Case Study Commercial Law

Question: Discuss about theCase Studyfor Commercial Law. Answer: Introduction A tort is a civil wrong done, under which, the actions of one of the parties, result in an injury or harm to the other party. In Australia, negligence is considered as a tort. Negligence occurs when a person fails to fulfill their duty of care which they owed to some other person and this failure results in a loss for such other party (Gibson and Fraser, 2014). In the following parts, the case of Tamara has been analyzed. Issue Whether or not Tamara can successfully sue Aldi Supermarkets in negligence for her losses? Rule Negligence occurs when an individual fails fulfill the duty of care and such actions result in a loss for the person to whom such a duty of care was owed. In order to establish that negligence occurred, the essential elements of negligence have to be established. These include the presence of duty of care, the breach of duty of care, resultant harm or loss, and remoteness. The first thing which has to be established is the duty of care (Greene, 2013). In Donoghue v Stevenson [1932] UKHL 100, the manufacturer of the bottle was owed a duty of care towards all such people who bought his bottle and consumed the drink from it, as per the court. Hence, when a snail was found inside the bottle manufactured by Stevenson, he was held in negligence, as he owed a duty of care towards Donoghue (Latimer, 2012). There also has to be a breach of this duty (Kelly Hammer and Hendy, 2014). As was seen in Vaughan v Menlove (1837) 3 Bing NC 467, an individual had to take actions which a reasonable person had too, and since the defendant failed to do so, a breach of duty of care was established (E-Law Resources, 2017a). The loss has to be substantial and not remote. The loss has to be foreseeable to establish negligence. In Wagon Mound (No. 1), or the Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2, due to the lack of foresseability of loss, the damages were held to be not recoverable. One defense which is often cited in negligence is contributory negligence (Harvey and Marston, 2009). When a person contributes towards the loss which they incur, as a result of negligence of the other party, they are said to be in contributory negligence. In such cases, the damages which are awarded to the plaintiff are reduced to the amount of the contributory negligence, which is decided upon by the courts (Dongen, 2014). For standing at the side of lorry, which contributed to Davies injuries, the damages awarded to him were reduced by the amount of his contributory negligence by the court, in Davies v Swan Motor Co [1949] 2 KB 291 (E-Law Resources, 2017b). In Raad v KTP Holdings Pty Ltd as Trustee for VM KTP Nguyen Family Trust [2016] NSW 2016 888, upon slipping over the wet tiles, the plaintiff got injured and initiated claims for damages against the defendant for negligence. As the defendant could not prove that efforts had been undertaken to keep the floor dry and non-slippery, he was held guilty of negligence. But, due to the swiftness with which the plaintiff moved, the court held that she contributed towards the injuries and accordingly, the damages awarded to plaintiff, were reduced by 10% for contributory negligence (Devitt, 2016). Application Aldi supermarkets, in the given case study, owed a duty of care towards all of its consumers. Applying Donoghue v Stevenson, a duty of care was owed here due to direct association of the supermarket with its customers. There was a failure to fulfill this duty of care, as they did not clean the puddle of melted ice cream, on which Tamara slipped. As per Vaughan v Menlove, the supermarket had to do what any other supermarket would have done, i.e. to clean up the puddle as soon as it occurred. Due to this, Tamara was gravely injured and had to spend a lot of money for her recovery. And as per Wagon Mound (No. 1), the loss was foreseeable as any person could slip on the puddle of melted ice cream. The loss was substantial as the general damages alone amounted to over $700,000. Since, all the elements of negligence are present, it can be stated that Aldi supermarkets committed a tort of negligence. As Tamara ran on a wet surface, she contributed towards her injuries, in the same manner as Davies did for his injuries in Davies v Swan Motor Co. Also, the supermarket could prove that they cleaned there surface in every 40 minutes, which is a reasonable duration for such a big place, which could not be proved in Raad v KTP Holdings Pty Ltd as Trustee for VM KTP Nguyen Family Trust. Because of this only, the damages were not reduced to a higher amount. So, her contribution, along with the proof of supermarket would reduce the amount awarded as damages. Conclusion From the above analysis, it can be concluded that Aldi Supermarkets committed the tort or negligence as they failed to fulfill their duty of care, which resulted in injuries for Tamara. But, as Tamara was guilty of contributory negligence, due to her running on wet surface, the amount of damages awarded to her would be reduced. Moreover, the proof laid down by the supermarket, regarding cleaning of surface, would further reduce the amount of damages. So, it is advised to Tamara, to initiate the case against Aldi supermarkets, as her contributory negligence would only reduce the amount by a negligible percentage, and she would successfully be able to recover a major part of her damages. References Devitt, S. (2016) A slip up - shopping centre liable for slip and fall on wet tiles. [Online] Lexology. Available from: https://www.lexology.com/library/detail.aspx?g=bdcef724-3c2e-482d-9d74-540bc1a44d6c [Accessed on: 26/01/17] Dongen, E.V. (2014) Contributory Negligence: A Historical and Comparative Study. Boston: Brill Nijhoff. E-Law Resources. (2017a) Vaughan v Menlove (1837) 3 Bing NC 467. [Online] E-Law Resources. Available from: https://www.e-lawresources.co.uk/Vaughan-v-Menlove.php [Accessed on: 26/01/17] E-Law Resources. (2017b) Davies v Swan Motor Co [1949] 2 KB 291 Court of Appeal. [Online] E-Law Resources. Available from: https://www.e-lawresources.co.uk/Davies-v-Swan-Motor-Co.php [Accessed on: 26/01/17] Gibson, A., Fraser, D. (2014) Business Law 2014 8th ed. Melbourne: Pearson Education Australia. Greene, B. (2013) Course Notes: Tort Law. Oxon: Routledge. Harvey, B., and Marston, J. (2009) Cases and Commentary on Tort. 6th ed. New York: Oxford University Press. Kelly, D., Hammer, R., and Hendy, J. (2014) Business Law. 2nd ed. Oxon: Routledge. Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited.