QUESTION
Ravi is a first year student and he is studying Business, with a major in Accounting. Archana
and Ravi are in the same Business law and Ethics class (Ravi thought the course might be
too hard and left it „til his last year). Archana likes Ravi. She thinks his clothes are a bit old
fashioned and he seems a bit sleepy but still she likes him.
Archana knows that Ravi works at McDonald‟s as a Manager. She decided to meet her
friends at McDonald‟s on her 18th birthday and hoped that Ravi would be on duty … and he
was. Ravi thinks Archana is nice but he‟s rather more interested in her friend Lakshmi, who
is a bit older: she‟s 19.
On the night of Archana‟s 18th birthday, Ravi was the manager on duty. It was a long and
usy night and Ravi had to help behind the counter cooking the hamburgers and chips
ecause one of the staff had called in sick. At around 9:00 pm, Dara, who is employed at the
McCafe approached Ravi, who was tending the bar, and told him that someone had been
sick near the main door.
“Have you cleaned it up, then?” yelled Ravi over the noise of the customers.
“Yeah, yeah,” said Dara “But it‟s an awful mess.”
Ravi thought he‟d better go check but just then Lakshmi came up to the counter to order.
Ravi nudged past the other counter attendant to serve her and completely forgot about the
„awful mess.‟
Archana could see Ravi smiling at Lakshmi and ate more chips plus some vodka she had
ought into McDonald‟s in her water bottle. By the end of the evening Archana was very
intoxicated.
About 10:00 am, Archana was ready to head home. She stumbled toward the main door
and, in a final attempt to gain Ravi‟s attention, turned to wave him goodbye. She slipped on
the „awful mess‟ and fell on her back with a thud. Archana was wearing the latest fashion in
stilettos – shoes with two inch platforms and 5 inch, very na
ow heals. As she fell the right
heel of her shoe
oke away from the sole causing a particularly twisted, heavy fall. It turns
out that someone had spilt cream from the birthday cake onto the vomit on the floor creating
a doubly slippery surface, according to forensic investigations.
Archana sustained a fracture to her lower back and will need surgery. She will have to lie in
ed for some months in order to recover. She‟ll have to give up her part-time job at Safeway.
Fortunately no one else was injured. It was reported that the mess was seen and avoided by
others at the party.
Archana‟s interest in Ravi has turned sour. She wishes to sue Ravi in Negligence. Advise
her as follows:
1. Did Ravi owe Archana a duty of care at the time of the incident?
2. Can Archana prove that Ravi
eached a duty of care owed to her?
3. Can Archana prove the element of damage in an action against Ravi?
4. Could Ravi raise any defences?
5. What damages Archana be entitled to if she is successful in her claim?
It is action of negligence as Ravi was negligent towards his duty, due to which Archana
suffered from physical loss. So, Archana can sue Ravi to recover the damages in form of
monetary compensation for the medical expenses of surgery and for the pay she was going to
get from part-time job at Safeway. So, Archana needs to prove that Ravi was negligent
towards his duty of care, that is why she has suffered from physical loss. The burden of proof
is on the plaintiff, Archana. The elements of case will be considered on balance of
probabilities.
1. Duty of care
Issue
Archana, plaintiff needs to prove that does Ravi owes her duty of care.
Rule
The Wrongs Act 1958 states that the duty of care is established with the reasonable
foreseeability test where damage is physical and careless conduct is an act or an omission.
The reasonable foreseeability test states that (Donoghue v. Stevenson 1932) a reasonable
person foresee a real risk of harm to plaintiff if defendant failed to take reasonable care. The
easonable person is an average ordinary person of no special distinction from defendant.
Application
As Ravi is a manager at McDonald’s, he has a controlling position through resources. So, he
has duty to take good care of customers. He was also aware of mess near the door. So, the
easonable person, on the place of Ravi should have foreseen the probability of events that
occu
ed. It was foreseeable that anyone can suffer from the physical damage due to the
mess. Thus, it was foreseeable as real risk of harm.
Conclusion
It is clear from the application of reasonable foreseeability test that Ravi owes a duty of care
to Archana. So, if she wants to claim monetary compensation from Ravi for the physical
damage, she needs to prove the
each of duty of care.
2. Breach of duty of care
Issue
1
2
3
4
5
6
7
8
Lan Phuong Pham @ XXXXXXXXXX02T04:59:06-07:00
Three elements of negligence requiring proof?
Lan Phuong Pham @ XXXXXXXXXX02T04:59:17-07:00
owed
Lan Phuong Pham @ XXXXXXXXXX02T04:59:54-07:00
Where is it stated in the Act?
Lan Phuong Pham @ XXXXXXXXXX02T05:01:45-07:00
Would a reasonable person foresee a real risk of harm to the plaintiff if the defendant failed to take reasonable care?
Lan Phuong Pham @ XXXXXXXXXX02T05:02:24-07:00
You should also state the neighbour principle.
Lan Phuong Pham @ XXXXXXXXXX02T05:02:59-07:00
What factors are considered in the test?
Lan Phuong Pham @ XXXXXXXXXX02T05:03:22-07:00
Good.
Lan Phuong Pham @ XXXXXXXXXX02T05:03:46-07:00
Good.
The issue in this element is that Archana, the plaintiff must prove that Ravi
eached his duty
of care to her.
Rule
As per s 48 Wrongs Act 1958 to ensure that there is
each of duty of care or not, plaintiff
must prove two criteria. First is that risk was foreseeable to defendant, second is that risk of
harm was not insignificant, which means that risk was ca
ying high probability of damage.
As per s 48(2) Wrongs Act 1958, there are four other factors which are used in applying these
criteria. Which are given below.
Probability of harm
As per case law (Bolton v Stone 1951) probability of harm should also checked,
which means that what is probability of occu
ing damage.
Seriousness of harm
According to the case law (Rogers v Whitaker 1992), other party should be warned by
the defendant about the risk even though it’s low.
Burden of taking precautions
As it is established in case law (Roads and Traffic Authority of NSW v Dederer 2007)
a defendant should take precautions, those that a reasonable person would have taken
in that circumstances.
Social utility of activity
This means that some activities are more worth taking risk than others, so, as per case
law (Waverley Council v Fe
eira 2005) precautions must be taken to avoid or to
minimise the risk. (Gibson 2018)
Application
It was foreseeable to Ravi that, due to mess someone can fall and can injure herself, but he
ignored it. Another thing that risk was not insignificant, as it was of high probability of harm.
Ravi is a manager at MacDonald’s, so he was controlling hand on that day, so, he owes a
duty of care to customers. But there were no warning signs for the customers about the mess
and no precautions were taken by Ravi to avoid the risk.
Conclusion
9
10
11
12
13
14
15
Lan Phuong Pham @ XXXXXXXXXX02T05:04:02-07:00
decide
Lan Phuong Pham @ XXXXXXXXXX02T05:05:32-07:00
s 48 (1) : Was the risk foreseeable, was the risk not insignificant and would a reasonable person in the person's position would have taken precautions?
Lan Phuong Pham @ XXXXXXXXXX02T05:07:40-07:00
No, under s 48(3) of the Wrongs Act,
insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks.
Lan Phuong Pham @ XXXXXXXXXX02T05:08:07-07:00
determining the standard of care required
Lan Phuong Pham @ XXXXXXXXXX02T05:10:51-07:00
the expense, difficulty and inconvenience of taking precautions
Lan Phuong Pham @ XXXXXXXXXX02T05:11:20-07:00
explain
Lan Phuong Pham @ XXXXXXXXXX02T05:12:15-07:00
Why is it the standard of care required?
As per the above analysis of this element, it is evident that the plaintiff, Ravi has
eached his
duty of care towards the defendant, Archana.
3. Damages
Issue
In this element, Archana, the plaintiff must prove that the physical damage she has suffering
from is occu
ed due to the negligent action of Ravi and the consequences of careless conduct
was also foreseeable to the Ravi, the defendant.
Rule
As per Wrongs Act 1958 s 51, there are two tests which are applied in this element on the
alance of probabilities. Which are factual causation and remoteness.
Factual causation
In this test plaintiff needs to prove that defendant was not acting carefully, that is why
plaintiff suffered from the damage. The plaintiff must show that the negligence of
defendant was a necessary condition of the occu
ence of the harm. In the case law
(Strong v Woolworths Ltd 2012) the high court suggested that it was enough if the
plaintiff could prove, on the balance of probabilities, that the negligence of defendant
was a necessary cause of harm. (Gibson 2018)
Remoteness
This test discuss about that is it co
ect to assign liability to the defendant for his
conduct in causing harm or the action was remote. It also considers that the damage of
plaintiff is really result of careless conduct of defendant or not. As the case law
(Hughes v Lord Advocate 1963) states that the consequences of action were
foreseeable or not. (Gibson 2018)
Application
Even if Archana proves that Ravi owed her a duty of care and that he
eached this duty of
care, Ravi will not be liable in Negligence unless it can be shown that Ravi’s
each of the
duty of care caused harm to the plaintiff.