Mrs Anderson and a friend went to Armidale, a café. The friend ordered a gingerbread latte for both of them. After consumption, Mrs Andrews saw that a dead cockroach was lying at the bottom of the glass of her latte. She sued the owner of the café for causing her to suffer from gastroenteritis and nervous shock.
Is the owner of the café liable?
For the tort of negligence to be proved, three major elements are there to be proved. First, the defendant had a duty of standard of care against the plaintiff. Second, the defendant beached the same duty meaning he bungled in performing the said duty. Third, there exists a direct link between the breach of duty of the defendant with the loss or injury suffered by the plaintiff. The term ‘negligence’ gained its prominence in the 20th century. Before that the English law or as a matter of fact, no country recognized this term. There was no compensation for unintended injury earlier (Kiefel, 2015). In the 19th century, when industrial revolution was as its peak, there could be seen a considerable increase in the law of negligence. In 1930s, the modern law of negligence took place where the above three elements came into being for prosecuting any individual on the law of negligence.
The given facts are very similar to an English case, Donoghue v Stevenson.1This case laid the foundation of the modern law of negligence and gave principles on the duty of care. The facts of the case were, in August 1928, Mrs Donoghue's friend bought a ginger beer for her from the
Wellmeadow café. After drinking half of the bottle which was a dark opaque, she transferred the rest of it into a tumbler, during which she saw decomposed remains of snail floating. This caused her gastro-enteritis and a severe shock. She bought a suit against Stevenson, the owner of the café. The question before the House of Lords was whether Stevenson owed a duty of care against Donoghue in the absence of the contractual relations. At that time the law of negligence could only be owed if there was any contractual relationship between the parties as held in Winterbottom v Wright.2 Hence the final judgment of the House of Lords, with a 3:2 majority ratio held that the ratio decidendi of the case is not explicit. Lord Atkins, one of the judges in the panel, held that negligence given in tort is distinct. Secondly, there is no need to have a contractual relationship between the parties. Thirdly, manufacturers owed a duty of care to its consumers for whom they are making the product. He went further to give a "neighbourhood principle" which means that a person has to love his neighbor and owes a duty of care towards him.
One should avoid any act or omission that could can be foreseen and injure him. When the actuality of duty of care is proven, it is then essential to establish that the said standard had been breached by the defendant. Breach of duty of care refers to the failure to take the actions required to prevent any risk of harm that may arise in future (Goudkamp, 2017). Wyong Shire Council v Shirt3is a landmark judgment regarding breach of duty of care. In the given case, the plaintiff had gone for water-skiing in a lake that was controlled by the defendant, the local council. At the lake, signs were indicating the depth of the water and about safe zones for water-ski. However, the placement of the signs was confusing due to which the plaintiff went for ski in shallow water and fell off which resulted in spinal injury. Here, the question before the court was whether the defendant had breached their duty of care. The Hon'ble court held that the defendant had breached their duty of care. Furthermore, the court laid the principle that where the risk of injury is reasonably foreseeable, it must not be ignored or neglected.
Similarly, the owner of the café, Stevenson, too owed the same duty to see that his customers are adequately dealt and not made to suffer. With this Mrs. Donoghue proved that she had a legitimate claim against Stevenson and there was a cause of action.
Another Australian case, Grant v Australian Knitting Mills,4also judged what duty of care should be established. The board decided that all are the necessary steps required to see whether a matter is a legitimate actionable negligence claim. The facts were that plaintiff purchased a suit of underwear from a retail shop, the defendant. After wearing that for a while, he contracted dermatitis. It was because the garment was abraded with bleach making the yarn of it infused with poisonous sulphite. This process was a routine process for the defendants, only this time the employees were negligent. Hence, the plaintiff sued the retailer for breach of contract and the manufacturer for the tort of negligence. It was held the retailer was liable for breach of contract as per the South Australian Sale of Goods Act, which is similar to the English act of tort.
Therefore, in the given problem, Mrs Anderson is liable to sue the Armidale café for their negligence and the medical issue that she had to face. Since it is a civil suit, the amount of damages shall be decided by the court of what they think is relevant. There was tortuous negligence from the side of the café. They owe a duty of care to their customers by providing them with edible food to have and drink. A buyer cannot be expected to be aware in such a situation because the issue that the glasses are clean or not or how is the processing of food is done in some café is not their responsibility. A buyer has a responsibility to trust the place where he is going and pay for the services being provided and it is the seller's responsibility to keep that trust intact.
Sam is a motorist enthusiast and also a prank maker. One day she decided to make graffiti with a yellow phosphorescent and painted some discourteous designs on a large number of white diamonds on the road which gave warning to the motorist about the pedestrian crossing. She painted near about all and the moment when she was about to finish that, she was caught by the police and charged under section 48 of the Road Safety act.
Can the charges against Sam be dropped?
As per the section 48 of Road Safety Act 2017, anyone who obscures any traffic sign or a part of it shall be liable under this section to pay $200 as fine and/or disqualification of his license for up to 6 months. What Sam did, did amounted her to be penalized under this section. The object of the act says public safety is of paramount importance. The graffiti that Sam painted on was a warning sign for the motorist to indicate that there was a pedestrian crossing nearby, which public would be using to crossroads. She painted on that and that comes under section 48. The definition clause of the act defines ‘traffic signs’ which says that it includes any signals, warnings, signposts, direction posts or devices. Hence, the large white diamonds that she painted on comes under the above definition, as it was warning for the motorists. Section 155A of Commonwealth act says that while interpreting any act, cognizance should be given to the object of the act and here the Road Safety Act talks about public safety.
A research was conducted in the city Utah where it was shown that majority of traffic sign damage was done by humans. In the city of Utah a majority of 97,000 traffic signs were vandalized (Khalilikhah, 2016). Another research conducted showed that in western Australia, the damages done to the road signs and signals costed the taxpayers $2.3 million in 2014 (Hickey, 2014). Around 16,059 signs were replaced and cleaned in that year.
Hence, there is no other recourse to help Sam as she did a tortuous offence by vandalizing public property and therefore charges against her cannot be dropped. She is liable to pay the fine and have her license disqualified for 6 months u/s 48 of the Road Safety Act, 2017.
Donoghue v Stevenson 1[(1932) UKHL 100]
Goudkamp, J. (2017). Breach of duty: A disappearing element of the action in negligence? The Cambridge Law Journal, 76(3), 480-483.
Grant v Australian Knitting Mills[(1936) AC 85]
Hickey, P. (2014). Damaged, vanalised road signs cost WA taxpayers $2.3 million last year. Retrieved from https://www.perthnow.com.au/news/wa/damaged-vanalised-road-signs-cost-wa-taxpayers-23-million-last-year-ng-a48f112381bc643e2b0431a6b456e67a
Kiefel, S. (2015). Developments in the law relating to medical negligence in the last 30 years. Retrieved from https://www.cla.asn.au/News/be-warned-medical-negligence/#gsc.tab=0
Khalilikhah, M., Heaslip, K. & Hancock, K. (2016). Traffic sign vandalism and demographics of local population: A case study in Utah. Journal of Traffic and Transportation Engineering (English Edition), 3(3), 192-202
Winterbottom v Wright [(1842) 10 M. & W. 109]
Wyong Shire Council v Shirt [1980) 29 ALR 217]
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