The Supermarkets Potential Liability - Essay Example

Case Analysis: Potential Liability [Name] [Professor Name] [Course] [Date] Introduction In tort, one party can make claims against another for damages he sustains due to the actions of a third party, in spite of whether a pre-contractual relationship exists. In this situation, a party may be held liable for damages caused by a third party in a range of circumstances. Basically, the tort of negligence is based on the need for individuals to show common humanity to other1. Since the potential for liability is broad, specifically in regards to negligence, several defences have been established under the common law. This paper presents a case analysis of an injured customer in a supermarket and discusses the elements under which the supermarket’s potential liability can be determined. Balance of probabilities The central legal issue is whether the defendant is potentially liable in negligence for the plaintiff’s injuries. The case points out to the law surrounding claims in negligence. George should be advised that to establish the liability of Coles supermarket, the four elements of successful claims in negligence must be proved on a balance of probability. The first is proving whether Coles Supermarket owed the claimant (John) a duty of care regarding the damage he has suffered2. Second, the claimant must prove that the Coles Supermarket violated the standards of the duty of care. Third, the claimant must demonstrate that the supermarket’s breach of the duty of care caused the injury in question. Fourth, the claimant must prove that the injury he suffered is not remote from the breach. George should further be advised that for Coles Supermarket to be proved liable for negligence, the claimant must prove the existence of all the four elements failure to which the supermarket would not be liable3. Duty of care If John is able to prove to the court that a duty of care existed, he would then have to prove on the balance of probabilities that Coles Supermarket did indeed breach the standard of duty of care. In the case, consideration will be given to the fact that Coles Supermarket has professional expertise and that the case concerns an exercise of skill. Under the common law, John must demonstrate that the supermarket owed him a duty of care that it breached through its failure to meet standards of care, and that because of this failure, he suffered an injury4. It is critical to determine whether John was owed a duty of care, as tort in negligence is concerned with compensating those who suffered an injury of loss resulting from the lack of care of others. In the present case, a duty of care exists, since John is Coles Supermarket’s customer: Donoghue v. Stevenson5. Therefore, the law would expect Coles Supermarket to show the extent to which the competence is expected of an ordinary skilled worker within the supermarket when performing the tasks. Usually, a defendant who fails to fulfil the level of confidence resulting to damage is likely to be held negligent. In the present case, negligence can only be established by examining whether Coles Supermarket omitted or slacked in cleaning the mess6. However, since a customer who broke a glass jar and never informed the supermarket staff and since the glass was dropped at 10.05 am while accident happened at 11.00 am, it is not possible to argue that the supermarket was negligent since the spilled liquids are usually cleaned as soon as they are discovered, while inspections are done at 6am, 10am, 2pm and 6pm. Based on these facts, it appears that John would not have a very strong argument that the supermarket breached the requisite standard of care. Factual Causation To establish Coles Supermarket’s potential liability, it must be ascertained that on a balance of probabilities, the supermarket’s breach of its duty of care did actually cause John’s injury. Several tests can be used to establish causation. First is the “but for” test, where it must be indicated that if it was not for the defendant’s actions, John would never have suffered the injury. In the present case scenario, it is shown that had it not been for the actions of the customer, rather than the defendant, John would not have suffered an injury. It is also submitted that, rather than the inaction to clean the glasses, Coles Supermarket did not make substantial contributions to John’s injury. As indicated in the case McGhee v National Coal Board, the court held that the defendant could be liable when they made substantial contribution to the injury, and that it was not a condition to demonstrate that the defendant’s negligence was the only cause7. In another case, of Wilsher v Essex Area Health Authority8, the court held that the plaintiff had to satisfy the court that the breach of duty by the defendant was the material cause of the injury9. Hence, it is not sufficient to demonstrate that the Coles Supermarket increased the risk of the injury to occur by failing to clean the broken glasses. In the present case, Coles Supermarket might argue that Mary, who was responsible for John on full-term basis, had been negligent by letting John to walk alone and that indeed, it was a more substantial cause of the injury than Coles Supermarket. Additionally, Coles Supermarket could argue that Mary’s actions add up to or a novus actus interveniens, or an intervening act. Under the common law, an intervening event may happen after a breach of duty, as a result, contributing to the claimant’s injury10. An intervening act refers to an incident that breaks the chain of causation and demands that the original defendant is no longer liable for the claimant’s injuries. As established in the case, Chapman v Hearse11, an intervening act should be voluntary human act, which is deliberate, free and informed. Additionally, it should not be caused by the original defendant’s negligence. Remoteness or legal causation John must also prove that the injury was not too remote from Coles Supermarket’s breach. Just as the duty of care, the test for remoteness is legal rather than factual and constitutes one of the ways where the law delineates between an injury that can be compensated and that that cannot be compensated. The test for remoteness was showed in the case law, The Wagon Mound No 2 that established that, provided that the type of the injury or loss is foreseeable, it cannot be considered as remote despite that the chances of recurrence are unlikely12. In the present scenario, it is submitted that it was not foreseeable that Coles Supermarket could have seen the injury and prevented it. First, a customer dropped a glass jar and never told the supermarket staff. It should be noted that usually, the staff cleans up any spilt liquids immediately they are discovered. Hence, it can be argued that since it is a busy supermarket that caters for 8,000 customers each day, it could not have been practicable that the supermarket could have discovered the broken glasses within one hour. Second, the customer dropped the glass at 10.05 am and the accident happened at 11.00 am. Usually, the spilled liquids are cleaned as soon as they are discovered, while inspections are done at 6am, 10am, 2pm and 6pm. Therefore, it cannot be argued that the staff at Coles Supermarket could have foreseen the injury. Hence, since the negligence is too remote from the claimant’s injury, Coles supermarket cannot be held liable for negligence as was held in the case Palsgraf v. Long Island Rail Road Co13. In the present case, Coles Supermarket could argue in defence that the injury was not foreseeable. Hence, John has not potential claim against Coles Supermarket. Harm or injury John must prove that Coles Supermarket’s breach resulted to a pecuniary injury. Under the common law, the claimant may only depend on a legal remedy to the extent that he proves that he did suffer an injury. It implies that pecuniary loss is a crucial element for John’s argument against Coles Supermarket14. However, when damages are not a critical element, a claimant can win the case without having to show that he suffered a loss: Constantine v Imperial Hotels15. In the present case, negligence is however different since John has to prove his loss to be able to recover the loss. Pecuniary loss can be demonstrated in a range of ways. For instance, when an injured claimant shows that he had to pay medical bills and that he lost income or ability to generate income due to the injury16. In the present case, it is clear that although John suffered an injury inside the supermarket, the injuries would be considered as pecuniary loss only if he proves he incurred medical bills due to the injury, or lost income. Conclusion From the analysis, Coles Supermarket (the defendant) is not potentially liable for John’s (the claimant’s) injuries. Although the supermarket owed John a duty of care, the injuries were not foreseeable. Additionally, Coles Supermarket did not contribute substantially and directly to the injury. Books, Journals& Articles Bryden, Daniele, 'Duty of care and medical negligence,' (2011) 11(4) Contin Educ Anaesth Crit Care Pain, 124-127 Caron Hayes and Rocco Pirozzolo,' Access to Justice in lower value clinical negligence claims’, (2009) 15(6), AvMa Medcal & Legal Journal, 253,255 Field, Andrew, 'There Must Be A Better Way’: Personal Injuries Compensation Since The ‘Crisis In Insurance,' (2008) 13(1) Deakin Law Review, 68 Harpwood, Vivienne, “Principles of Tort Law” (Cavendish Publishers, 2000) Newnham, Helen, ‘When is a teacher or school liable in negligence?’ (2000) 25(1) Australian Journal of Teacher Education, pp.1-55 Wilson, Marie-France, Young Athletes At Risk: Preventing and Managing Consequences of Sports Concussions in Young Athletes and the Related Legal Issues,' (2010) 21(1), Marquette Sports Law Review, 259 Yule, Jennifer, ‘Negligent investigation by police : can a duty of care be found using the existing negligence principles in Australia?’ (2008) 1 Journal of Australasian Law Teachers Association, 379-389. Case Laws Constantine v Imperial Hotels [1944] KB Donoghue v. Stevenson [1932] AC 532 McGhee v National Coal Board, [1972] 3 All E.R. 1008, 1 W.L.R. 1 Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, The Wagon Mound no 1 [1961] AC 388 Wilsher v Essex Area Health Authority [1988] AC 1074 Read More