Commercial Law: Tort of Negligence and Restaurant Liability

This case study examines a negligence claim under Australian Tort law, focusing on a situation where a restaurant patron, Komola, suffered harm due to a foreign object (lizard remains) in her food. The analysis applies the elements of negligence – duty of care, breach of duty, causation, and harm – to determine if the restaurant can be held liable. It concludes that Komola's representative can likely sue the restaurant for negligence, as the restaurant breached its duty of care, directly causing harm. The aim of awarding damages in tort law is to restore the injured party to their pre-incident condition, compensating for the sustained loss. This assignment provides a comprehensive understanding of negligence principles and their application in a commercial setting.

Running head: Question 0
commercial law
OCTOBER 27, 2018
student details:

QUESTION 1
The law for the negligence in Australia has been prescribed under the Tort law for
negligence. According to the tort for negligence, negligence has been defined as the failure of
exercising diligence and due care that would have been reasonably exercised by a prudent
person in the given circumstances. The tort of negligence expressly covers the harm caused
by carelessness. According to the tort of negligence, the first party must establish the
following explained elements of negligence claims, in order to sue the second party, in
negligence. Following are the elements to be considered
1. Duty of Care: The plaintiff has to establish that there existed a duty or an obligation
on the part of the defendant towards the plaintiff.
2. Breach of Duty: The second element that must be established in order to sue is that
there was a breach of the previously mentioned duty by the defendant.
3. Causation: In order to make the defendant held liable for the breach of duty, it must
be established that the loss or damage sustained were due to the cause of the particular
acts or omissions on the defendant’s part.
4. Harm: In order to claim the damages from the defendant, it must be proved by the
plaintiff that the defendant's breach caused a harm, loss, or injury. Thus, it must be
established that there was a loss of a foreseeable kind, and only then the defendant can
be held liable.
On application of the rules as stated above, the following findings must be noted-
Duty of care- In the given case, Komola, a senior lawyer in the local firm, found the
leftovers of lizard in the food. It was the duty of restaurant to take care of the quality of food
before serve on table
Breach of Duty- The offering food containing remains of half-eaten lizard is the clear breach
of the duty on the part of the customer. It was the duty of the restaurant to take the reasonable
care of food to be served.
Causation- Meghan and Catherine sustained paralysed from the neck down due to existence
of half eaten lizard in food, which was not duly placed in the clean place by the restaurant.
Thus, there is a direct impact of the breach of the duty causing harm to Komola.
Harm- As stated in the case study, while Komola rendered paralysed because of bad heart
condition. Komola has sustained severe and grave injuries to be able to sue under the
negligence.

QUESTION 2
Thus, it can be concluded that representative of Komola can successfully sue the
restaurant under the tort of negligence for the injuries sustained because of finding of half-
eaten lizard. On application of the rules of the relevant laws, it can be established that the
given case study fulfils the criteria laid down in this behalf.
Damages awarded in respect of a tort. The target of the award of damages in tort is to
put the injured party in the same position as he would have been in if the tort had not
occurred. Damages in tort aim to restore the claimant to his pre-incident position. The award,
therefore, generally focuses on restoring the status-quo and compensating for loss of his
bargain. In tort, no question of loss of bargain can arise: the claimant is not complaining of
failure to implement a promise but of failure to leave him alone.