Proving Negligence in Cases of Injury Caused by Failing to Act - Case Study Example

BUSINESS LAW STUDENT NAME PROFESSOR’S NAME STUDENT NAME DATE Advice to George This essay discusses the requisite elements for proving negligence in cases of injury caused by failing to act. The area in business law focuses on the duty of care imposed on people towards others and the remedies available for negligence. The essay will also discuss occupier’s liability in negligence for harm or injury caused to persons within their premises. The issue is whether the supermarket is liable for John’s injuries? The issue arose when a customer dropped a glass jar of honey causing the jar to smash and honey to spill over the floor. John who had poor vision trod on the broken glass of the honey jar and severely injured his foot. The law of negligence as defined in the case of Tame v NSW (2002) 211 CLR 3171 the court stated that the law concerns itself with carelessness only where there is a duty to take care and where failure in that duty causes damage. Negligence is a tort, which is a civil wrong. In the case of Donoghue v Stevenson [1932] AC 5622 Lord Atkin demonstrated what constitutes negligence. Lord Atkin stated that there is a rule to love ones neighbor and that one must not injure your neighbor. In law a neighbor is someone is persons who are closely and directly affected by ones act and that one ought to reasonable to have them in mind to the acts or omissions which are called into questions (Herald et al., 2012). In simple terms, negligence is the neglect of a legal duty involving a duty, breach and resultant damage. John fits the description of a neighbor because he visited the store as a customer, and therefore the supermarket owed him a duty of ensuring that it was safe and free from any obvious hazards or risks. In the case of Rylands v Fletcher (1868) LR 3 HL 330 the court stated that where there is physical loss or an injury, then duty is easy to identify and apportion3. The case involving John is rather simple since there is injury suffered and therefore finding who is liable for his injuries is rather easy. In ascertaining duty of care, one of the main elements in negligence cases is foreseeability. In the case of Wyong Shire Council v Shirt (1980) 146 CLR 404 the court held that in determining foreseeability, then the risk must be real, that is a reasonable person would not have brushed it aside as being farfetched or fanciful. This means that the occupier of the building needs to have taken reasonable steps to ensure that as far as is reasonably practicable that the premises is free from any defect (Flemming, 1998). In consideration of John’s case, was it reasonably foreseeable that John would likely suffer injury as a result of smashed jar and honey spilt on the floor? There was reasonable foresee ability that any person including John would suffer harm and injury as a result of the failure to clean the mess left by the smashed jar. The other element in negligence is proximity. Proximity in negligence refers to the nearness or closeness or directness of the relationship between the particular act or cause of action and the injury sustained5. In Bryan v Maloney (1995) 182 CLR 609 the court stated that a duty of care arises under common law if there exists a relationship of proximity between the parties with respect to the act or omission and the injury. Despite the fact that the applicability of proximity being criticised in Sullivan v Moody (2001) 207 CLR6 that foreseeability is not sufficient to give rise to a duty of care and at the same time proximity is relevant in cases that are not analogous to cases where duty is established. The issue is whether Cole Supermarket had reasonably foreseen that a person with poor vision would walk in the stores unattended? In this case it is important to consider whether a reasonable person would have seen the risk and walked sideways or was it an obvious risk for persons with good eyesight and those with not. It is reasonable to conclude that the risk was obvious and reasonably foreseeable and hence the Supermarket had breached its duty of care towards John. It is important to state that as held in the case of Sullivan v Moody (2001) 207 CLR 562 the court stated that the fact that the act is foreseeable, that a careless act on the part of one person may cause harm to another does not mean the first is subject to legal liability. In this case, Mary was the full-time carer responsible for John who had poor vision and Marry often accompanied him on his shopping trips. On that particular day, Mary talked with a friend and John continued down the aisle and got hurt. The question is whether Mary was negligent? In consideration of the decision in Sullivan v Moody (2001) the fact that another person had failed to perform their duty, that person is not liable for the acts of negligence done by Mary. In analyzing the two elements of proximity and foreseebility, it is important to analyse the legal position after the decision of Caparo Industries Plc v Dickman [1990] 2 AC 6057. The Caparo test simply requires that the damage suffered by the plaintiff be reasonably foreseeable, that there was a relationship between P and D sufficiently proximate and if so, then it is fair, just and reasonable to apply duty of care. Statutory provisions in negligence overrides the application of common law in negligence claim and this is in regards to the Civil Liability Act (CLA) 2002 (Cth). Section 5B (1) of the CLA 2002 states that a person is not negligent in failing to take precautions against a risk of harm unless it is foreseeable, the risk was not significant and a reasonable person would have taken precautions. Section 5B (2) states that in determining whether a reasonable person would have taken precautions against a risk of harm, then one would consider the probability that the harm would occur if care were not taken, the likely seriousness of the harm, burden of taking precautions to avoid risk of harm and the social utility of the activity that creates the risk of harm. The omission must have caused the harm. The CLA 2002 at section 5D states that in determining negligence, then negligence needs to be a necessary condition of the occurrence of harm (factual causation) and that it is appropriate that the scope of the negligent person’s liability to extend to the harm caused (scope of liability). An occupier of a building or premises is required to take such care as is reasonable in the circumstance in order to avoid a forseeable risk of injury (Clarke et al., 2013). It is important to state that an occupier must take into account the magnitude of the risk, the degree of probability and other factors to ensure that the risks are not ordinary and obvious8. In the case of Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 4199 the court held that the obviousness of risk depends on a particular case, the specific circumstances on the foreseeability of harm. The court in finding that a duty of care existed, the patch was obvious and apparent to a person looking down as they walked across the car park , but the oil and grease patch were an obvious risk. In the case of John, the occupier had failed to eliminate an obvious risk in the premises and hence was liable for injuries suffered by John. The essay has established that in Coles Supermarket is liable for the injuries suffered by John when he trod on broken glass from the honey jar and injured his foot. The fact that Coles Supermarket is an occupier of the building and is under a duty to ensure that there is clean up of liquids as soon as is discovered and check on any spillage. The fact that it is running a business, it has the duty of ensuring that its clients are safe from any hazards or foreseeable risk. It is immaterial for Coles Supermarket to state that Mary was negligent in taking care of John because broken glass and honey are an obvious risk for any reasonable person and therefore are liable for injuries suffered by John. In any case John sues for negligence under occupier’s liability then he is likely to be awarded damages for injuries suffered by him. It is material to note that both statutory law provisions and common law provisions will declare Cole Supermarket liable for breach of duty of care. REFERENCES Civil Liability Act 2002 (Cth) Clarke, A.D., Devereux, J.A, O’Reilly, J & Werren J. (2013) Torts: A Practical Learning Approach , 3rd ed, Sydney: Lexis Nexis Flemming, J.G. (1998). The Law of Torts.9th edn. Sydney: Lexis Nexis, Harold Luntz et al, (2012). Torts: Cases and Commentary, 7th ed, Sydney: Lexis Nexis, pp 1–28; 74-77 Cases Bryan v Maloney (1995) 182 CLR 609 Caparo Industries Plc v Dickman [1990] 2 AC 605 Phillis v Daly (1988) 15 NSWLR 65 Rylands v Fletecher (1868) LR 3 HL 330 Sullivan v Moody (2001) 207 CLR 562 Timberland Property Holdings Pty Ltd v Bundy [2005] NSWCA 419 Read More