Law Assignment 2020
(a) Is QM’s ‘system’ good enough to avoid a finding of negligence by a court?
Issue: In the given case, QM had adopted a cleaning system a policy of rostered cleaning whereby cleaners worked in set shifts at set times in set aisles.
There was no record of timing for working people and their work. There was no proper roster or log of aisles having been checked and actually cleaned by individual cleaners.
When she was fetching packet of cereal, she injured and hit her head on several bottom shelves. Now she was not able to drive and attend routine works and had a claim against QM or the centre. So the issue is that:
Is the system provided by QM good enough to avoid a finding of negligence by a court?
Rule: According to the Civil Liability Act 2002 (NSW), negligence is possible when an individual does not consider what is expected of him/her in terms of considerable care and skill.
The negligence occurs when a person or negligent party breaches the duty of care and causes damage or injury to another person or claimant (Epstein and Sharkey, 2016).
It is required by the court or claimant to prove three elements:
- There should be the duty of care existed between the involved parties.
- The person should breach the duty of care owed to another person.
- There should be injury or damage to the person caused by the breach of the duty.
It is not important o classify the injured person into licensee or invitee. It is required to decide how careful the occupier should be for that person’s safety (Ellis, 2011).
Application: In the given case, it is required to determine the negligence by the store to the customers. From the case, it is determined that there was a duty of care between Mrs. Robinson and QM store.
It is the duty of the store to provide the safe environment as it shows that the firm has the duty of care towards the customers or visitors. At the same time, the store breached the duty of care to Mrs. Robinson because the system was not appropriate that caused injury to her.
The cereal packets were placed at such height that made it difficult for her to reach the packets as she turned her basket upside down and stood on it to fetch the packet of cereal. As she reached up to grab the packet, she fell injuring her ankle and hitting her head on several bottom shelves.
In the case of Australian Safeway Stores Pty Ltd v Zaluzna [1987], Zaluzna (plaintiff) visited Australia Safeway store (defendant) to purchase something but he slipped on wet foyer due to raining outside. It caused injury to Zaluzna and he sued the firm for negligence.
The court declared that the law in this area should be governed with the consideration of the general principles of negligence. It was the case related to the negligence of duty of care.
In relation to this, the court determined that it was the occupier’s liability due to having the commercial relationship and reasonable foreseeability. It was the duty of care that neglected by the company because it did not provide the safe environment to the customers.
It was expected from the firm that if someone comes into the shop and pay money for shopping, the least a firm can do is to maintain the safe premise.
In the given case, the QM’s ‘system’ was not appropriate as the firm did not follow proper policy in cleaning and providing the items at the proper place that could be accessible to the customers easily.
Conclusion: Overall, it can be said that QM’s ‘system’ was not good enough to avoid a finding of negligence by a court.
(b) What effect, if any, did the sign have on QM’s liability, if any, to Mrs.Robinson?
Issue: Mrs. Robinson went into QM for buying food. She used a metallic wire shopping basket rather than the trolley. However, there was a warning signboard clearly stating “Shoppers use baskets at own risk”.
The use of basket made a reason behind the injury of Mrs. Robinson. So now the issue is that whether the sign had any effect on QM’s liability, if any, to Mrs. Robinson.
Rule: According to the Civil Liability Act 2002 (NSW), the occupier can discharge their duty through warning signals of the danger. An occupier’s liability for injuries can be impacted by deciding the availability of warning signs.
If there is a warning sign with proper visibility to the people when they enter or are on the property, then the occupier’s liability can be reduced.
Reasonable care and maintenance of property should be reflected in the warning signs (Bryden and Storey, 2011). But at the same time, the warning sign should be effective as it could be noticed by the person when entering the property.
If the signboard is not visible, the occupier would be liable for any injuries suffered on the land regardless the presence of the warning sign (Dari-Mattiacci and Hendriks, 2013).
Application: In the given case, it is determined that a warning sign was placed by the store that clearly stated that baskets can be used at own risk by the shoppers.
But Mrs. Robinson ignored that signboard and used the basket to carry the food items. In such circumstance, it can be noticed that Mrs. Robinson was also accountable for her ignorance of warning sign even the store clearly mentioned it.
Regarding this, in the case of Thornton v Shoe Lane Parking Ltd [1971], Thornton (plaintiff) drove his car into a new automatic car park. A notice was given on the outside about the charges and parking at owner’s risk.
He parked his car in the garage after taking tickets. But when he returned to collect the car, he found an accident and got injured. He claimed damages from the defendant garage.
From this case, a notice was given that the garage will not be liable for any injury to the customer which occurs during parking of the car on the premises (Robertson, 2012).
The court declared that the defendants were half to blame for the plaintiff’s accident and imposed the penalty of £3,637 for the damages to the plaintiff.
Therefore, in the given case, it can be determined that Mrs. Robinson (plaintiff) was also responsible for her accident as she used the basket even after watching the warning sign. So, store (defendant) was half to blame for the accident of Mrs. Robinson.
Conclusion: The sign had an effect on QM’s liability as well as Mrs. Robinson.
The presence of sign may reduce the liability of QM store while it can increase the liability of Mrs. Robinson.
(c) Assuming some degree of contributory negligence, how does Mrs. Robinson’s own conduct affect your answer to (a) and/or (b)?
Issue: In the given case, both parties including plaintiff and defendant were responsible for the accident or harm.
QM system was not effective to protect the customers at its store while Mrs. Robinson also ignored the signboard. In such case, it is needed to determine how Mrs. Robinson’s own conduct affects their liability based on some degree of contributory negligence.
Rule: For determining the degree of contributory negligence, it is decided that who had a duty of care to take the position. Defendant has a duty of care to take positive action.
At the same time, plaintiff’s negligent conduct caused a dangerous situation. Apart from this, if defendant’s negligence satisfies the “but for” test, defendant has a large proportion of responsibility (Barker et al., 2012).
It seems that if the plaintiff is partially at fault for the accident due to his own negligence, then he cannot claim any damages from the defendant.
It decides some amount of negligence on the part of the plaintiff (Bussani and Sebok, 2015).
Application: The principle of contributory negligence can be applied to this given case also. From the case, it is determined that the defendant (QM) did not provide the safe environment to the plaintiff (Mrs. Robinson) while Mrs. Robinson ignored the warning sign of using baskets at own risk.
In such situation, it is necessary to decide who contributed more to the accident or injury to her (Green, 2015). From the case, it can be stated that the cleaning system was not adequate but at the same time, the key reason of harm to Mrs. Robinson was to use the basket to reach the food items which was out of her reach.
There was a signboard showing “use the basket at your own risk”, but she used this basket that caused injury to her. It means she was more responsible for her harm as she ignored the warning of the store.
Supporting to this, in the case of March v Stramare [1991], the defendant (Stramare) alleged that the accident and harm caused due to negligent driving of the plaintiff (March), not due to the negligence of the defendant in parking the truck.
It was the matter of causation for the negligence as who was the main contributor to the negligence.
The issue was whether the harm caused due to either negligent driving or negligence parking or both. In this case, the defendant (Stramare) was more accountable for the accident.
Conclusion: Based on the contributory negligence, it can be stated that Mrs. Robinson’s own conduct caused the harm. So in such circumstance, the liability of QM will be reduced and Mrs. Robinson’s liability will increase.
(d) Assuming QM is liable in negligence, what principle governs Mrs.Robinson’s damages? In other words, how would a court approach the issue of her damages?
In order to approach the issue of Mrs. Robinson’s damages by QM, the court would need to observe the specific facts of the case. The damages would be determined by the court by using the following facts:
- The amount of financial loss;
- Extent of personal injury to person;
- The possible impact of the loss or injury on the future ability of the person to earn income; and
- Amount of harm to any personal property and the type of personal property damaged (Luntz et al., 2017)
At the same time, it would also necessary for the court to know whether the plaintiff or who experienced harm has taken proper steps to prevent the harm occurring. It means it is required for the plaintiff to take minimum precautions for reducing the harm possibility (Oliphant, 2013).
If the court finds that the plaintiff also has contributed to the harm, then the amount of compensation can be reduced. From the case, it can be determined that Mrs. Robinson was injured and was not able to drive and do the chores.
So, there was no significant financial loss or no impact on the future liability of Mrs. Robinson to earn. In addition, it will be needed by the court to consider the contributory negligence that may impact the amount of the damages. At the same time, personal injury was not such problematic that could make difficult for Mrs. Robinson to live life.
So the court will decide the damages by including treatment expenses and other possible financial loss due to injury to compensate her for the damage (Stychin, 2012).
In addition, two types of damages including compensatory (or actual) and punitive damages can be considered by the court.
Compensatory damages are related to the special damages including loss of earnings, medical expenses and property damage and general damages including noneconomic damages such as emotional distress, pain and suffering.
Punitive damages are not awarded to the plaintiff but to deter the defendant for doing such action causing damages to the plaintiff (Bussani and Sebok, 2015).
In this case, both damages can be applied by the court as it may award the damaged to Mrs. Robinson and also deter QM to pursue the action causing damages to her.
References
Books & Articles:
Barker, K., Cane, P., Lunney, M. and Trindade, F., 2012. The law of torts in Australia. UK: Oxford University Press.
Bryden, D. and Storey, I., 2011. The duty of care and medical negligence. Continuing Education in Anaesthesia, Critical Care & Pain, 11(4), pp.124-127.
Bussani, M. and Sebok, A.J. eds., 2015. Comparative tort law: global perspectives. UK: Edward Elgar Publishing.
Dari-Mattiacci, G. and Hendriks, E.S., 2013. Relative fault and efficient negligence: Comparative negligence explained. Review of Law & Economics, 9(1), pp.1-40.
Ellis, J., 2011. General principles and comparative law. European Journal of International Law, 22(4), pp.949-971.
Epstein, R.A., and Sharkey, C.M., 2016. Cases and materials on torts. UK: Wolters Kluwer Law & Business.
Green, S., 2015. Causation in negligence. UK: Bloomsbury Publishing.
Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G. and Harder, S., 2017. Torts: cases and commentary. UK: LexisNexis Butterworths.
Oliphant, K., 2013. Against Certainty in Tort Law. Tort Law: Challenging Orthodoxy Hart Publishing, Oxford, pp.1-18.
Robertson, A., 2012. On the Function of the Law of Negligence. Oxford Journal of Legal Studies, 33(1), pp.31-57.
Stychin, C.F., 2012. The vulnerable subject of negligence law. International Journal of Law in Context, 8(3), pp.337-353.
Cases:
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
March v (E & M) Stramare Pty Ltd (1991) 171 CLR 506.
Thornton v Shoe Lane Parking Ltd [1971] QB 163
