Assignment Problem based Research Question Research memorandum of advice
The report presents a research memorandum of advice on the law pertaining to causation in a negligence action for the given torts of negligence case.
The case is of Jonathon who visited the shopping centre to buy food and couple of chilled water bottles from Big Grocerys store but near the refrigerator area of supermarket slipped and was injured causing physical injury due to extensive muscle damage and disc fracture revealed from scans and x-rays tests.
This resulted in non-continuation of his occupation (long haul truck driver) and created need for extensive rehabilitation.
The personal injury barrister (CJ Kingsley) has asked to undertake proper legal research as client (Jonathon) seeks legal solution for negligence action but there is concern over the cause of the Jonathon’s injuries due to the breach of the duty of care.
In the case, the claimant (Jonathon) need to bring an action against the defendant party and is required to prove the negligence case for this a legal research is undertaken to offer an all inclusive memo to set out the advice and recommendation relevant to the torts law and related causation in a negligence action.
The case highlights points to the issue of negligence. Jonathon was badly injured by slipping in water near the refrigerator section in the supermarket premises which was according to the claimant is due to negligence of the supermarket workers and towards duty of care is owed and possibility that duty has been breached.
The concern is whether or not the personal injuries and economic loss of Jonathon is caused duty of care breach. Thus, this points to the question of causation.
The claimant suffered extensive muscle damage and disc fractures in the lower back, unable to work and less possibility of returning to work and need extensive rehabilitation.
The property owner of the supermarket have knowledge and also should be aware of the foreseeable hazards from water puddle and other hazards towards risk of falls and slips and thus, have a common responsibility to maintain their premises in such a way that provide protection to the visitors from danger of any ham or injury from falls or slips.
The Torts based on negligence can be related to Jonathon’s case instead of the intentional torts and strict liability torts. Here, the tortuous liability is fault based where the claimant need to prove carelessness on the part of defendant party[1].
Jonathon owed a duty of care to supermarket that he does not suffer with any unreasonable damage, loss or harm in the premises. The supermarket property owner owes a duty of care as they have control over their premises.
This can be related to a recent case of Woolworths Ltd v McQuillan [2017] NSWCA 202 for a slip and fall claim in a supermarket and decision pointed towards that the supermarket to implement their cleaning system and their system of inspection in the produce section in a proper (adequate) way and not perfect[2].
This case considered the duty of reasonable care in a proper lookout by the supermarket operator. However, the supermarket appeal was allowed on the basis of reasonable conduct.
It is assumed by the claimant that defendant has breached the duty of care and the loss suffered was caused by the defendant (assumption of liability of supermarket owner by claimant). Here, the standard duty of care was towards foreseeability of harm was to warn the visitor/ shoppers in the refrigerator section. Thus, there was no warning sign or personnel.
Here, the rule of principal legislation that is the Wrongs Act 1958 (Vic) will apply to the common law claims for Jonathon damages for his personal injury in supermarket. This law is applicable for damage (personal injury in public places as a non-workplace injuries or non-transport accidents.
The claimant has the burden to prove the liability of defendant due to negligence as per the section 52 of the Wrongs Act 1958[3].
Considering the issue of causation (balance of possibilities in tort law), the ‘but-for’ test is applied for claimant to determine whether or not the the loss physical injury and economic loss suffered was caused by the negligent action of the defendant party.
The ‘but-for’ test is the test for causation that inquire to seek that loss to the claimant would have been continued ‘but for’ the negligence on the defendant part[4].
It is also important to refer the ‘but for’ test of causation in tort case of Barnett v Chelsea & Kensington Hospital Management Committee [1968] 2 WLR 422 where a duty of care is owed and breach of duty is present but that has not led to loss and if could not have been avoid by the defendant action making the defendant free from liability[5].
In this case, the breach resulting in the damage would not have happened if the water puddle formed was cleaned by the staff member or in presence of supermarket personnel to warn the shoppers. Thus, in Jonathon case, the loss could have been avoided if reasonable conduct[6] (system of adequate mopping or warning sign or information) was present.
Considering the duty of care for causation, the property owner reasonably ought to foresee and know the risk of slip and harm possible from the water puddle leading to physical harm near the refrigerator section. This is supported as the Supermarket evidently has a cleaning and maintenance staff for the supermarket premises to perform the duty.
Here, section 48 (1) (a) of the Act (1985) can be applied for negligence as the cleaning staff failed to take measures prior to mop or dry the water puddle against the risk of probable physical harm in relation to the duty of care.
Also, the circumstance of oversight of store staff member action to mop the area, the Jonathon would have suffered the injury but for if the action was taken Jonathon would have not suffered the injury or the loss.
Also, there is failure from the staff member side to inform or warm Jonathon on the risk of slip or fall which also point to the situation they were not aware of the risk which is carelessness on their part.
Thus, the negligence by the defendant (store side) is a required condition for the incidence of the damage and harm under the section 51(1) of the Wrongs Act 1958 (Vic)[7]. Thus, Jonathon experiences a recognisable harm from the breach of duty which is the likely cause of the harm.
The causes of breach are based on the fact and on law that a duty of care is present between Jonathon and the store owners, and if the duty was present the physical injury as well as economic loss could have been prevented. But the breach has contributed in the personal injury and loss of income for which the claimant seek damage. The proof of injury is doctor and scans and x-ray tests.
If causation is tort of negligence is proved by the claimant, the defendant needs to entitle Jonathon with medical and care expenses, rehabilitation and loss of income for not continuing the occupation under the section 28F(1) (a) of the Wrongs Act 1958 (Vic).
This can be related to the case of Jobling v Associated Dairies [1982] AC 794 House of Lords where employer negligence was found for the personal injury and loss of earning capacity at workplace and decided that claimant was entitled to recover damages from the employer[8].
Defences against torts of negligence: On the other hand, there are also defences available for the defendant in the negligence action to avoid the damages/ monetary compensation to the plaintiff.
Contributory negligence: Here, it can be claimed that Jonathon did not take proper safety measure near the water puddle area near the refrigeration section and was contributory to the negligent by going to the slippery area. Here, section 53 to section 56 of the Wrongs Act 1958 can be applied as the risk was not natural and Jonathon was not aware[9].
Likewise, the section 26 (1) (b) of the Wrongs Act 1958 can be referred and applied where the damage award is reduced to an equitable extent owing to share of claimant in the damage responsibility[10].
Thus, if is decided that claimant if partly liable for the injury only part of the damages can be recovered from the defendant considering the rule of contributory negligence. Other defence by defendant can be the failure on the part of Jonathon to take care of him in walking in water puddle near the refrigerator section.
It can be summarised that Jonathon case for slip claim for personal injury and economic loss is based on the question of causation to receive monitory compensation form the supermarket store owners. Here, the rules of Wrongs Act 1958 (Vic) is applicable for personal injury in public place and based on but-for test, facts and law the claims in negligence is likely to succeed considering the breach of the duty of care causing the personal injury and loss of income.
Dwyer Amy and Patricia Easteal, ‘Cyber bullying in Australian schools: The question of negligence and liability’, (2013) 38 (2) Alternative Law Journal, 92-95.
Finch Emily and Stefan Fafinski, Law Express: Tort Law (Pearson, 2018).
Popa M, ‘Righting wrongs: Lawyers’ reflections on the amendments to the Wrongs Act 1958 (Vic) on medical negligence and mental harm claims’, (2017) 24 (1) Torts Law Journal, 64-82.
Robertson David W, ‘Causation in the Restatement (Third) of Torts: Three Arguable Mistakes’, (2009) 44 Wake Forest L. Rev, 1007.
Stapleton Jane, ‘Factual Causation’, (2010) 38 (3) Federal Law Review, 467-484.
Steel Sandy, Proof of causation in tort law (Vol. 120), (Cambridge University Press, 2015).
Steele Jenny, Tort Law: Text, cases, and materials (Oxford University Press, 2010).
Stewart Pam E and Stuhmcke A G, Australian principles of tort law (The Federation Press, 2009).
Weinrib Ernest J, ‘The Monsanto lectures: Understanding tort law’, (2011) 23 (3)Valparaiso University Law Review 485-526.
[1] Weinrib Ernest J, ‘The Monsanto lectures: Understanding tort law’, (2011) 23 (3)Valparaiso University Law Review 485-526.
[2] Finch Emily and Stefan Fafinski, Law Express: Tort Law (Pearson, 2018).
[3] Popa M, ‘Righting wrongs: Lawyers’ reflections on the amendments to the Wrongs Act 1958 (Vic) on medical negligence and mental harm claims’, (2017) 24 (1) Torts Law Journal, 64-82.
[4] Steel Sandy, Proof of causation in tort law (Vol. 120), (Cambridge University Press, 2015).
[5] Dwyer Amy and Patricia Easteal, ‘Cyber bullying in Australian schools: The question of negligence and liability’, (2013) 38 (2) Alternative Law Journal, 92-95.
[6] Stewart Pam E and Stuhmcke A G, Australian principles of tort law (The Federation Press, 2009).
[7] Robertson David W, ‘Causation in the Restatement (Third) of Torts: Three Arguable Mistakes’, (2009) 44 Wake Forest L. Rev, 1007.
[8] Finch Emily and Stefan Fafinski, Law Express: Tort Law (Pearson, 2018).
[9] Stapleton Jane, ‘Factual Causation’, (2010) 38 (3) Federal Law Review, 467-484.
[10] Steele Jenny, Tort Law: Text, cases, and materials (Oxford University Press, 2010).
