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Refrence

De Mot, Jef. “Comparative versus Contributory
Negligence: A Comparison of The Litigation Expenditures.” International
Review of Law and Economics, vol. 33, 2013, pp. 54-61.

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Lyons, Amanda. “Duty of care.” Good Practice,
vol. 12, 2015, pp. 24-38.

Robinette, Christopher J., and Paul G. Sherland. “Contributory
or Comparative: Which Is the Optimal Negligence Rule.” N. Ill. UL Rev.,
vol. 24, 2003, pp.41-48.

Rogers, William Vaughan Horton, and John Anthony Jolowicz. Winfield
and Jolowicz on tort. Sweet & Maxwell, 2010.

 BUS107
Commercial Law

Issue 1

1.    Can
Tamara successfully sue Aldi Supermarkets for negligence?

Rule

The law of negligence can be
applied to the case of Tamara vs. Aldi Supermarkets. The law of negligence is
part of tort law as evidence in Donoghue v Stevenson (1932) where the House of
Lord’s established the civil law tort of negligence (Lyons 24). Further, the ruling required manufacturers
to observe a duty of care to their clients. In the case, in 1928 in Paisley,
Scotland Ms May Donoghue was given a bottle of ginger beer, which had been
purchased by her friend from a store. She later realised that the bottle had a
rotting snail. However, since the bottle was dark, Donoghue had consumed most
of the contents before she noted the presence of snail. Donoghue was later
diagnosed with gastroenteritis (Rogers and
Jolowicz 13). She then sued Mr David Stevenson, the manufacturer
of the beer, seeking $500 damages at Scotland’s highest civil court.

In 1932, Lord Atkin found that
the Stevenson had a duty of care to individuals who consumed his products since
the beer could not be inspected once packaged. The case was later returned to
the original court where Donoghue was awarded damages from Stevenson’s estate
as he had already died (Lyons 27). Donoghue
v. Stevenson established several legal precedents and principles. Firstly, Negligence was
affirmed as a tort where an individual can take legal action on another one if
the respondent’s negligence leads to loss of property or injury to the
plaintiff. Secondly, on the duty of care, the judge found that manufacturers
had a duty of care to the end consumers who use their products. The precedence
forms the basis for which consumers are protected from harmful, contaminated,
or faulty products (Lyons 28). Lastly,
the case established the neighbour
principle where a third party, as was the case of
Donoghue, who had not directly purchased a product, still could sue a company
for negligence or a breach of the duty of care. 

Standard of care is also an
important part of tort law that helps define the degree of caution or prudence
that is expected for an individual with a duty of care. It is evident that Aldi
Supermarket, by virtue of having a duty of care had an obligation to put in
place measures to help reduce or eliminate risks associated with slippage in
their facility. In this case, the organization took appropriate measures where
it inspected and cleaned any spillages every forty minutes.

Remoteness of damage is a rule in
tort and contract limiting the amount of compensation for a wrong emanating
from negligence by a defendant. In this rule, for compensation, the damage must
be of foreseeable type and not too remote. In the case of Aldi and Tamara, the
damage incurred by the plaintiff was foreseeable. Indeed, Aldi cleaned the
facility every forty minutes to eliminate the risk that could cause such
damage. Evidently, the damage incurred by Tamar is foreseeable and not very
remote, and thus compensable

Voluntary assumption of risk,
also referred to as the volenti non fit iniuria, on the other hand, is defense
that requires a defendant to show that the plaintiff was aware of a risk and
voluntarily exposed himself or herself. In the case of Tamara, it is evident
that she was not aware of the risk, and thus, the defense of voluntary
assumption can not be applied.

Application

In the case of Tamara, the case
offers compelling circumstances that can be analyzed from the precedence set by
the previous cases. Firstly, Aldi Supermarkets have a duty of care for their
clients to ensure that there is safety from slippages. Indeed, the defendant
had already foreseen risks of slippages from liquids and other materials on the
floor and had taken the appropriate actions to address them. As found in the
case of Sutherland Shire Council v Heyman, the defendant must ensure that the
care bestowed on him/her is provided against all foreseeable risks, both common
and remote. However, the defendant had already foreseen such risks and put
measures that he/she considered as appropriate. Aldi Supermarkets had an
attendant who inspected the facility for any spillages and cleaned them every
40 minutes. From this, the defendant has valid evidence against the accusations
of negligence by the plaintiff.

Conclusion

In response to the issues of the
case, Tamara cannot successfully sue Aldi Supermarkets for negligence.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Issue 2

·        
Can Aldi Supermarkets accept the defense of
contributory negligence?

Rule

Contributory negligence is a rule law that argues
that a plaintiff may be denied damages if he/she is found to have contributed
to the circumstances that led to harm or any other reasons for the lawsuit. In
the case of Badger v Ministry of Defense (2005), a deceased died from lung
cancer the widow sought damages from the defendant (Robinette and Sherland 44). The deceased was exposed to
asbestos while working for the defendant that led him to develop asbestosis.
However, the deceased was also a smoker. The foreseeability of risks associated
with smoking can be inferred from the common knowledge on the negative impacts
of smoking on the health of individuals and as such, the deceased was negligent
and his actions contributed to the development of the lung cancer that
eventually killed him (De Mot 56). The
court awarded the plaintiff damages less 20% for contributory negligence as
smoking could also have caused lung cancer.

Application

The actions of the plaintiff may
have contributed to the injuries that befell her. It is uncommon for people in
a supermarket to run and such behaviour is unanticipated in most cases. When
the plaintiff ran through the supermarket to outdo another customer in an
effort to reach her favorite chocolate, she increased her risk of falling
regardless of whether there were spillages or not. In this case, the plaintiff
predisposed herself to increased risks that the defendant may not have
anticipated. Additionally, the addiction of the plaintiff to chocolate is a
habit that the defendant could not expect. Evidently, the plaintiff was not in
her right mind when deciding to run as her addiction pushed her and the
defendant could not anticipate such actions. Based on this, the plaintiff
played a significant role in contributing to the personal injuries that she
accrued from the fall at the Aldi Supermarket. In other words, a defense of
contributory negligence is possible in the case.

Conclusion

Aldi Supermarket can accept the defense
of contributory negligence of the plaintiff to the injuries that she suffered.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Refrence

De Mot, Jef. “Comparative versus Contributory
Negligence: A Comparison of The Litigation Expenditures.” International
Review of Law and Economics, vol. 33, 2013, pp. 54-61.

Lyons, Amanda. “Duty of care.” Good Practice,
vol. 12, 2015, pp. 24-38.

Robinette, Christopher J., and Paul G. Sherland. “Contributory
or Comparative: Which Is the Optimal Negligence Rule.” N. Ill. UL Rev.,
vol. 24, 2003, pp.41-48.

Rogers, William Vaughan Horton, and John Anthony Jolowicz. Winfield
and Jolowicz on tort. Sweet & Maxwell, 2010.

 

 

 

 

 

 

 

 

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