BUS503 Principles of Commercial Law

Brett is a first year student at USC and is studying Leisure and Event Management. Annie and Brett are in the same Business law and Ethics class (Brett thought the course might be too hard and left it ‘til his last year). Annie is quite keen on Brett. She thinks his clothes are a bit dated and he seems a bit sleepy but generally she likes him.

Annie knows that Brett works at the Tavern. She decided to have her 18^th birthday party there and hoped that Brett would be on duty … and he was. Brett thinks Annie is nice but he’s rather more interested in her friend Candice, who is a bit older, she’s 19.

On the night of the party, Brett was the manager on duty. It was a long and busy night and Brett had to help behind the bar because one of the bar staff had called in sick. At around 11:00 pm, David, who is employed at the Tavern as a ‘glassie’ (someone who picks up glasses from the tables) approached Brett, who was tending the bar, and told him that someone had been sick near the main door.

“Have you cleaned it up, then?” yelled Brett over the noise of the party.

“Yeah, yeah,” said David “But it’s an awful mess.”

Brett thought he’d better go check but just then Candice came up to the bar to order. Brett nudged past the other bar attendant to serve her and completely forgot about the ‘awful mess’.

Annie could see Brett smiling at Candice and drank more tequila. By the end of the night Annie was very intoxicated. About 1:00am, she was ready to head home. She stumbled toward the main door and in a final attempt to gain Brett’s attention turned to wave him goodbye.  She slipped on the ‘awful mess’ and fell on her back with a thud. Annie was wearing the latest fashion in stilettos – shoes with two inch platforms and 5 inch, very narrow heals. As she fell the right heel of her shoe broke away from the sole causing a particularly twisted, heavy fall. It turns out that someone had spilt cream from the birthday cake onto the vomit on the floor creating a doubly slippery surface, according to forensic investigations.

Annie sustained a fracture to her lower back and will need surgery. She will have to lie in bed for some months in order to recover. She’ll have to give up her part-time job at Safeway for at least six months. Fortunately no one else was injured. It was reported that the mess was seen and avoided by others at the party.Annie’s interest in Brett has turned sour. She wishes to sue Brett in Negligence. Advise her.

Your work in this task is assessed according to three main criteria. These are:

• Knowledge of relevant business law and ethical principles and sources
• Analysis and reasoning to generate conclusions
• Structure, written expression and presentation

Tort of negligence is considered as situation in which one person owns duty of care towards the other person, and fails to do something that any reasonable person would do or would not do, and such failure causes damage or loss to another person.

In other words, if any person sues other person under tort of negligence then such person is seeking financial compensation in the form of damage. The main aim of this is to put the person in the similar position if negligence had not occurred. On the basis of following questions negligence is determined and it is necessary that all four questions must be satisfied, and even if one question is not satisfied then no negligence has been occurred.

• Whether any duty of care is owned by defendant towards the plaintiff?
• Whether such duty of care is breached by defendant?
• Whether plaintiff suffers any injury or damage?
• Whether such injury or damage is caused because of breach of such duty or care? 

Duty of Care: duty of care is considered as legal obligation under which person is responsible to avoiding causing harm and it arises when harm is reasonable foreseeable in case care is no taken. It must be noted that there must be a sufficient relationship of closeness between the defendant and plaintiff for the purpose of existence of duty of care. There are number of examples which define such relationship such as relationship between doctor and patients and drivers and other road users.

This can be understand through case law Donoghue v Stevenson 1932 AC 562, this case was eventually filed before the House of Lords in London. The main issue in this case before the Court was whether Mrs. Donoghue can bring action against the manufacturer of ginger beer under tort of negligence.

Court held that Mrs. Donoghue can take action against manufacturer of ginger beer because manufacturer owns duty of care towards customer when those products are prepared. Therefore, Mrs. Donoghue can take action against the manufacturer of ginger beer. 

Breach of duty of care: for the purpose of establishing breach of duty of care, Court will consider the standard of care that is expected in those situations from defendant. In case defendant acted in unreasonable way or their actions does not match or fall below the expected standard of care then it is considered as breach of duty of care. Some examples of failure to meet standard of care are:

In case drivers fail to obey the rules related to traffic lights which cause accident.

In case law Dorset Yacht v Home Office, Court held immunity is not provided to government from suit if they failed to prevent the escape of juvenile offenders. In other words, every member of society owns duty of care towards others. 

Determining whether breach cause injury: There are some cases in which it is very easy to determine the cause of injury such as person slips on floor because it is wet and breaks his arm, in this it is very easy to determine the cause of injury because only single cause is included and clear connection is established between the wet floor and broken arm.

There are some cases in which it is not easy to determine the cause of action because there is more than one cause of action such as person slips on floor because it is wet and breaks his arm, and on the similar morning he falls from bicycle which hits the similar arm, in this it is really hard to find out the cause of action because more than one events are there.

In case law Bolton v. Stone, House of Lords stated that defendant was not negligent if damage cause to plaintiff was not foreseeable. 

Section 9 of the civil Liability Act 2003 states that person does not breach duty to take precautions against risk of harm unless risk was foreseeable in nature; risk was not insignificant in nature, and in such circumstances reasonable person would have taken those precautions.

These Section further states, that following questions are considered by Court for the purpose of deciding whether reasonable person taken those precautions against a risk of harm:

• Probability of occurrence of harm?
• Seriousness of risk of harm?
• Burden of taking precautions for the purpose of avoiding risk of harm?
• Social utility of the activity which creates risk of harm? 

Contributory negligence: this is considered a defense which can be used by defendant against the plaintiff, and it occurs when it was found that injured person itself contributed in the cause of injury or damage. Contribution on the part of plaintiff occurred when plaintiff fails to take care of their own safety, and result of it damages claimed by plaintiff is reduced to the extent that plaintiff contributed in the loss. This can be understood through example such as person slips on wet floor because he fails to keep lookout for their own safety in such situation in which person is expected to do so.

There are number of situations when people slip or fall on common residential properties or commercial properties. In case any slip or fall occurred and person suffers injury then there is possibility that injured person files suit against the owner of the property for the purpose of claiming damages under tort of negligence and also for breaching different laws related to statutes. There are number of causes which result in such slips and falls and some of these causes are poor floor surfaces, contamination, the environment, footwear and people.

Generally, managers and owners of the premises take various actions for the purpose of reducing the risk of slips and trips such as they place warning signs and inspect the premises on regular basis. Injury can be caused through the actions or inactions of plaintiff also and this is known as contributory negligence. In such situation amount of damages is reduced to the extent of contribution in loss by plaintiff.

In other words, if owner or occupiers of the premises are responsible under tort of negligence and court finds that plaintiff also contributed in the negligence then damages may be reduced up to the extent of contribution from plaintiff. Plaintiff can be stated guilty under the Civil Liability Act 2003 (QLD) if Court founds that one of the causes of accident also include failure on the part of plaintiff to take reasonable care for his or her own safety. This concept of contributory negligence can be understood through following cases:

In case law Jackson v McDonald’s Australia Ltd [2014] NSWCA 162, Court stated that plaintiff contributed to negligence up to 70% because he walks on wet floor ever after their was clear signboard posted and did not hold any handrails, and Court further stated that McDonalds is liable up to 30% because they fail to clear the spill on immediate basis.

In case law Fitzsimmons v Coles Supermarkets [2013] NSWCA 273, Court stated that plaintiff contributed up to 50% to negligence because he fail to heed the sign board of wet floor near the puddle of water on which plaintiff slipped, and Cole bears remaining 50% liability because its signs were low lying and they are outside the normal vision of customers and they also failed to place an employee for the purpose of warn the consumers near it.

In case law Hamilton v Duncan [2010] NSWDC 90, Court stated that plaintiff is negligent up to 30% for not consider the hole while walking because he was aware about the hole and also warn other peoples about the hole in which he fall, and just before few minutes before the accident because he warned one witness. Remaining liability was bear by the occupier for failing to inspect the area and fill the whole on time.

In case law Indigo Mist Pty Limited v Palmer [2012] NSWCA 239, Court stated that plaintiff does not contribute in her injuries because as per the evidences stated by expert it is not possible to detect the liquid on glass floor at night, and plaintiff found that liquid is on the floor at that time when her steps touch the floor.

From the above case laws it is easy to understand that contributory negligence is completely depends on the facts and circumstances related to individual and also on the own assessment of Court in each case. Owners and occupiers must not take their safety measures and systems for granted otherwise it would absolve liability. This can be understand through example which states that may be warning signs are not visible, timely inspections are not made, and risks are not covered on time.

Damages: in case person suffered any harm because of negligent act and omission, then person can file suit for compensation under tort of negligence. Damages are awarded on the basis of facts of the case including:

• Any financial loss suffered by plaintiff.
• Personal injury suffered by plaintiff.
• Damage to any personal property.

In the present case, Brett is the student of First year in Leisure and Event Management, and both Annie and Brett attend the same business law and ethics class. In this case Annie is attracted towards the Brett, but in actual Brett likes the friend of Annie that is Candice.

Annie knows about the work place of Brett that is Tavern, and she decided to celebrates her 18^th Birthday at Tavern

At night of Birthday party Brett was appointed as manager on the duty, and because one bar attendant is not present Brett also helps behind the bar. Around 11:00 pm one employee of tavern approached Brett that someone fall sick near the main door. Then Brett asked from the employee that have you cleaned the mess but there was too much noise and employee replied yes but there is awful mess.

Brett thought it is better to check but at that time Candice came up to the bar for placing order, and Brett forgot about the awful mess.

Annie watching the Brett and Candice and drank more tequila and at the night she was completely intoxicated and at 1:00 am she was ready to head at home. Near main door Annie get stumbles and for the purpose of attending the attention of Brett she turned to waive good bye and that time only she slipped o that awful mess and fell on her back. Annie was wearing latest fashion shoes that were stilettos.

In the investigation it was found that someone split the cream from the birthday cake onto the vomit on the floor which creates the surface double slippery. Because of this fall Annie suffered fracture at her lower back and it takes several months to recover. She also gives up her part-time job and it was found out that mess was seen and avoided by other at party.

In this case Annie can take action against the Brett because there is negligence on the part of Brett. Negligence proved because all four questions are satisfied:

• Brett owns duty of care towards the Annie.
• Brett breaches such duty of care by not taking the reasonable precautions and his actions falls below the standard of care.
• Annie suffers injury by falling.
• Injury caused to Annie is because

Tort of negligence is considered as situation in which one person owns duty of care towards the other person, and fails to do something that any reasonable person would do or would not do, and such failure causes damage or loss to another person. From the above facts it is clear that Brett is negligent because he breached the duty of care, and Annie can take action against Brett.

In this case Annie is also contributory negligent on her part and contributes in the cause of injury as Annie drinks too much tequila and get intoxicated. At the main door she get stumbled and for the purpose of attending the attention of Brett she turned to waive good bye and that time only she slipped on that awful mess and fell on her back. These facts clearly show that Annie is contributory negligent on her part and because of this damages claimed by Annie is reduced up to the extent that Annie contributes in the negligence.

Therefore, it is clear that Brett is negligent and breach duty of care but Annie also contributes in the cause of injury. 

Bibliography 

Donoghue v Stevenson 1932 AC 562. 

Fitzsimmons v Coles Supermarkets [2013] NSWCA 273. 

Hamilton v Duncan [2010] NSWDC 90. 

Indigo Mist Pty Limited v Palmer [2012] NSWCA 239.

Jackson v McDonald’s Australia Ltd [2014] NSWCA 162. 

Home Office v Dorset Yacht Co Ltd [1970] UKHL 2.

Online sources

ALRC, Fault, < https://www.alrc.gov.au/publications/7-fault/negligence>, Accessed on 8^th June 2017. 

Law Vision. The Law of Torts. < http://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf>, Accessed on 8th June 2017.

Legal Service Commission, Negligence, < http://www.lawhandbook.sa.gov.au/ch01s05.php>, Accessed on 8^th June 2017. 

ALRC, (2017), Authorising what would otherwise be a Tort < https://www.alrc.gov.au/publications/right-sue-tort>, Accessed on 8^th June 2017.