Suing a Person Based on Negligence - Essay Example

Case Study: Negligence Name: Tutor: Subject: Date: This essay will analyze the elements that are necessary in suing a person basing on negligence. In the scenario provided, Josh was injured because the staffs who were working in the supermarket fail to perform their duties according to the policy of the supermarket. This is a business law case and it is supported by a number of factors. With these factors in place, Josh will qualify to sue for damages he suffered while he was shopping for his girlfriend. However, Josh girlfriend will not qualify to sue both the supermarket attendant and the management of the supermarket because she was not part of the contract. In fact, both the staff and the supermarket manager were not aware of Josh’s girlfriend1. De Marco v Italo-Australian Club (ACT) Ltd [2010], established, as a result of negligence of duty of care, that the guest suffered physical injuries because of negligence. The plaintiff was compensated for damages on the ground of negligence. In the scenario provided in the case study, Josh knew that the supermarket management had a duty of care for all the customers who are shopping there. In addition, the Australian laws contain a section of liability of occupiers of premises. This Australian law dictates that the occupier of the premises owes a duty care to all the people visiting his premises. According to this law, the manager of the supermarket must not be the real owner of the premises; the test here is that who has the control of the premises? In order for Josh to be compensated successfully, he must prove that the occupiers of the supermarket owes a duty of care to customers shopping there and that He (Josh) had suffered physical injury as a result of the breach of duty of care by the occupier. The case of De Marco v Italo-Australian Club (ACT) Ltd [2010] is the first element in this essay that indicates that the occupiers of the premises are liable for injuries that are suffered by the customers while shopping. Another case which proves that the occupier is responsible for the injuries that are caused in his premise was heard in the cases of Symons v Cedar College Inc [2012] SAIRC. In this case, the Magistrates Court of South Australia had accused the Cedar College Inc for breaching duty of care to the fans of sports that were taking place on their playing field. A supermarket employee breaches the duty of care by not ensuring that the goods are arranged in a manner that is required2. Josh had relied on the fact that the management had a duty of care to all the customers that are shopping on their premises. Furthermore, Josh knew that the walking part within the supermarket was clear; he did not expect that the trolley full of watermelons will be left in the aisle because customers are passing through the aisle when picking goods on the shelves. According to Australian laws, for the issue of negligence arises, Josh needs to satisfy that the following five elements existed. Some of the elements that are essential for establishing a prima facie case of negligence include the existence of a legal duty to exercise reasonable care. This element is applicable in this case study. The supermarket manager fails to ensure the safety of the customers in the supermarket. The manager is in charge of all the employees and he must ensure that the organizational policy is implemented. Another element that existed in the case study is that there was a failure to exercise reasonable care by staff. The employees working in the supermarket did not exercise enough care to ensure that the customers are safe. An evidence for this is shown when Josh stumbled backwards, he slipped on a grape that was likely to have been dropped on the ground by another customer. This shows that the employees were neglecting some of the things that can even be done by a common man. It is the duty of employees to ensure that goods in the supermarket are stocked well to avoid incidents of falling and causing injuries to customers. The third element is the cause of physical injury due to negligence conduct. In the case study, Josh was physically injured because the employee who worked at the supermarket neglected his responsibility. Another essential element is the physical harm in the form of actual damages. Josh was physically harmed and he can qualify for actual damages. Finally, the proximate cause clearly shows that the cause of the harm is within the scope of liability. Josh was injured in the supermarket because the staff was negligence3. Josh can also sue the supermarket relying on the doctrine of res ipsa loquitur, which is the Latin for “the thing speaks for itself.” Basing on this doctrine, Josh can successfully sue the supermarket because the staffs who were working at the supermarket acted negligently, even without other proof of misconduct. This doctrine will apply to the situation because it is not usual for supermarket employees to leave trollies along the aisle. This is a clear indication of negligence. The supermarket manager himself apologized indicating that the policy of an organization requires the staff to ensure that the sidewalk of the supermarket is safe for customers. In the case of Coles Supermarket Australia Pty Limited v Haleluka [2012] NSWCA 343, the Coles Supermarket Australia Pty Limited was ordered to compensate a plaintiff who was hit by a trolley whilst shopping in one of its stores. Basing on the decision of this case, Josh can as well sue the supermarket for the careless actions of its employees. The effect of the negligent act had a lot of impact. First, because of the careless act in the supermarket, Josh was injured and as a result, he did not afford to cook for his girlfriend. Furthermore, Josh missed a gold medal in the 400m Butterfly race. In fact, Josh has to seek for double compensation, that is for not spending the night in the hospital instead of cooking for his girlfriend and secondly for missing a gold medal4. In the case of, Strong v. Woolworths Limited T/as Big W and Anor, the court ruling was that the Woolworths were negligent because they fail to clean and remove a greasy potato chip from the floor of one of its shopping centers. As a result of that negligence, Kathryn Strong fell on the floor and suffered serious injuries. She successfully sued Woolworths and she was awarded damages of $580,299. That case was similar to this one. Josh fell on the floor because he slipped on a grape that was likely to be have dropped by customers who was shopping on the supermarket. In the case of “Fitzsimmons v Coles Supermarkets Australia Pty Ltd [2013] NSWCA 273” the complainant sued the supermarket of negligence. The complainant fell on the floor and got injured because the floor was wet. The court decision was that the there was an element of negligence. The occupier of the premises must ensure that customers and visitors are safe in using the building. This reflects the issue of Josh. Josh got injured because of negligence, the supermarket manager said that the floor was cleaned 15 minutes before the accident occurred As per the policy of that supermarket, the cleaning of the floors is done at an interval of one hour. However, when the supermarket is busy, it is recommended that the floors should be cleaned regularly to reduce chances of accidents. This policy needs to be implemented to avoid issues that are likely to arise. Furthermore, court cases can affect the image of the supermarket because customers will start avoiding the certain supermarkets5. In using the rule in Norton Australia Pty Ltd v Street Ice Cream Pty Ltd (1969) 120 CLR 635, it will be clear that it is essential to take necessary steps in bringing dangers that they ought to have known to the attention of the likely users. The fact that supermarket has no warning signs on the sidewalks is not enough excuse for the negligence act. Other cases that support the above argument is “Gonoghue v Stevenson [1932] AC 562”. In this case, some of the elements existed was that the plaintiff was liable for the tort of negligence. The duty of care existed, but the plaintiff did not take any action. In the case of Josh and Supermarket, the employees were supposed to ensure that all the visitors or rather customers were safe in entering, shopping and leaving the supermarket. A reasonable person in the supermarket would have seen that leaving trolley full of watermelons in the sidewalk would be dangerous and could easily cause injuries to the customers. The element of duty of care existed, but the entire staff ignored it. Josh needs to seek for compensation basing on this element. In summary, the supermarket manager should know that customers are deliberately not going to supermarket to injure themselves, but they are going purposely to carry out shopping. It is the obligation for the supermarket management to ensure that the premises are safe for shoppers. Cluttering the aisle with trolleys of watermelons so that they can stock the shelves during the day and especially at the busy periods is not satisfactory conduct. Such conduct is the potential dangers to the customers who are shopping. There should be an occupational health and safety issues that the supermarket must address and comply with it. In this case, it failed and Josh was injured. Josh needs to seek for significant compensation. Conclusion In conclusion, Josh should seek for compensation for the injuries he suffered. Basing on the case laws shown above, it is evident that Josh will be compensated for injuries, failing his fiancée and for missing commonwealth games. The five elements provided shows that the supermarket had a duty to care for his customers, but they fail to perform that obligation. Bibliography Articles and Books Carvan, J. (1999). Understanding the Australian legal system. LBC Information Services. Mortensen, R. (2006). Homing devices in choice of tort law: Australian, British, and Canadian approaches. International and Comparative Law Quarterly, 55(4), 839. Pierce Jr, R. J. (1980). Encouraging Safety: The Limits of Tort Law and Government Regulation. Vand. L. Rev., 33, 1281. Skene, L., & Smallwood, R. (2002). Informed consent: lessons from Australia.BMJ: British Medical Journal, 324(7328), 39. Trindade, F. A., Cane, P., & Lunney, M. (1993). The law of torts in Australia (p. 663). Oxford University Press. Cases De Marco v Italo-Australian Club (ACT) Ltd [2010], Gonoghue v Stevenson [1932] AC 562 Symons v Cedar College Inc [2012] SAIRC Norton Australia Pty Ltd v Street Ice Cream Pty Ltd (1969) 120 CLR 635, Read More