Stott's College Law Assignment: Torts and Negligence Analysis

This assignment addresses the fundamental principles of tort law, focusing on negligence. It begins by defining a tort as a civil wrong and outlines the relevant legislation in Victoria, Australia, specifically the Wrongs Act 1958. The assignment explains the concept of duty of care, referencing the Caparo test for establishing its existence, which includes the elements of proximity, foreseeability, and fairness. It also discusses the essential elements of negligence, including the failure to take precautions and the requirement for the claimant's loss to be a result of the defendant's negligence. The assignment then applies these principles to a case involving a slip-and-fall incident in a supermarket, analyzing whether the supermarket owed a duty of care, failed to take adequate precautions, and whether the claimant suffered a loss due to the supermarket's negligence. Finally, the assignment explores potential defenses, such as contributory negligence, which the supermarket could use to limit its liability. The assignment concludes by examining whether an apology from the manager could be used as a defense.

Fundamental
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Running Head: FUNDAMENTAL LAW 0
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Student’s Name

Fundamental Law 1
Contents
Answer 1..........................................................................................................................................2
Answer 2..........................................................................................................................................3
Answer 3..........................................................................................................................................4
Answer 4..........................................................................................................................................5
Bibliography....................................................................................................................................6
Legislation 6
Books/Journals 6
Case Laws 6
Other Resources 6

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Answer 1
A tort can be understood as a civil wrong. Provisions related to the same are mentioned
common law as well as under statue. Different states of Australia have different legislations
containing the provisions related to civil wrongs. In Victoria, such provisions are mentioned
under Wrongs Act 19581.
Different kinds of torts are there and negligence is one of them. It is a circumstance
where a person fails to carry his/her standard of care. Now the issue is to check what a standard
of care refers to. A standard of care or duty of care is an obligation to behave reasonably and
responsibly. To check the presence of such duty in other relations, a test has been established
under the case of Caparo Industries plc v Dickman2. The test is known as the Caparo test. The
test set out four conditions to check the presence of a duty of care. The first condition states that
to establish a standard of care the defendant must carry a proximate relationship with the
claimant. As per the second requirement of the subjective test, risk involved in a situation must
be foreseeable at the end of the defendant. The last condition states that holding defendant must
be fair and just3. If all the three conditions satisfy in a case, then it is to assume that, a duty of
care exists at the end of the defendant.
Presence of duty of care is an important topic of discussion as it is an essential element to
establish a claim of negligence. In addition to the presence of standard of care, other elements are
also required to be there. These elements are known as essentials of negligence. Another
essential of the negligence states that a person who owes such duty, must fails to take a
1 Wrongs Act 1958 (Vic)
2 Caparo Industries plc v Dickman [1990] UKHL 2
3 E-lawresources.co.uk, Negligence - duty of care (E-lawresources.co.uk) < http://www.e lawresources.co.uk/Duty-
of-care.php>.

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precaution. Section 48 of the act states that a person seems fail to take precaution where the risk
could be foreseen, the same was significant and could be prevented by taking necessary steps. As
per section, 48(2) to check that risk was foreseeable court check the probability and likeliness of
harm. Section 50 of the act states that a duty of care seems to be satisfied in those cases where a
person who owes such duty provides warning to plaintiff in respect to associated risk4.
As per the provisions and principles of section 51 of the act, the loss happened to a
claimant must be a result of negligence conducted by the claimant5. It means if claimant suffered
from a loss but the lead reason behind the same is not the negligent act of defendant then this
does not amount to a successful claim of negligence. If all these four essentials exist, the
claimant becomes eligible to initiate a claim of negligence.
Answer 2
If to have a look after the facts of the case presented hereby this is to state that, the person
named Kyle went supermarket where he slipped on a piece of grape. Resulted from this, he broke
his hand. Here all the requirements of the claim of negligence seem to be fulfilled. Firstly using
the Caparo test, supermarket owed a duty of care as all the three conditions are satisfied. The
relationship between supermarket and Kyle was proximate as Kyle was a visitor to the store.
Secondly, the supermarket had reason to believe that due to anything placed on the floor, a
visitor could lose his/her balance and therefore the accident happened to Kyle was foreseeable.
At last, holding a supermarket liable in the case looks just and fair. Hence to state that a duty of
care existed on the part of the supermarket.
4 Patricia J. Staunton and Mary Chiarella, Law for Nurses and Midwives (Elsevier Health Sciences, 2016).
5Legislation.vic.gov.au, Wrongs Act 1958 (Legislation.vic.gov.au) <
http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/LTObjSt5.nsf/
DDE300B846EED9C7CA257616000A3571/F1F5385B484503F3CA2577C1001B5BE4/$FILE/58-6420a103.pdf>.

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Moving towards the second element of negligence failure to take precaution, the same
also was presented in the case. The supermarket was required to take precaution but the same
fails to do. The risk was foreseeable, significant, and could be preveted by taking necessary
steps. The fact that the staff had to check the floor every hour is not enough to fulfill the duty but
as per section 50 of the act, to make the claim of satisfaction of duty, supermarket was require to
provide warning to Kyne. At third, Kyle suffered from a loss of physical injury as the accident
broke his hand. Lastly, as per section 51 of the act the necessary condition behind injury of Kyle
was the negligent act of the supermarket. If supermarket would have acted responsibly then
injury was not expected to be there. As all the elements of negligence are there, Kyle is entitled
to sue the supermarket for negligence conducted by the same.
Answer 3
Defendant may use some excuses to limit or avoid their liability whenever claimant
brings a claim of negligence. The most common type of defense that is generally used by
defendants under Tort Law is the defense of contributory negligence. Section 26 of the act states
that a situation when claimant him/herself acts negligently in addition to the defendant, then such
defense can be used6. In other words, this is to state that if any act of claimant contributes to the
accident then the defendant can use such defense. The defense leads to a benefit of the reduction
of liability for defendants.
In the given case too, Supermarket can use the defense of contributory negligence
because Kyle was also negligent in his action. He was doing two activities together and was
distracted because of that did not see the piece of grape. Therefore, this defense can be used.
6 Classic.austlii.edu.au, Wrongs Act 1958 - Sect 26 (Austlii) <
http://classic.austlii.edu.au/au/legis/vic/consol_act/wa1958111/s26.html>.

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Answer 4
No, Kyle cannot rely on apology as by doing so the intention of avoidance of liability
reflects. While apologizing, manager stated supermarkets policy to check the floor every hour.
Here it shows that manager was trying to prove that supermarket fulfilled it duty of care and was
using this policy as defense.

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Bibliography
Legislation
Wrongs Act 1958 (Vic)
Books/Journals
Staunton, Patricia J. and Mary Chiarella, Law for Nurses and Midwives (Elsevier Health
Sciences, 2016)
Case Laws
Caparo Industries plc v Dickman [1990] UKHL 2
Other Resources
Classic.austlii.edu.au, Wrongs Act 1958 - Sect 26 (Austlii) <
http://classic.austlii.edu.au/au/legis/vic/consol_act/wa1958111/s26.html>.
E-lawresources.co.uk, Negligence - duty of care (E-lawresources.co.uk) < http://www.e
lawresources.co.uk/Duty-of-care.php>
Legislation.vic.gov.au, Wrongs Act 1958 (Legislation.vic.gov.au) <
http://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/LTObjSt5.nsf/
DDE300B846EED9C7CA257616000A3571/
F1F5385B484503F3CA2577C1001B5BE4/$FILE/58-6420a103.pdf>.