Contributory Negligence Historical Compare -Myassignmenthelp.Com

Question: Discuss About The Contributory Negligence Historical Compare? Answer: Introduction Tort law is a branch of common law, and denote civil wrong done. One of the torts in the nation is negligence. Negligence occurs where an owed duty of care is contravened, owing to the acts undertaken by the duty owing person, which causes the other persons injuries, or losses. When a case of negligence is made, often the defence of contributory negligence is cited (Latimer, 2012). This part covers an analysis of the given case study, in context of the two concepts. The main issue in this case is the chances of a case of negligence, raised by Tamara against Aldi Supermarkets (Aldi), being successful. Negligence is the tort through which the person breaching the duty of undertaking reasonable care is made liable, for not taking the care as a reasonable person would have undertaken in similar situations, particularly when the result in harm/ loss/ injury was being caused to the party to which this duty was owed. Establishing negligence is a step based process, where there is a need to show the duty of care being present, its violation, the violation causing injury, loss not being remote, foreseeability of loss and direct causation. In cases where these are shown to be present, monetary compensation can be claimed upon by the aggrieved party (Gibson and Fraser, 2014). To begin with, there is a need to establish the presence of duty of care. In this regard, the threefold test provided in Caparo Industries plc v Dickman [1990] 2 AC 605, 618 proves to be of assistance. As per this test, there is a need to show reasonable foreseeability of the injury through the defendants conduct or actions; there is also a need for the defendant and plaintiff to have a relationship of proximity; and finally, the imposition of penalty has to be deemed as fair, just and also reasonable based on the scenario present (Lunney and Oliphant, 2013). Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078 was a case in which the plaintiff was not awarded with any sort of damages, owing to the lack of holding the defendant as liable for negligence, as there was absence of reasonable foreseeability in the conduct of the plaintiff (Swarb, 2016). This has to be followed by showing that the owed duty of care had been contravened (Harvey and Martson, 2009). Paris v Stepney Borough Council [1951] AC 367 was a case in which the defendant was aware of the fact that the plaintiff was blind in one eye. Despite this, he was not given the safety gears to be worn whilst be performed his work. One of the days he was working, a rusty bolt hit his good eye, blinding him completely. This was deemed as breach of duty of care resulting in the defendant being deemed negligent (Martin and Lancer, 2013). The loss caused has to be significant and not too remote. Upon the presence of all these, negligence can be upheld (Latimer, 2012). A common defence citied in cases of negligence is contributory negligence. As per this concept, the injured party has to be made liable for the contribution made by them in the injuries which they suffered, predominantly through the negligence of the defendant. Thus, the amount of damages given to the plaintiff for their loss is brought down by their contributory negligence, and is entirely based on discretion of court (Dongen, 2014). Hamilton v Duncan [2010] NSWDC 90 is an example of this concept. This case had the plaintiff failing in maintaining proper look-out for hole, and this was done when the plaintiff had the knowledge of the hold, on which the plaintiff had tripped. There had been warnings by him to other person regarding the same; and this person was the witness later on in context of the hole being present in the ground, just before the incident had taken place. Thus, the damages were reduced by thirty percent as the court held that the contribution of plaintiff had been thirty percent in this case (Bannerman, 2015). Application Where an individual gets in a supermarket, the supermarket gets the duty of making certain that such person is safe while they are in the supermarket. This means that the duty of care was owed by Aldi to Tamara as she was a customer. Based on the threefold test, the loss here was foreseeable as any person would fall on puddle of ice cream and this required proper cleaning. There was clear proximity between the two, and where penalties are imposed in this case they would be fair. The foreseeability is proved based on Bolton v. Stone as falling on wet surface is reasonably foreseeable. Just because the floor was cleaned every forty minutes, does not mean it should not have been cleaned as soon as the ice cream fell on the floor. Not cleaning the surface was breaching the duty of care established through the threefold test, thus satisfying Paris v Stepney Borough Council. Based on these cases, a duty of care was presented to be breached and with satisfaction of the other requirements a case of negligence can be raised by Tamara. This means she can apply for damages. However, the damages applied by her would be reduced based on Hamilton v Duncan. This was due to the fact that Tamara was aware of ice cream puddle and she still ran for the last piece of chocolate. She was required to take care of herself and walk instead of running on a wet day. Thus, she contributed towards her injuries by running. Conclusion Through the conducted analysis, it is concluded that Aldi had been negligent in this matter, but there was also the presence of contributory negligence by Tamara. This means that the awarded damages to Tamara would be reduced by her contribution. Still, Tamara is advised to make a case of negligence to get a major portion of the damages caused to her. References Bannerman, D. (2015) Contributory Negligence In "Slip And Fall" Cases - No Control Over The Plaintiff's Own Action Or Inaction?. [Online] Bannermans Lawyers. Available from: https://www.bannermans.com.au/insurance/articles/public-liability/331-contributory-negligence-in-slip-and-fall-cases-no-control-over-the-plaintiff-s-own-action-or-inaction [Accessed on: 17/01/18] Dongen, E.V. (2014) Contributory Negligence: A Historical and Comparative Study. Boston: Brill Nijhoff. Gibson, A., and Fraser, D. (2014) Business Law 2014. 8th ed. Melbourne: Pearson Education Australia. Harvey, B., and Marston, J. (2009) Cases and Commentary on Tort. 6th ed. New York: Oxford University Press. Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited. Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford University Press. Martin, J., and Lancer, D. (2013) AQA Law for AS Fifth Edition. 5th ed. Oxon: Hachette UK. Swarb. (2016) Bolton v Stone: HL 10 May 1951. [Online] Swarb. Available from: https://swarb.co.uk/bolton-v-stone-hl-10-may-1951/ [Accessed on: 17/01/18]