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BB107 Commercial Law
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BB107 Commercial Law
0 Download5 Pages / 1,175 Words
Course Code: BB107
University: Melbourne Institute Of Technology
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Country: Australia
Question:
Discuss about the Commercial Law Against Aldi Supermarket.
Answer:
Issue
Tamara was running towards her favorite chocolate but unfortunately she slipped on melted ice cream and she broke her neck. The issue in this case is whether she may successfully bring a claim of negligence against Aldi supermarket.
Rule
Negligence is the failure to do something that one is ordinary circumstances expected to reasonably do or it can also be an act that a reasonable person guided by normal considerations would not do (Blyth v Birmingham Waterworks Co, 1856). Lord Artkin remarked that one should make sure that his acts or omissions must not cause harm to the neighbor who is any person who is likely to be affected by the repercussions of ones acts or omissions (Donoghue v. Stevenson, 1932). In a claim of negligence there must be an existing duty of care owed to the claimant, the duty must be breached and because of the breach the claimant was injured (Grant v Australian Knitting Mills, 1936). To establish a duty of care the court must apply a three- stage test that was originally founded in Caparo Industries v Dickman (1990).
The first test is whether the repercussions of the defendant’s acts or omissions were reasonably foreseeable in those circumstances. Second, the courts will seek to know whether a relationship of proximity existed (Home Office v Dorset Yacht Club, 1970). The court in Caparo Industries v Dickman (1990) held that a relationship of proximity did not exist. Lastly the court will seek to know whether a decision to impose a duty will be just, and fair.
If the court finds that a duty care existed the next task is for the plaintiff to prove that the duty was infact breached. The court here will examine the standard expected and the general position is that that the standard should be that of an ordinary skilled man (Bolam v Friern Hospital Management Committee, 1957). To successfully show that the defendant breached the duty the court will investigate the degree of risk that was involved. The court will also seek to know whether the risk was known to the defendant (Haley v London Electricity Board, 1964). It has been held in Paris v Stepney Borough Council (1951) that the court must find that the harm of injury suffered is a serious one. In proving the breach of duty the court will also seek to know whether any reasonable precautions had been taken to prevent the harm. To prove negligence the defendant must have failed to take any precautions (Latimer v AEC Ltd, 1952).It must be evidenced in court that the damage was caused by the defendant breaching the duty of care. The claimant must apply the ‘but for test’ to show that the injury could not have occurred but for the defendants breach of duty (Barnett v Chelsea & Kensington Hospital, 1968).
When the claimant has proven the elements of negligence the defendant has the option of applying the following defenses;
Contributory negligence
The defense of contributory negligence is to the effect that the defendant can assert that the claimant did not pay heed to his safety and therefore he was harmed. In Froom v Butcher (1976) the defendant’s application of Contributory negligence as a defense succeeded and the court noted that plaintiff was also negligent because of an omission to tie a safety belt.
Volentis non fit injuria
The defendant may use this defense to claim that the claimant volunteered to be harmed. This is usually a very weak defense for the defendant.
If a plaintiff successfully shows that the defendant was negligent the claimant will be entitled to the following remedies;
Special Damages
This kind or remedy is awarded for pure economic loss. The claimant will be entitled this remedy if he incurred medical bills and/or suffered a loss of income.
General Damages
This remedy is awarded to the claimant for non-economic losses such as pain, suffering and emotional distress.
Application
According to the neighbor principle enunciated by lord denning the customers who visit Aldi Supermarket are neighbors and within the meaning of Lord Artkins definition of a neighbor. It follows that Aldi Supermarket must put them in contemplation to and prevent any harm occurring to them since they are likely to be affected by the consequences of their acts or omissions. Aldi Supermarket has a duty of ace because the injury that Tamara has suffered was foreseeable. It is foreseeable that a customer will easily slip on melted ice cream if not wiped. Because Tamara was a customer to the supermarket it can be concluded that there was sufficient proximity in the relationship between Aldi supermarket which is the potential defendant and Tamara who is the potential claimant.
There was a glaring risk that Tamara would slip on the melted ice cream and this risk was known to the management of the supermarket. Relying on the foregoing assertion it can be said that Aldi Supermarket was in breach of the duty of care. However, while proving damage Aldi Supermarket can argue that the frequently clean the melted ice cream after every forty minutes and thus they had taken reasonable precautions before the Tamara slip. This claim is unlikely to succeed because a rebutting argument can be that they ought to check it the spills more frequently than after mere forty minutes. Tamara’s argument as the claimant may be that the skill exercised fell below that of an ordinary skilled person. Conversely, Aldi Supermarket may claim that the Tamars’s injury would not have occurred even with the melted ice screams on the floor because she was running.
Tamara was running on a slippery floor that she could easily slip if wet and the argument for Aldi Supermarket may be that she was reckless in taking care of her safety and hence claiming that she was contributory negligent. It is important to note that this defense has a higher chance of succeeding than the defense of Volentis non fit injuria. However, if Tamara successfully proves that Aldi Supermarket was negligent she will be entitled to special damages as a result of the medical expenses she may incur in treating her broken back. General damages will be awarded to her is she has suffered any shock, emotional distress and pain.
Conclusion
Considering the fact provided and the applicable law in the tort of negligence it is the conclusion that Aldi Supermarket has satisfied all the legal requirements for a successful claim against them. Tamara is, however, advised that the defense of contributory negligence is applied by Aldi Supermarket is likely to be successfully.
References
Barnett v Chelsea & Kensington Hospital (1968)3 All ER 1068
Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781
Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
Caparo Industries v Dickman (1990) 2 AC 605
Donoghue v. Stevenson (1932) UKHL 100
Froom v Butcher [1976] QB 286
Grant v Australian Knitting Mills (1936) A.C. 562
Haley v London Electricity Board (1964) 3 WLR 479
Home Office v Dorset Yacht Club (1970) AC 1004
Latimer v AEC Ltd (1952) 2 All ER 449 Paris v Stepney Borough Council (1951) 1 All ER 42
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