The Case of Tamara v Aldi Supermarkets

Question: Can Tamara sue Aldi Supermarkets on grounds of negligence for the damage she suffered; is Aldi Supermarkets liable? Answer: Rules: A legal duty of care, breach of said duty and any loss resulting from the breach are the three essential elements of the tort of negligence(Bermingham). The defendant can rely on the defence of contributory negligence where the damage suffered occurred partly as a result of the claimants own act or omission(Roach). Lord Wright in Lochgelly Iron and Coal v MMullan defined negligence as more than needless or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing(Gibson and Fraser). Todays comprehension of negligence, however, if rooted in the case of Donoghue v Stevenson where the plaintiff discovered a decomposing snail in her beverage purchased from a caf, as a result of drinking the beverage the plaintiff became ill. She sued the manufacturers in negligence and the court held that the manufacturer owed a duty of care to its final consumers(Latimer). The determination of this duty was based on the concepts of foreseeability, proximity and justice and reasonableness. These concepts make up the neighbour principle where one is expected to take reasonable measures to ensure their acts or omissions do not cause harm to those they can reasonably see will be affected by them(Ber mingham). Where a duty of care has been established, negligence will occur if there is proof of its breach. Under common law, Blyth v Birmingham Waterworks Co sets the standard of care as that of a reasonable man; doing or failing to do that which a prudent man would not or would do(Bermingham). In Australia, the Civil Liability Acts provide a variety of qualifications to replace this reasonable mans test(Latimer). These Acts incorporate the principle of foreseeability, the significance of the risk and the reasonable man test as well to establish the standard of care. It is important to note that the existence of breach is a question of fact but however it is up to the courts to determine the standard of care expected of an individual(Gibson and Fraser). The onus is on the plaintiff to prove the defendants breach of duty. Damage or injury suffered is the third facet in the tort of negligence; one cannot make a claim if they have not suffered loss be it physically, financially or otherwise. The injury suffered must be caused by the breach of duty(Latimer). Causation, which is whether the damage was caused by the defendants act or omission, and remoteness; whether it was possible to foresee the injury resulting from said breach, are the two fundamental issues to consider in this step(Gibson and Fraser). Causation is determined as a question of fact while remoteness is an issue of law. In Linderman Ltd v Colvin a patient hospitalised for a head injury suffered at work incurred further injuries due to his brittle bones while at the hospital. Although the employer was liable for the injury suffered at his premises, the latter injuries were not caused by his breach of duty or in any way resulting from the first injury. The principle applied in this case was later illuminated in Cork v Kirby Maclean as the b ut for test; that is, but for the defendants breach the injury would not have occurred. Where the aforementioned elements are established before court, the defendant is likely to be found liable in negligence and expected to compensate the aggrieved party. However, the damages owed may be reduced, or sometimes completely denied, if it is found that the claimant played a part in the act or omission leading to the injury(Roach). Civil law reforms in Australia have led to a departure from the common law principles of contributory negligence and instead empowered the courts to determine the justice and equity behind reducing a plaintiffs claim where a defendant relies on contributory negligence(Gibson and Fraser). The onus is on the defendant to prove that the plaintiff, via his actions or lack thereof, contributed to his harm and said harm is foreseeable as emanating from the plaintiffs conduct. In Swain v Waverley Municipal Council the court reduced a plaintiffs claim by 25% as a result of his contributory negligence; he had dived into a wave and suffered injuries that re ndered him a quadriplegic(Latimer). Application: Aldi Supermarkets as a company owes a duty of care to all persons who enter its premises to ensure they are safe to use. With reference to Donoghue v Stevenson; which was later applied in Jaensch v Coffey, it is evident that the enterprise's actions or omissions directly affect shoppers such as Tamara. As such, failure to carry out their duties can be seen to lead to likely loss or harm to their customers. Aldi Supermarkets ensures their aisles are cleaned up every 40 minutes because it is well aware of this fact. It, therefore, goes without saying that Tamara is owed a duty of care. Secondly, breach of duty involves failure to act in a way any prudent man under the same circumstances would. As discussed above, in Australia Civil Liability Acts empower the courts to determine whether a breach in fact occurred. As such, in Tamaras case, it is up to court to decide whether the 40-minute interval was reasonable timing to be clearing aisles. Additionally, it is vividly clear that Tamaras injury was directly caused by slipping on a puddle of melted ice cream. Causation and remoteness are therefore identifiable in this case study. The three elements of negligence can, therefore, be clearly established in Tamaras case. However, according to the case provided, Tamara was, in fact, running within the shop; it is likely that had she not ran her injuries might have been averted altogether. It is important to note that Aldi as the defendants can claim contributory negligence based on this fact and have her damages reduced. Conclusion: Tamara as the claimant can sue Aldi Supermarkets in negligence but should be aware of the likelihood of their reliance on the defence of contributory negligence. Works Cited Bermingham, Vera. Nutcases: Tort. London: Sweet Maxwell, 2011. Print. Blyth v Birmingham Waterworks Co. No. 781. 11 Ex. 1856. Donoghue v Stevenson. No. 562. A.C. 1932. Gibson, Andy and Douglas Fraser. Business Law 2014. NSW: Pearson Higher Education AU, 2013. Print. Jaensch v Coffey. No. 52. H.C.A. 1984. Latimer, Paul. Australian Business Law. Sydney: CCH Australia Ltd, 2012. Print. Lochgelly Iron and Coal v M'Mullan. No. 1. A.C. 1934. Roach, Lee. Card James' Business Law for Business, Accounting, Finance Students. Oxford: OUP, 2012. Print. Swain v Waverley Municipal Council. No. 4. H.C.A. 2005.