Ethics And Law Of Negligence Essay

Question:

Whether Aldi Supermarkets is negligent for the losses caused to Tamara and Can Aldi Supermarkets protect itself by availing the defense under the law of negligence?

Answer:

Relevant Law

As per the given facts, the present problem is related to law of negligence.

As per the law of negligence, every person is duty bound to act in a manner so that no harm is caused to anybody else. A person can be held liable under the law of negligence when there is breach of duty of care by him and such breach results in damage to any third person. Law of negligence was developed in Donoghue v Stevenson (1932). In Donoghue case, a wrongdoer has duty towards anybody who is his neighbor. A neighbor is a person who can be affected by the acts of the wrongdoer regardless he is known or stranger to the wrongdoer. (RN Moles, 2016)

So, a wrongdoer can be held liable under the law of negligence when there is duty of care casted and such duty is breached and due to such breach an injury is caused to the innocent. (P Latimer, 2012)

The basic essentials to prove negligence are:

1.Duty of care - Duty of care implies the duty fastened upon the wrongdoer so that his acts may not cause damage to anybody. The defendant is duty bound to take precautions so that his acts may not cause damage to any third party. The duty of the wrongdoer is to provide the care (Sullivan v Moody (2001). But, the duty can be imposed when the damage which can be caused by the acts of the wrongdoer is reasonably foreseeable by him, then, it is duty of the wrongdoer to provide such level of care to protect other from being affected by his acts. In case if the damage caused is not reasonably foreseeable then the duty to protect third party for such acts of wrongdoer cannot be fastened upon him (Burnie Port Authority v General Jones [1994]. Also, the duty is only imposed against those innocents who are the neighbors of the wrongdoer, that is, they are closely and proximately associated with each other ((Wyong Shire Council v Shirt[1980]). (Tomasic Et.al, 2002).

2.Breach of duty of care - In case when the duty is fastened upon the wrongdoer is not taken care of by him and he acts without taking any caution, then, the duty of care is said to be breached. In case where the wrongdoer had taken care but the standard of care taken by him is not adequate, then, the duty of care is said to be breached by him (R v Patel [2010]. This duty of care upon the wrongdoer is different and is dependent upon the circumstances. (Atkins et al., 2014)

The duty of care is said to breached when the wrongdoer does not acts in the way he should had been and such acts of wrongdoer harming the third party are reasonably foreseeable and are not remote. (Atkins et al., 2014)

Resultant Damage- There must be resultant damage to the third person by the acts of the wrongdoer i.e. the damage must be due to the acts of the wrongdoer and nothing else (Hodgkinson v Simms (1994). There must be proximity between the acts of the wrongdoer and the damage caused to the injured due to breach of duty of care by the wrongdoer (Naxakis v Western General Hospital (1999). The wrongdoer is only liable for the foreseeable damages caused to the injured and the injured can only be claim under the law of negligence when the damage caused to him is due to the breach of duty of care that was with the wrongdoer and he did not took care of the same. (Prue V, 2000)


But, a wrongdoer in order to safeguard himself has certain defenses that are:

1.Volunti non fit Injuria - As per the maxim volunti non foit injuria, a wrongdoer is not liable in case when the injured inspire of knowing about the danger assents to the same. In such cases when the injury is caused to the injured then he cannot hold the wrongdoer liable.

2.Contributory negligence - As per contributory negligence, if the injured is also responsible for his injury, then, in such cases the compensation to the injured is given accordingly and after analyzing negligence on the part of the innocent and the wrongdoer. The wrongdoer is proportionately liable to the injured and is only responsible for his part of negligence (Kalokerinos v Burnett[1996].

These legal principles are now applied to the facts of the case.

Application of law

It is submitted that Aldi Supermarket must make good the losses that are suffered by Tamara because Supermarket owns a duty of care against Tamara. The duty of care exits because Tamara and Supermarket are very closely associated with each other as all the acts of Supermarket will fall upon Tamar directly and thus Tamara is the neighbor of the store. Also, the impact of Aldi Supermarket actions is reasonably foreseeable and thus the store must provide protection to Tamara. This indicates that there is duty of care which Supermarket must provide to Tamara. But, this duty is not fully performed because the staff of the store was cleaning the aisle only after 40 minutes which is not an adequate kind of care because the store is continuously visited by various customers and the cleaning must be at more regular interval. So the level of standard is not met and because of this breach, injury is suffered by Tamara.

So, the store is fully negligent in its action but it can take the defense of contributory negligence because Tamara was running very fast because of which she fell with high speed and the injury which is caused to her is also very high because of her contribution. So, Aldi Supermarket can seek the defense to mitigate its liability.

Conclusion

It is advised to Tamara that she can sue the store for negligence because the duty to provide care to Tamara was not performed by the store as the aisle was slippery and no action was undertaken by the store to mitigate this danger against it6s customers. This breach has caused injuries to Tamara and thus Tamara has every right to sue the store.

But, the store can prove that Tamara was running very fast which has contributed to her loss and thus can seek the defense of contributory negligence.

References

Articles/Journals/Books

Atkins et al. (2014) Ethics and Law for Australian Nurses. Cambridge University Press.

R N Moles (2016) Law Reports, McAlister or Donoghue (Pauper) v. Stevenson (1932).

P Latimer (2012) Australian Business law, CCH Australia Limited.

Tomasic Et.al, ‘Corporations Law in Australia’ (2002). Federation Press.

Vines P, (2000) ‘ UNSWLawJl 25.

Case Law

Burnie Port Authority v General Jones [1994] HCA 13.

Donohue v Stevenson (1932).

Hodgkinson v Simms (1994).

Naxakis v Western General Hospital (1999) 197 CLR.

Kalokerinos v Burnett [1996].

R v Patel [2010] QSC 68

Sullivan v Moody [2001] HCA 59.

Wyong Shire Council v Shirt [1980] HCA 12.

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