Issue 1:The ultimate issue of this case is to determine whether Tamara can lodge a complaint under the law of negligence or not.Rules:The primary issues of the case are based on law of negligence that is a part of the Tort law under the contract law in Australia (Ben-Shahar and Porat 2016). Under the law it has been stated that if a person has failed to perform his duty which a prudent man should do in an ordinary process and if such failure has resulted into huge or minimum loss or damage to others, in that cases that act can be included under the jargon of negligence (Stewart and Stuhmcke 2014). Donoghue’s case has prescribed certain essential grounds to claim compensation under law of negligence such as:• The wrong doer has owed certain duties to the victim;• The wrong doer has failed to perform the duties;• The victim has suffered great damage due to such failure;• The damage should not be unexpected in nature. On the other hand, in the case of McHale v Watson (1966) it has been understood that there are certain standard of care that every person should have to do in their daily life.
If they have failed to do the same, they will be held liable under the law of negligence. Similar rule has been prescribed in Imbree v McNeilly (2008), where it has been stated clearly that if a person had failed to do his duty, he will be held liable and the principle of Donoghue’s case has been established in that case. Application:In this case, it has been observed that the plaintiff of the case named Tamara was addicted to particular tastes of chocolate and the defendant was the only retailer of that chocolate.
That flavour was always at high demand and Tamara was not get the chocolate every day. On a fateful morning, she saw that the shop has the last piece of chocolate and with an intention to get the same, she had begun to run and stepped on a puddle of ice cream and fell down. She had suffered several injuries due to this and wanted to sue the supermarket for negligent act. The ice cream was left in the premises of the defendant and it was their duty to clean all such substances to avoid any injury to others. This is called as duty of care and the supermarket had failed to perform their duty and Tamara had to face serious monetary and physical damage due to the accident. According to the statement of Donoghue v Stevenson 1932, it can be stated that every customer has the right to plead against the negligent act of the supermarket authority and therefore, Tamara can sue the authority for non-performance of duties. It has been held in Caparo Industries Plc’s case that the act must be foreseeable in nature and the harm should be reasonable for the imposition of liability upon the defendant.
In Re Polemis’s case, it was held that a defendant is responsible for the direct consequence of his action no matter whether the injury is predictable or not. It has also been understood that it is the duty of the Aldi supermarket to see whether his premises is quite secure for the customers as it is the duty of the supermarket to take proper care of the premises. In this case, it has been learnt that the supermarket has taken certain excuses that the nature of the damage is too remote and it is not possible for the supermarket to assess the fact that there is any ice cream or not. However, according to the principle established in case of Donoghue, it can be stated that the supermarket has to take the entire possible step to secure the interest of the customers.
Considering the given case study, it can be stated that the supermarket had failed to perform any such duties and therefore, held liable under the negligence Act. It is an established principle of the negligence law that the duty of care should have to be proved. Lord Atkin has stated in Donoghue’s case that the every person has certain reciprocal duties to each other and must see that any other person may not get affected by his acts (Barry 2017). In Sullivan’s case, it was held that defendant has no right to cause damage to others and such mandate should have to be maintained in all situations. In Perre’s case, it has been stated that the relationship between the plaintiff and defendant should be defined as proximate relation and it has been held that each party owe certain duties to each other that should have to be performed. The relation in between shopkeeper and customer or neighbours can be defined as proximate relationship. Proximate causes are defining the responsibility of defendant. Conclusion:Aldi had failed to perform its standard duty of care and therefore, Tamara can sue the supermarket under the law of negligence.
?Reference:1. Barry, C., 2017. Statutory modifications of contributory negligence at common law. Precedent (Sydney, NSW), (140), p.12.
2. Ben-Shahar, O. and Porat, A., 2016.
Personalizing Negligence Law. NYUL Rev., 91, p.627.3. Caparo Industries Plc v Dickman 1990 UKHL 24. Cusimano, G.
S. and Roberts, M.L.
, 2016. Contributory Negligence and Assumption of Risk. Alabama Tort Law, 1.5. Donoghue v Stevenson 1932 AC 5626.
Foley, M. and Christensen, M., 2016. Negligence and the Duty of Care: A Case Study Discussion. Singapore Nursing Journal, 43(1).
7. Goudkamp, J. and Nolan, D., 2017. Contributory negligence on appeal. 8. Grant v Australian Knitting Mills (AKR) (1936) A.
C. 859. Humphrey, C. and Chiarella, M., 2015. Legal frameworks for practice in Australia and New Zealand.
Midwifery-E-Book: Preparation for Practice, p.304.10. Maguire, R.
L. and Banks, A., 2015. The risk of negligence following the failure of a human replacement function in an automated system.