Contributory Negligence Commentary on Tort

Question: Discuss about the Contributory Negligence for Commentary on Tort. Answer: Introduction One of the tort laws in Australia is the tort of negligence. Negligence takes place when a person, who owed a duty of care to some other person, undertakes or does something, as a result of which, the other person is injured or incurs a loss. An aspect or concept, which is used against negligence, is contributory negligence (Latimer, 2012). In the following parts, the case of Tamara has been analyzed, using these two concepts. Whether or not Tamara can sue Aldi Supermarkets for her losses due to their negligence? As highlighted in the introductory segment, negligence is a tort law, which fixes the liability on a person, for their failure in exercising the reasonable care, which a prudent person, in similar circumstances would undertake, and which results in an injury, loss or harm to the person to whom the duty of care was owed. Negligence takes place when there is a duty of care, this duty of care is breached, this breach results in a loss or injury, the loss is not too remote and there is a direct causation, and the loss is foreseeable. When a case of negligence is established, the aggrieved party can claim for damages in form of monetary compensation (Gibson and Fraser, 2014). The first step in establishing negligence is to establish a duty of care. In Caparo Industries plc v Dickman [1990] 2 AC 605, 618, the Court of Appeal gave a threefold test to establish the duty of care for establishing negligence. These included that the harm has to be reasonably foreseeable through the acts or conduct of the defendant; there has to be a relationship of proximity between the parties; and the imposition of liability has to be reasonable, fair and just (Lunney and Oliphant, 2013). In Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078, the damages were not awarded to the plaintiff, as the court held that the defendant could not be claimed to be negligent due to the lack of reasonable foreseeability of damage, as a result of his conduct (Swarb, 2016). The next step is to establish that the duty of care is to establish that the duty of care was breached (Harvey and Marston, 2009). In Paris v Stepney Borough Council [1951] AC 367, the Council was held in breach of duty of care, and as a result, negligent. Paris, in this case, was employed as a fitter in the garage of the Council. The Council was aware that Paris was blind in one eye and even then they failed to provide him the protective goggles to do his work. While he was working on a rusty bolt, a chip of metal flew and stuck in his good eye, due to which he was blinded completely. As it was the duty of the Council to provide Paris the necessary gear, they had to compensate Paris for his loss arising due to Councils negligence (Martin and Lancer, 2013). The damage has to be the result of such negligence and it has to be significant. If a loss is remote, negligence cannot be established. Only when all these elements are present, a case of negligence can be made (Latimer, 2012). Contributory negligence is the most common defense which is used to decrease the liability arising due to negligence. Under contributory negligence, the person who is injured as a result of negligence of the defendant contributes to the injury. And so, the amount of damages which are awarded to the plaintiff are reduced by the amount of contributory negligence, which is decided upon the discretion of the court (Dongen, 2014). In Hamilton v Duncan [2010] NSWDC 90, the plaintiff failed to maintain a proper lookout for the hole, even when he knew about the hole on which he had tripped. Moreover, he had even warned another person, who later on became the witness, regarding the presence of the hole in the ground, just moments before the accident took place. As a result, the plaintiff was declared as 30% contributory negligence and so, the damages were reduced by 30% (Bannerman, 2015). Application When a person enters any supermarket, it becomes the duty of the supermarket to ensure the safety of its consumers, while in their premises. And so, a duty of care was owed by Aldi supermarkets to Tamara, being their customer. Applying the threefold test given in Caparo Industries plc v Dickman, the loss was foreseeable. This was because any person could fall on a puddle of ice cream and such puddle had to be cleaned. There was proximity between the parties, as Tamara was a customer of Aldi Supermarkets and so, the supermarket owed a duty of are towards their customer. And in case, the supermarket is held liable for negligence, the imposition of liability would be reasonable, fair and just. Further, the case of Bolton v. Stone suggests that foreeseability has to be present, which was clear in this case, as any person could easily fall on wet surface. Failing to clean the surface, resulted in Tamaras injuries, in the same manner as was seen for Paris in Paris v Stepney Borough Council. Since all the necessary elements of negligence were present, it can be deduced that Aldi committed the tort of negligence. The defense which can be used by Aldi is that they had cleaned their supermarket on regular intervals, i.e. in every 40 minutes, for any spillage and hence, it was not their fault. Moreover, Tamara ran as she feared that the last piece of chocolate would be sold out, due to which she fell. She knew the surface was wet, and yet she ran, so she contributed to her injuries. And as was seen in case of Hamilton v Duncan, the amount of damages awarded to her would be reduced. Conclusion On the basis of above analysis, it can be concluded that Tamara can successfully sue Aldi supermarkets for their negligence. Though, the amount of damages which would be awarded to Tamara would be reduced by a percentage amount, due to her contributory negligence. And such percentage would be decided by the court. References Bannerman, D. (2015) Contributory Negligence In "Slip And Fall" Cases - No Control Over The Plaintiff's Own Action Or Inaction?. [Online] Bannermans Lawyers. Available from: https://www.bannermans.com.au/insurance/articles/public-liability/331-contributory-negligence-in-slip-and-fall-cases-no-control-over-the-plaintiff-s-own-action-or-inaction [Accessed on: 26/01/17] Dongen, E.V. (2014) Contributory Negligence: A Historical and Comparative Study. Boston: Brill Nijhoff. Gibson, A., and Fraser, D. (2014) Business Law 2014. 8th ed. Melbourne: Pearson Education Australia. Harvey, B., and Marston, J. (2009) Cases and Commentary on Tort. 6th ed. New York: Oxford University Press. Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited. Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford University Press. Martin, J., and Lancer, D. (2013) AQA Law for AS Fifth Edition. 5th ed. Oxon: Hachette UK. Swarb. (2016) Bolton v Stone: HL 10 May 1951. [Online] Swarb. Available from: https://swarb.co.uk/bolton-v-stone-hl-10-may-1951/ [Accessed on: 26/01/17]