Australian Law - Business Premises - Negligence

Topics: Tort law, Common law, Tort Pages: 6 (1907 words) Published: September 28, 2011
This case study will examine case number 2, Walter’s Ice-cream shop, and present all aspects within the PIRAC framework. For purposes of succinctness, the original statement of case facts will not be repeated here, however a summary list of the factual events is presented in chronological order as follows : * Builder leaves paint pot on shop floor after completing paint work. * Walter notices the paint pot and decides to leave it with intention to move later. * Walter opens shop

* William and Niral enter shop. Niral opens paint pot and spills paint ( unseen by Walter ). * Franny enters shop, slips on paint, and breaks hip.
No.| Name| Description|
1| Walter| Owner and operator of the ice-cream shop.|
2| ‘Builder’| A builder contracted by Walter. Is the party who leaves the pot of paint on the floor of the shop.| 3| William| Customer ( adult ) and father of Niral.|
4| Niral| Child of William. Assumed to be a minor. Age unknown. Is the party who opens the pot of paint and spills it on the shop floor causing the accident.| 5| Franny| Customer. An Elderly lady who suffers a broken hip after slipping on the spilt paint. She is the party seeking legal advice.|

* Is Fanny able to sue Walter for negligence? If so, is Walter able to share some of the blame for negligence with the builder, for leaving the paint in the first place, or with Niral for causing the accident by spilling the paint? * Is Fanny able to sue the builder directly for negligence? * Is Fanny able to sue Niral directly for negligence? In relation to this point, is William in some way liable for negligence due to his position of care of his child Niral? In other words does he bear some responsibility for the consequences of Niral’s behaviour?

The tort of negligence is central to the issues raised; therefore the plaintiff must prove all three requirements under the tort of negligence in order to succeed in suing the defendant. These 3 requirements are: 1. Establish that the defendant owed the plaintiff a duty of care. 2. Establish that this duty of care has been breached.

3. Establish that the harm caused was, in fact, a result of the breach of duty.

1. Duty of Care Owed?
A duty of care will exist if the relationship between defendant and plaintiff in the case are such that it matches a well-established category (James 2010, p 163). In regards to the situation of people lawfully entering premises owned by someone else, case law states that the people visiting the premises are owed a duty of care by the occupier of the premises as demonstrated in case Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. The “occupier” is defined as the party who has control of the premises, regardless of whether they are present or not.

In addition, if the premises are of a commercial nature, then a higher level of duty of care is expected compared to residential premises as demonstrated in Neindorf v Junkovic (2005) 222 ALR.

Customers in commercial premises owe other customers in the premises a duty of care, in much the same way that motorists owe a duty of care to each other on a public highway. This is established in law by the rule that: if the relationship between parties does not match a well-established category then a duty of care will exist if two conditions are satisfied. The first is the application of a reasonability test – was it reasonable for the defendant to foresee that their act or omission could cause harm to defendant? The second condition is that the salient, or key, features of the case must compare favourably with other similar cases which concluded that a duty of care exists (James 2010, p. 166).

2. Breach of Duty of Care?
To establish that a breach of a duty of care has occurred the plaintiff must establish that (1) the risk was foreseeable, (2) the risk was not insignificant, and (3) that the reasonability test...
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