the above stated element, and also by applying a test given in Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428, i.e., the “but for test”. The court held that the damages would not be awarded in such cases where the injury would have occurred, even in absence of the negligence of the defendant (Strong and Williams, 2011).

Contributory negligence is the defense used in the cases where a case of negligence is made against the defendant. In such cases, the defendants show that the plaintiff themselves had contributed towards the harm incurred by them, due to the negligence of the defendant. And in such cases, on the basis of the decision of a competent court, the ordered damages are reduced by an amount or a percentage of amounts, as decided by the judges (Latimer, 2012).

In the matter of In Raad v KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2016] NSW 2016 888, the court awarded the verdict whereby the damages were brought down by 10%, as the plaintiff was held to be negligent when she rushed towards the product in the supermarket (Devitt, 2016). In Froom v Butcher [1976] 1 QB 286, when the defendant’s truck collided with that of the plaintiff, the plaintiff, along with his family, was not wearing any seat belts. This was seen as a contributory factor in the injuries sustained by the plaintiff and his family. And so, due to the contributory negligence of the plaintiff, the damages were reduced by £100 (Swarb, 2017).

Application

The given case study highlights that Aldi supermarkets owed a duty of care towards Tamara, and this duty was breached when a puddle of ice cream was not cleaned on time, which led to the injuries of Tamara. This resulted in significant amount of damages, plus a lot of time in hospital.  The injury would not have incurred, had the floor been clean. A puddle of ice cream on floor is a foreseeable risk of injury. And lastly, the injury was caused due to this very breach of duty of care. Hence, the supermarket would be held liable for negligence, and they would have to compensate Tamara for her losses.

But, Tamara in a hurry did not care for herself, as was required on her part, which would be deemed as contributory negligence on her part. And so, her amount of damages would be reduced as deiced by the court.

Conclusion

1. Yes, Aldi Supermarkets can be held liable for negligence.
2. And yes, Tamara can be held liable for contributory negligence.

References

Gibson, A., and Fraser, D. (2014) Business Law 2014. 8^th ed. Melbourne: Pearson Education Australia.

Harvey, B., and Marston, J. (2009) Cases and Commentary on Tort. 6^th ed. New York: Oxford University Press.

Latimer, P. (2012) Australian Business Law 2012. 31^st ed. Sydney, NSW: CCH Australia Limited.

Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5^th ed. Oxford: Oxford University Press.

Martin, J., and Lancer, D. (2013) AQA Law for AS Fifth Edition. 5^th ed. Oxon: Hachette UK.

Devitt, S. (2016) A slip up - shopping centre liable for slip and fall on wet tiles. [Online] Lexology. Available from: https://www.lexology.com/library/detail.aspx?g=bdcef724-3c2e-482d-9d74-540bc1a44d6c [Accessed on: 17/05/17]

Commonwealth Legal Information Institute. (2017) Vaughan v Menlove. [Online] Commonwealth Legal Information Institute. Available from: https://www.commonlii.org/uk/cases/EngR/1837/424.pdf [Accessed on: 17/05/17]

E-Law Resources. (2017) Addis v Gramophone [1909] AC 488 House of Lords. [Online] E-Law Resources. Available from: https://e-lawresources.co.uk/cases/Addis-v-Gramophone.php [Accessed on: 17/05/17]

Jade. (2017) Glendale Chemical Products Pty Ltd v Australian Competition & Consumer Commission & Anor [1998] FCA 1571; 90 FCR 40. [Online] Jade. Available from: https://jade.io/j/?a=outline&id=116054 [Accessed on: 17/05/17]

Strong, S.I., and Williams, L. (2011) Complete Tort Law: Text, Cases, & Materials. 2^nd ed. Oxford: Oxford University Press.

Jade. (2016) Wagon Mound (No. 1) -- "The Oil in the Wharf Case". [Online] Jade. Available from: https://h2o.law.harvard.edu/collages/4919 [Accessed on: 17/05/17]

Swarb. (2017) Froom v Butcher: CA 21 Jul 1975. [Online] Swarb. Available from: https://swarb.co.uk/froom-v-butcher-ca-21-jul-1975/ [Accessed on: 17/05/17]