Tort Law Negligence Policy

Question: Discuss about the Tort Law Negligence Policy. Answer: Introduction: The law of negligence is based on a simple common law principle that if someone is hurt or suffers damage by the act (includes omission) then the doer of the act is responsible to make good the loss so suffered. This common law principle was for the first time fully analyzed in Donoghue v Stevenson (1932). In Australia, the law of negligence is found in (Sullivan v Moody (2001) wherein the wrongdoer is answerable for all the losses that is suffered by the aggrieved because of his actions. But, this statement is not sufficient to hold the wrongdoer negligent for his actions. There are few principles which are required to be proved against the defendant. (P Latimer, 2012) Firstly, it is important to prove that the defendant owns a legal duty of care against all of his actions. Duty of care is a legal duty under which it is presumed that the wrongdoer when taking any act must be very careful and must conduct his acts so that no harm is suffered by any person. But, the question arises as who these persons are? In Donoghue case it was held that the duty of care is against the plaintiffs who are the neighbors of the wrongdoer. Now, the question arises as who are the neighbors? Lord Atkin submitted that neighbors are those who are sharing proximity with the wrongdoer, in the sense that, the aggrieved persons are directly affected by the acts of the wrongdoer (Perre v Apand Pty Ltd[1999]. The impact upon them is not remote but direct. Also, when the wrongdoer takes any action and any aggrieved party suffers from the same, then, the wrongdoer is only answerable for such action the impact of which can be determined by him ((Sutherland Shire Council v Heyman[1985]). If the impact of his acts is too remote and is not reasonably foreseeable, then, he is not accountable for his acts. (C Witting, 2007) So proximity and reasonable forseeability are the two elements which establish the duty of care upon the wrongdoer. Secondly, a defendant is answerable to the losses which are faced by the aggrieved only which are because of the breach of duty by the wrongdoer. But, when the duty of care is considered to be breached? In (Paris v Stepney Borough Council[1950] it was held that when the defendant pursue with any action then he is expected to comply with certain level of care, but, when this level is not achieved then the duty is considered to be failed. But, who determined this level of care. In Boltonv Stone [1951] it was held that the level of care is not constant but is variable in nature and fluctuates and is contingent upon the facts of the situation. The desired level of care in one situation might be too high/less in another situation. The level of care depends upon various scenarios, such as, gravity of the offence, who the aggrieved person is (child, aged, adult, suffering from any disease, educated, etc), etc. (Oxbridgenotes, 2014) Thus, every wrongdoer is only answerable for such losses when there is breach of duty. If the duty is imposed and the same is furnished, then, there is no breach and vice-versa. Thirdly, once it is a settled fact that the wrongdoer is under obligation of duty of care and such duty is not furnished in the manner expected from him and because of such duty some kind of loss is suffered by the aggrieved, then, the aggrieved had faced damages as per the law of negligence and the wrongdoer is answerable under the law of negligence Gates v McKenna (1998). (Souper M, 2008) But, the damages which are suffered by the aggrieved are only considered be incurring because of the breach of duty of care by the wrongdoer, providing, the damages which are so incurred are not too remote to be anticipated by the wrongdoer and the losses that are suffered should be the direct effect of the acts of the wrongdoer (Carroll vFearon(1999). Once the laments are established against the wrongdoer, he is considered to be negligent. But, there are two defenses which are available to him in law. Firstly, if the aggrieved has assumed the risk knowing that it will cause damage to her then if any loss is incurred then the aggrieved is responsible for her own loss and the wrongdoer can take the defense of volenti non fit injuria. Secondly, if the loss faced by the aggrieved is the result of wrings committed by both the aggrieved and the wrongdoer then there is contribution on the part of the aggrieved and the wrongdoer can take the defense of contributory negligence. The courts can only incur liabilities to the extent the wrongdoer has acted negligently (Astley Ors V. Austrust Limited(1999). Application of law Aldi Supermarkets is negligent and because of its wrongful acts Tamara has suffered damages. Tamara visited Aldi Supermarkets to buy chocolate and run very fact to collect the same. But, since the aisle was slippery, sue to melted ice cream; she was not able to balance herself and fell down resulting in injuries. Aldi Supermarkets is negligent because it is its duty to keep the floor of the place non-slippery considering the fact that the store is regularly visited by the customers. But, this duty is breached because the level of care is not as per the standard required. The aisle is cleaned in 40 minutes which is less than what is expected from the store and because of such breach loss is faced by Tamara. So Aldi Supermarkets is negligent. But, since Tamara ran very fast (what I normally not expected from the customers) and which has resulted in unbalancing her and causing her injuries so, Tamara has also contributed and so Aldi Supermarkets can take the defense of contributory negligence. Conclusion Aldi Supermarkets is negligent for the losses of Tamara but can take the defense of contributory negligence. Reference List C Witting, Tort Law, Policy and the High Court of Australia" [2007] MelbULawRw 23. Oxbridgenotes (2014) negligence- Breach of duty. University of Sydney. P Latimer (2012) Australian Business Law, CCH Australia Limited, 2012. Souper M, Sixth Law Form (2008). Astley Ors V. Austrust Limited(1999). Boltonv Stone [1951] HL. Donoghue v Stevenson (1932). Carroll vFearon(1999) CA. Gates v McKenna (1998)QBD Perre v Apand Pty Ltd[1999] HCA 36. Paris v Stepney Borough Council[1950] UKHL 3. Sutherland Shire Council v Heyman[1985] HCA 41 Sullivan v Moody [2001] HCA 59.