Negligence and Contributory Negligence

This assignment examines a hypothetical case study involving Tamara slipping on an ice cream puddle in Aldi supermarket. Students are tasked with analyzing the situation through the lens of negligence and contributory negligence. They must identify the duty of care owed by Aldi to Tamara, assess whether there was a breach of that duty, determine if Tamara's injuries were foreseeable, and apply relevant legal principles from cases like *Bolton v Stone* and *Paris v Stepney Borough Council*. The analysis culminates in a conclusion about the potential success of Tamara's negligence claim and the likely impact of contributory negligence on any awarded damages.

Corporation Law
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(Student Details: )
17-Jan-18

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Introduction
Tort law is a branch of common law, and denote civil wrong done. One of the torts in the nation
is negligence. Negligence occurs where an owed duty of care is contravened, owing to the acts
undertaken by the duty owing person, which causes the other person’s injuries, or losses. When a
case of negligence is made, often the defence of contributory negligence is cited (Latimer, 2012).
This part covers an analysis of the given case study, in context of the two concepts.
I: Issue
The main issue in this case is the chances of a case of negligence, raised by Tamara against Aldi
Supermarkets (Aldi), being successful.
R: Rule
Negligence is the tort through which the person breaching the duty of undertaking reasonable
care is made liable, for not taking the care as a reasonable person would have undertaken in
similar situations, particularly when the result in harm/ loss/ injury was being caused to the party
to which this duty was owed. Establishing negligence is a step based process, where there is a
need to show the duty of care being present, its violation, the violation causing injury, loss not
being remote, foreseeability of loss and direct causation. In cases where these are shown to be
present, monetary compensation can be claimed upon by the aggrieved party (Gibson and Fraser,
2014).
To begin with, there is a need to establish the presence of duty of care. In this regard, the
threefold test provided in Caparo Industries plc v Dickman [1990] 2 AC 605, 618 proves to be of
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assistance. As per this test, there is a need to show reasonable foreseeability of the injury through
the defendant’s conduct or actions; there is also a need for the defendant and plaintiff to have a
relationship of proximity; and finally, the imposition of penalty has to be deemed as fair, just and
also reasonable based on the scenario present (Lunney and Oliphant, 2013). Bolton v. Stone
[1951] AC 850, [1951] 1 All ER 1078 was a case in which the plaintiff was not awarded with
any sort of damages, owing to the lack of holding the defendant as liable for negligence, as there
was absence of reasonable foreseeability in the conduct of the plaintiff (Swarb, 2016).
This has to be followed by showing that the owed duty of care had been contravened (Harvey
and Martson, 2009). Paris v Stepney Borough Council [1951] AC 367 was a case in which the
defendant was aware of the fact that the plaintiff was blind in one eye. Despite this, he was not
given the safety gears to be worn whilst be performed his work. One of the days he was working,
a rusty bolt hit his good eye, blinding him completely. This was deemed as breach of duty of care
resulting in the defendant being deemed negligent (Martin and Lancer, 2013). The loss caused
has to be significant and not too remote. Upon the presence of all these, negligence can be
upheld (Latimer, 2012).
A common defence citied in cases of negligence is contributory negligence. As per this concept,
the injured party has to be made liable for the contribution made by them in the injuries which
they suffered, predominantly through the negligence of the defendant. Thus, the amount of
damages given to the plaintiff for their loss is brought down by their contributory negligence,
and is entirely based on discretion of court (Dongen, 2014). Hamilton v Duncan [2010] NSWDC
90 is an example of this concept. This case had the plaintiff failing in maintaining proper look-
out for hole, and this was done when the plaintiff had the knowledge of the hold, on which the
plaintiff had tripped. There had been warnings by him to other person regarding the same; and
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this person was the witness later on in context of the hole being present in the ground, just before
the incident had taken place. Thus, the damages were reduced by thirty percent as the court held
that the contribution of plaintiff had been thirty percent in this case (Bannerman, 2015).
A: Application
Where an individual gets in a supermarket, the supermarket gets the duty of making certain that
such person is safe while they are in the supermarket. This means that the duty of care was owed
by Aldi to Tamara as she was a customer. Based on the threefold test, the loss here was
foreseeable as any person would fall on puddle of ice cream and this required proper cleaning.
There was clear proximity between the two, and where penalties are imposed in this case they
would be fair. The foreseeability is proved based on Bolton v. Stone as falling on wet surface is
reasonably foreseeable. Just because the floor was cleaned every forty minutes, does not mean it
should not have been cleaned as soon as the ice cream fell on the floor. Not cleaning the surface
was breaching the duty of care established through the threefold test, thus satisfying Paris v
Stepney Borough Council. Based on these cases, a duty of care was presented to be breached and
with satisfaction of the other requirements a case of negligence can be raised by Tamara. This
means she can apply for damages.
However, the damages applied by her would be reduced based on Hamilton v Duncan. This was
due to the fact that Tamara was aware of ice cream puddle and she still ran for the last piece of
chocolate. She was required to take care of herself and walk instead of running on a wet day.
Thus, she contributed towards her injuries by running.
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C: Conclusion
Through the conducted analysis, it is concluded that Aldi had been negligent in this matter, but
there was also the presence of contributory negligence by Tamara. This means that the awarded
damages to Tamara would be reduced by her contribution. Still, Tamara is advised to make a
case of negligence to get a major portion of the damages caused to her.
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References
Bannerman, D. (2015) Contributory Negligence In "Slip And Fall" Cases - No Control Over The
Plaintiff's Own Action Or Inaction?. [Online] Bannermans Lawyers. Available from:
http://www.bannermans.com.au/insurance/articles/public-liability/331-contributory-negligence-
in-slip-and-fall-cases-no-control-over-the-plaintiff-s-own-action-or-inaction [Accessed on:
17/01/18]
Dongen, E.V. (2014) Contributory Negligence: A Historical and Comparative Study. Boston:
Brill Nijhoff.
Gibson, A., and Fraser, D. (2014) Business Law 2014. 8th ed. Melbourne: Pearson Education
Australia.
Harvey, B., and Marston, J. (2009) Cases and Commentary on Tort. 6th ed. New York: Oxford
University Press.
Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia
Limited.
Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford
University Press.
Martin, J., and Lancer, D. (2013) AQA Law for AS Fifth Edition. 5th ed. Oxon: Hachette UK.
Swarb. (2016) Bolton v Stone: HL 10 May 1951. [Online] Swarb. Available from:
http://swarb.co.uk/bolton-v-stone-hl-10-may-1951/ [Accessed on: 17/01/18]
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