Negligence Law: Can Tamara Recover from Aldi Supermarket for Injury?

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Contents
Answer........................................................................................................................................................2
Issues.......................................................................................................................................................2
Relevant Law...........................................................................................................................................2
Application of law...................................................................................................................................4
Conclusion...............................................................................................................................................5
Reference List..............................................................................................................................................6

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Answer
Issues
i. Can Tamara recover from Aldi supermarket for injury sustained by her?
ii. Are there any defenses available to Aldi super market which can protect it from
being liable to Tamara?
Relevant Law
The given problem relates to law of negligence. As per law of negligence, a person who
performs his acts must perform in such a manner so that his acts must not cause any kind of
damage or injury to any other person. Law of negligence had been designed in order to protect
the injured who is injured due to no fault on his part. In such cases where the injury is inflicted to
the injured without any fault on his part, then, the person who is responsible for his injury is held
liable and thus in turn has to compensate. (Gibson & Ase 2008)
There are three steps which must be assessed in order to establish negligence on the part of
person performing the act, they are, duty of care, its breach and resultant loss or injury.
Duty of care is the first step to hold wrongdoer negligent. It is the duty which is obligated with
the wrongdoer as per which he is duty bound to act in a proper and careful manner so that his
acts must not harm his neighbor (Donoghue v Stevenson [1932]).
The law of negligence states that a person should perform his acts properly and with due care
and diligence so that his acts must not harm any person. That ‘any person’ can be one who is
likely to be affected by his acts. In Donoghue v Stevenson, the principal of neighborhood is
submitted which states that a wrongdoer is liable to any such person who is his neighbor.
Neighbor means that any person who is in proximity with the wrongdoer or is likely to be
harmed by the act of the wrongdoer (Bourhill v Young [1943]). (Norman 2004)
The duty of care is imposed on the wrongdoer when the affected person is reasonably
foreseeable by the wrongdoer Tame v New South Wales (2002).
If neighborhood concept along with reasonable foreseeability is satisfied then the duty of care is
said to be on the person performing the act.

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Beach of duty of care is the next step towards holding the wrongdoer liable. In the law of
negligence, the duty of care is said to be breached when the wrongdoer does not take proper care
which he should had taken in the said circumstances (Blyth v Birmingham Waterworks Co
(1856). In case the care taken by the wrongdoer is not appropriate then he is said to have
breached the duty. But in case proper care had been taken which should had been taken in the
like circumstances by a prudent person, then, the duty is not said to be breached. From the above
facts it is crystal clear that only taking care is not sufficient rather the level of care should be
proper in order to opt out of breach of duty of care. A level of care in one situation must not be
said to be sufficient in other as the care to be taken depends on the situation and varies with the
circumstances (Bolton v Stone (1951).
Injury or Damages is the last step to be satisfied in order to hold wrongdoer negligent. The
wrongdoer is said to be negligent when the injury is caused by breach of duty of care on the part
of wrongdoer. The wrongdoer is liable only in such case where the injury caused to the injured is
due to the act of the wrongdoer and not in case where the injury is caused to the injured due to
some other reason. There should be proximate relation between the act of wrongdoer and the
injury caused to the third party South Australia Asset Management Co v York Montague (1996).
The damage or the injury caused to the third party must be reasonably foreseeable and not too
remote. In case the injury caused is too remote in nature then the wrongdoer cannot be held liable
under the law of negligence. (McLure 2008)
When all the above principals of negligence are satisfied then only the wrongdoer can be held
liable under the law of negligence.
There are defenses which can be taken by wrongdoer in order to protect him from being liable.
When the injured himself contributes to his injury then it is a defense of contributory negligence.
In such case the liability is apportioned among the wrongdoer and injured accordingly (Joslyn v
Berryman [2003]. In case injured by his assent knowingly moves despite knowledge of danger,
then, in such case also the injured cannot claim from the wrongdoer as he himself submitted to
danger inspite of knowledge of the fact. This concept is known as Volenti non fit injuria.