Duty of Care, Standard of Care, Negligence, Causation and Scope of Liability, Breach of Duty, Defences, Advise Raw Vegan Delights, Advise Terri

This assignment discusses the duty of care, standard of care, negligence, causation and scope of liability, breach of duty, defences, and provides advice for Raw Vegan Delights and Terri.

i. Duty of Care
It is automatically assumed that a duty of care is owed by Raw Vegan Delights to Terri
under occupiers’ liability principles. Terri owed herself a duty of care to take reasonable
care not to injure herself.
ii. Standard of Care
The standard of care of RVD is that of a reasonable business owner, or of an
owner/occupier of a premises. The standard of care of Terri is that of a reasonable
person with osteoporosis.
iii. Negligence
Per the Civil Liability Act (2002), a person is not negligent in failing to take precautions
against a risk of harm unless (a) the risk was foreseeable (that is, it is a risk of which the
person knew or ought to have known), and(b) the risk was not insignificant, and(c) in the
circumstances, a reasonable person in the person's position would have taken those
precautions.
In this particular case, the risk of a patron slipping on a dropped piece of food is high in
a food establishment. The owners of RVD, Jess and Pete were in the process of
finalising a safety and work flow manual which set out processes such as the frequency
of cleaning inspections. The creation of such processes acknowledge that the owners
were aware of the risk and that the risk was foreseeable. Per Section 52(1)(c), the
subsequent taking of action that would have avoided a risk of harm does not of itself
give rise to or affect liability in respect of the risk and does not of itself constitute an
admission of liability in connection with the risk.
The risk of a patron slipping and hurting themselves by falling is not insignificant.
Woolworths
Per the Civil Liability Act (2002) the court is to consider the following to determining
whether a reasonable person would have taken precautions against a risk of harm,
among other relevant things: (a) the probability that the harm would occur if care were
not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to

avoid the risk of harm; and (d) the social utility of the activity that creates the risk of
harm.
The probability that the farm would occur if care were not taken is high as the risk of
slipping on a piece of discarded food is higher if the floor is not inspected or cleaned
regularly. However, it is possible that even if the cleaning schedule was followed
closely, another patron could drop food within that two (2) hour time frame which could
ultimately result in someone falling and injuring themselves regardless of the cleaning
schedule.
The likely seriousness of the harm is that someone may fall and injure themselves,
resulting in a mild to moderate injury of a broken bone or concussion in a worst-case
scenario. In this specific case, the plaintiff was recently diagnosed with osteoporosis
which effectively caused her injury to be more severe and permanent. It was unlikely
that her injury would have been as severe if she did not have osteoporosis.
The burden of taking precautions in this case is not unreasonable. The store was
expected to inspect and clean the floors regularly, in which they did not do throughout
the day whatsoever.
There was no social utility or benefit to society of the activity that caused the risk of
harm. The store was exceptionally busy on the day of the incident; however, the failure
to clean the floors of the establishment did not benefit the society in any way that would
have outweighed the risk of the injury sustained by the plaintiff.
A reasonable person would have taken the precautions to inspect and clean the floors
of a food establishment every two hours, as already recommended by the owners.
In light of the above, it should be determined that RVD was negligent by failing to
inspect and clean the floors regularly.
iv. Causation and Scope of Liability
5D In order to determine that the negligence caused the harm, the negligence must be
a necessary condition of the occurrence of the harm; and that it is appropriate for the
scope of the negligent person’s liability to extend to the harm so caused.

Factual Causation
The failure to regularly inspect and clean the floors was a necessary condition of the
occurrence of the harm. Should the floors have been inspected and cleaned regularly,
the risk of the patron falling and injuring herself would have been less severe. The
defendant failed to inspect and clean the floors at any point in the day. It is likely that if
the defendant followed a regular cleaning schedule, less food pieces would have bene
on the floor resulting in a lower chance of injury.
Remoteness
It was reasonably foreseeable that a patron may bring a chip from a neighbouring store
into the establishment. Therefore, should the cause of the injury be from a chip from a
neighbouring store, it is not too remote that the damage may occur.
Scope of Liability
The plaintiff was recently diagnosed with osteoporosis. It is unlikely that her injuries
would have been so severe if she did not have osteoporosis. The defendant will be
liable for the resultant damages regardless of whether they are reasonably foreseeable
under the eggshell skull rule. Stephenson v Waite Ltd rules that "Although the broad
basis of the rule is that it would be unjust to hold a wrongdoer liable for damage of a
kind which he could not reasonably foresee, nevertheless the rule accepts the position
that there are many matters of detail which nobody could predict but for which the
wrongdoer nevertheless remains liable."
v. Breach of Duty
Raw Vegan Delights breached their duty of care.
vi. Defences
Obvious Risk
It can be argued that there was an obvious risk that there may be food products on the
floor of a busy food establishment during a busy day. Per 5F of Civil Liability Act, a risk

can be an obvious risk even through it has a low probability of occurring. A person who
suffers harm is presumed to have been aware of the risk of harm if it was an obvious
risk, unless the person proves that they were not aware of the risk.
The defendant does not owe a duty of care to another person to warn of an obvious risk
to the plaintiff.
The defendant may argue that there was an obvious risk that the plaintiff may fall and
injure herself; however, they will likely be unsuccessful.
Inherent Risk
An inherent risk is something that cannot be avoided by the exercise of reasonable care
and skill. Inherent risk may be used as a defence if the establishment had regularly
inspected and cleaned the floor in accordance with their cleaning schedule. In this case,
inherent risk cannot be used as a defence.
Contributory Negligence
The plaintiff may have been contributorily negligent by failing to take the necessary care
to avoid the harm. The standard of care of the plaintiff is that of a regular person with
osteoporosis or another illness that may affect the extent of injury. The plaintiff knew or
ought to have known that there was an obvious risk that there would be discarded food
on the floor of a food establishment and should have taken due care to ensure that they
did not slip on the food. Contributory negligence can defeat a claim and reduce the
damages by up to 100%.
vii. Advise Raw Vegan Delights
Raw Vegan Delights was negligent by failing to follow a regular cleaning schedule to
ensure the safety of their patrons. RVD is advised to argue that there was an obvious
risk that a patron may slip on food in a busy food establishment and that the patrons
needn’t be advised of this risk. Further, it is advised that RVD argue that Terri was
contributorily negligent by failing to take the care to avoid the obvious risk of injuring
herself. Terri should have taken a heightened amount of care to avoid injury due to the
knowledge of her prior diagnosis.

viii. Advise Terri
Terri is advised the argue that RVD was negligent and breached their duty of care under
occupiers’ liability principles. RVD failed to maintain a regular cleaning schedule and it
was reasonably foreseeable that the injury to Terri would occur.

Advice
After going through your assignment we feel that we are going forward in the
right track. However, it would be better if you focus more on IRAC method. In
addition it would be better if you add a few cases to the assignment such as
Donoghue v Stevenson 1932 AC 562. We would also advice you to add certain
tests for establishing the three elements of negligence namely duty of care,
breach of duty and causation. Please also ensure that you come to a conclusion
after addressing the tests properly. These tests could include the objective test,
Foreseebility test, Caparo test and But for test.