Law of Tort; Tamara

This document discusses the law of torts and how it applies to Tamara's case against Aldi Supermarket. It covers issues such as duty of care, breach of duty, damages, and defences available to the supermarket.

Law of Tort; Tamara
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Introduction
According to Stickley (2016), the essence of the law of torts is to help resolve issues that are
arising from the negligence of those tasked with the legal obligation to care for others. A breach
in the legal duty to care has legal consequences as one is not allowed to suffer a loss without a
remedy under law.
Issues
1. Whether Tamara is entitled to a "duty of care"?
2. Whether Tamara is a victim of a breach of a "duty of care"?
3. Whether Tamara can prove the element of damage in a suit against Aldi Supermarket?
4. What are the defences available for the supermarket?
5. What kind of damages is Tamara entitled to if the suit is a success?
Issue; Whether Tamara is entitled to a "duty of care"?
Rule/Law; Discussions
To sue for negligence, one has to establish that the respondent owed a "duty of care" to the
claimant. The Workplace Health and Safety laws (2011) dictate that any owner of a business
should be able to provide a safe working environment for his employees and customers. Also,
the Civil Liability Laws (2003) stipulates the bare minimum requirements to show that the
defendant owes the claimant a "duty of care" under sections 23 to 27. It is vital to know that in
instances where the law fails to set the requirements to establish the presence of a "duty of care",
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the judiciary is at liberty to provide for. In Perre v Apand (1999), it was held that the following
conditions must be met to show the presence of a "duty of care";
i. the level of vulnerability of the claimant to the actions of the defendant; and
ii. to what extent does the imposition of the "duty of care" interfere with the independence
of the defendant.
Application;
Tamara is a customer of Aldi Supermarket; therefore under the Workplace Health and Safety
laws (2011), a "duty of care" is created as this Act requires that business owners provide a safe
environment for his customers. Also, Aldi Supermarket is aware of the vulnerability of claimants
as a result of their acts or omission hence they acquired a person to often do a cleaning round to
guarantee the safety of its customers as in the case of Perre v Apand. Furthermore, the
imposition of the "duty of care" of the store towards Tamara would not result in the
overburdening of the autonomy of the defendant as it is their legal obligation to take care of the
claimant.
Conclusion;
Tamara is entitled to "duty of care" by the supermarket
Issue; Whether Tamara is a victim of a breach of a "duty of care"?
Rule/Law; Discussions
Section 9 of the CLA (2003) states that a breach of duty can only occur if the following are met;
i. the risk must be foreseeable
ii. the risk must be significant; and
iii. the defendant failed to act with reasonability.
The element of the defendant being able to foresee the risks that the claimant is likely to suffer
was emphasized in McLoughlin v O'Brian (1983) by Lord Scarman. It is essential to prove
whether or not the defendant acted with reasonable care as in the matter between Orchard v Lee
(2009). Finally, scrutiny is drawn towards the social purpose of the endeavor that creates the
risks.
Application;
Under the law, Aldi Supermarket owes Tamara a "duty of care". However, a man is to err, Aldi
Supermarket has failed to exercise a standard of care towards guaranteeing the safety of
customers like Tamara. Because the supermarket had gone ahead to hire a person who takes care
of the cleanliness of the supermarket shows that they can foresee the risk of not having clean
floors. Through this Aldi Supermarket meets the foreseeable risk condition as Set out in CLA
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(2003) and Lord Scarman's rationale in McLoughlin v O'Brian (1983). Considering the social
utility nature of the store, it comes out as a busy place since Tamara would always find her
favourite sweet out of stock; therefore, 45 minutes between the cleaning times is unreasonable.
This defies that standard of care doctrine as laid down in Orchard v Lee (2009). Section 9(2) of
the CLA, states that the risk suffered must be significant. When Tamar falls after stepping on the
puddle of ice cream, she breaks her back and is hospitalized for months justifying the fact that
this was not an insignificant risk.
Conclusion;
A breach of "duty of care" occurs resulting in Tamara hurting herself.
Issue; Whether Tamara can prove the element of damage in a suit against Aldi
Supermarket?
Rule/Law; Discussions
Stapleton (2015) opines that for a claimant to claim for damages she should be able to prove that
the injuries suffered were as a result of the negligence of a person or entity that owes her a "duty
of care". The remoteness of the damage sustained is crucial in proving the elements of the loss
suffered. In Banque Bruxelles Lambert SA V Eagle Star Insurance C. Ltd (1996) it was
determined that the harm suffered must be solely as a result of the failure to observe the standard
of care by the defendant. The but for test of causation is also used to assess the remoteness of the
damage to the defendant like in Wright v Lodge(1993).
Application;
Tamara on spotting her favourite chocolate bar runs towards the shelf to grab. She manages to
get to it first and on breaking she steps on a puddle of ice cream and breaks her back. Using the
but-for test as the case of Wright v Lodge(1993), But for the presence of the ice cream on the
ground, Tamara fell and broke her lower back. Also, the negligence of Aldi Supermarket to clean
the puddle satisfies the principle in Bruxelles Lambert SA V Eagle Star Insurance C. Ltd (1996)
which states that the damage must be solely as a consequence of the negligence of the
respondent.
Conclusion;
Tamara can prove the element of damage suffered.
Issue; What are the defences available for the supermarket?
Rule/Law; Discussions
When a claimant moves before a court to sue for negligence, it is not all the time that the claim
will succeed. The defendant has defences that are at his disposal. Such as defence includes
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contributory negligence. The damage suffered may not be solely the fault of the defendant; see
O'Connell v Jackson(1971). It is a legal expectation that all individuals act reasonably see;
Perdue v Devon Fire and Rescue Service (2003). The claimant must be able to exercise a
standard of care as held in Cooper v Carillion Plc.
Application;
Tamara fails to take reasonable care in the supermarket when he decides to run as fast as possible
to get her chocolate. It is common knowledge that one is not allowed to run in a supermarket
unless it is a question of emergency. She falls below the standard set in O'Connell where the
claimant does not exercise a reasonable standard of care by failing to fasten his helmet.
Similarly, Tamara fails to carry herself with reasonability as expected by her from the
precedence in Perdue (2003).
Conclusion;
The defence available for the supermarket is that of contributory negligence
Issue; What kind of damages is Tamara entitled to if the suit is a success?
Rule/Law; Discussions
The precedence set by Lord Atkin in the matter between Caswell v Powell Duffryn Associated
Collieries Ltd (1940) states that "if the claimant was negligent, but his negligence was not the
operating cause to produce the damage. I find it impossible to separate contributory negligence
from causation."
Application;
The presence of the ice cream puddle and failure to clean it poses a significant risk to any
customer who would step on it. This remains as the substantial cause in leading to the damage
suffered by Tamara; that is, losing her job and spending $70,000 on her medication.
Conclusion;
Tamara is eligible for special damages which involve the reimbursement of her hospital bill and
damages for suffering the pain and trauma.
General Conclusion
The world is facing fast modernization, and with this comes new cases that require modern
solutions; thus it is essential that the laws be interpreted and reviewed in a way that addresses the
new arising case scenarios.
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REFERENCE
Books, Articles, and Journals
Stapleton, J., 2015. An ‘Extended But-For ‘Test for the Causal Relation in the Law of
Obligations. Oxford Journal of Legal Studies, 35(4),
pp.697-726.https://doi.org/10.1093/ojls/gqv005
Stickley, A.P., 2016. Australian torts law. LexisNexis Butterworths.
Legislations
Civil Liability Act 2003 (Qld)
Workplace Health and Safety Act 2011(Qld)
Cases
Banque Bruxelles Lambert SA V Eagle Star Insurance Co. Ltd [1996] UKHL 10
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152
Cooper V Carillion Plc. In Purdue V Devon Fire and Rescue Service [2003] EWCA Civ 1811
McLoughlin v O’Brian] 1983] 1 AC 410
O'Connell v Jackson [1971] 3 WLR 463
Orchard v Lee [2009] EWCA Civ 295
Perre V Apand [1999] 198 CLR 180
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