Commercial Law Negligence

Question: Discuss about theCommercial Lawfor Negligence. Answer: Introduction Negligence is a civil wrong done and is considered as a tort. The basic idea behind negligence is that a reasonable care should be exercised by people, when they do any act so that no foreseeable harm is caused to the other people. In the following parts, the concept of negligence has been applied in the given case study Issue Whether Tamara can successfully sue Aldi Supermarkets in negligence for her losses, or not? Rule When a person fails to exercise the necessary care, which was owed by that person to some other person, and this failure results in injury or harm to the other person, then the first person is guilty of committing the tort of negligence. In order to establish the necessary care, the actions of a reasonable person, in similar circumstances, would have to be ascertained. In case negligence is established, the aggrieved party can claim for damages, in form of monetary compensation (Legal Services Commission, 2016). In order to establish that negligence was present, the elements of negligence have to be established. These elements include a duty of care, a breach of this duty, remoteness, and the injury or harm. The breaching party should have owed a duty of care towards the aggrieved party (Legal Aid, 2015). To establish this, the landmark case of Donoghue v Stevenson [1932] UKHL 100 has to be taken as an example. In this case, a snail was found in the bottle of the ginger beer that Mrs. Donoghue was drinking and she sued the manufacturer Mr. Stevenson for negligence. In the judgment, the judge held that the manufacturer owed a duty of care to its users and hence, was held liable in negligence (British and Irish Legal Information Institute, 2016). Along with this, it also has to be established the loss was foreseeable (The Law Handbook, 2015). In case the loss is such, which was beyond what could be expected then the person cannot be held liable in negligence. In the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2, also known as Wagon Mound (No. 1), the judges held the judges held that the loss was not foreseeable and hence, the damages were not recoverable (Case Briefs, 2016). The next essential is the breach of duty of care. When the breaching party fails to exercise the duty of care, which was owed, and who fails to recognize the substantial risk of loss, then such party breaches the duty of care. In order for a party to be held liable, it has to be shown that the actions of the breaching party resulted in the loss to aggrieved party. Moreover, it has to be established that the party was in proximity to cause the harm to the other party (Latimer, 2012). The last essential deals with the injury or loss. Unless and until a loss, harm or injury is shown by the aggrieved party, the negligence would not be established. Along with this, the loss has to be significant or substantial to claim against the negligence. In case the loss is too remote, and all the essentials of negligence are present, the damages would not be awarded to the aggrieved party (Latimer, 2012). Contributory negligence is a defense that is taken by the breaching party in case of negligence. As per this, when a person fails to apply the duty of care upon them, and contributes towards the loss or harm that resulted from a negligence of the other party, then such party contributes to the loss, and accordingly, the damages of the breaching party are reduced (Latimer, 2012). In the case of Davies v Swan Motor Co [1949] 2 KB 291, Davies was held liable for the damages caused as he was negligent in standing on the side of the lorry, and the damages were reduced accordingly (E-Law Resources, 2016). In one of the recent cases of Raad v KTP Holdings Pty Ltd as Trustee for VM KTP Nguyen Family Trust [2016] NSW 2016 888, the plaintiff slipped on the wet tiles and was injured, so the plaintiff sued the defendant for negligence. The defendant could not show that efforts had been made to make the floor dry and non-slippery. The speed of plaintiffs movement was claimed by the defendant as a contributory negligence. But, the defendant was held to be negligent and only 10% of damages was reduced as a result of contributory negligence on part of the plaintiff (Devitt, 2016). Application In the given case, Aldi Supermarket was claimed to be in negligence by Tamara. As per Tamara, the store owed a duty of care towards her, which they failed, and which resulted in her back injury and hence, claimed for damages. The elements of negligence were present in this case, as there was a duty of care, a breach, remoteness and harm to Tamara. So, Aldi Supermarket committed the tort of negligence. But, Tamara was aware that the floor was wet, and in an attempt to get the chocolate bar, she ran towards it, after seeing another person approaching the chocolate bar. By running, she contributed towards the negligence of the Aldi Supermarket. Moreover, as against the case of Raad v KTP Holdings Pty Ltd as Trustee for VM KTP Nguyen Family Trust, which is quite similar to this case, the supermarket could show that the floor was cleaned every 45 minutes, to fulfill their duty of care. By foreseeing the risk of an individual slipping due to the wet floor, the supermarket ensured that it fulfilled its duty of care. Conclusion From the above analysis, it can be concluded that Aldi Supermarket indeed committed the tort of negligence, but at the same time, Tamara contributed towards the loss and hence, contributory negligence was present. But, Aldi Supermarket could show that they had taken the necessary steps to ensure that no harm was caused due to the foreseeability of a person slipping on wet floor, and hence, fulfilled the duty of care. So, the Aldi Supermarket did not commit negligence. And even if Tamara initiates court proceedings against Aldi Supermarket for negligence, she would fail in getting any damages due to her contributory negligence. So, it is advised to Tamara, to refrain from suing Aldi Supermarket, as firstly, they did not commit negligence, and secondarily because she would be held guilty of contributory negligence. References British and Irish Legal Information Institute. (2016) Donoghue v Stevenson [1932] UKHL 100 (26 May 1932). [Online] British and Irish Legal Information Institute. Available from: https://www.bailii.org/uk/cases/UKHL/1932/100.html [Accessed on: 19/12/16] Case Briefs. (2016) Overseas Tankship v. Morts Dock Engineering Co., Ltd. Wagon Mound No. 1. [Online] Case Briefs. Available from: https://www.casebriefs.com/blog/law/torts/torts-keyed-to-prosser/proximate-or-legal-cause/overseas-tankship-v-morts-dock-engineering-co-ltd-wagon-mound-no-1/ [Accessed on: 19/12/16] Devitt, S. (2016) A slip up - shopping centre liable for slip and fall on wet tiles. [Online] Lexology. Available from: https://www.lexology.com/library/detail.aspx?g=bdcef724-3c2e-482d-9d74-540bc1a44d6c [Accessed on: 19/12/16] E-Law Resources. (2016) Davies v Swan Motor Co [1949] 2 KB 291 Court of Appeal. [Online] E-Law Resources. Available from: https://www.e-lawresources.co.uk/Davies-v-Swan-Motor-Co.php [Accessed on: 19/12/16] Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, CSW: CCH Australia Limited. Legal Aid. (2015) Negligence. [Online] Legal Aid. Available from: https://www.legalaid.wa.gov.au/INFORMATIONABOUTTHELAW/BIRTHLIFEANDDEATH/PERSONALINJURY/Pages/Negligence.aspx [Accessed on: 19/12/16] Legal Services Commission. (2016) Negligence. [Online] Legal Services Commission. Available from: https://www.lawhandbook.sa.gov.au/ch01s05.php [Accessed on: 19/12/16] The Law Handbook. (2015) Negligence and injury. [Online] The Law Handbook. Available from: https://www.lawhandbook.org.au/10_01_00_negligence_and_injury/ [Accessed on: 19/12/16]