In Rebecca & ‘Zorba’s’ Restaurant case, the main issue is whether negligence exists of the defendant? There are three prerequisites must be present before the tort of negligence can arise: a duty of care must be owed by one person to another; there must be a breach of that duty of care; and damage must have been suffered as a result of the breach of duty. (FoBL, 2005, p70) In addition, another element must be satisfied to prove negligence is the causation. This essay will analysis Rebecca v. ‘Zorba’s’ with these four issues.
IRAC Process No. 1
Does ‘Zorba’s’ Restaurant own a duty of care to Rebecca Disasteropoulos? There are two common factors that must exist before the law says a duty of care exists, which are foreseeability and proximity.
Firstly, in discussing the incidence of a duty of care, a historical case that defines the ‘neighbour principle’ must be taken into account – the case of Donoghue v. Stevenson. The decision of this case developed a principle which has become known as the ‘neighbor principle’ by Lord Atkin that the neighbor means the closely and directly person by another’s act. (FoBL, 2005, p68)
Secondly, it must be foreseeable that the omission of the defendant could cause harm to the plaintiff. An objective test is used through the question, whether a reasonable person would foresee the damage occurring from the defendant. According to the case of Hay or Bourhill v. Young, it is not necessary to foresee the actual damage that will occur. It is enough if it can be shown that some types of damage could arise as a result of the defendant’s conduct. (FoBL, 2005, p68)
In addition, proximity that requires care to be taken must exist. Proximity involves the notion of nearness or closeness and embrace physical proximity between the person or property of the plaintiff and the person and property of the defendant…causal proximity in the sense of closeness or directness of the relationship between the particular act or cause and the injury sustained” (Deana J. Jaensch v. Coffey). According to the case of Donoghue v. Stevenson, even there is no contractual relationship between these two parties, a duty of care still exists.
Thus it can be seen that the duty of care will be owed because the action of the restaurant that they did not remove all the liquid from the floor has already affected the harm to their customers, and the relationship between Rebecca and the restaurant is the suppliers of services and customers. ‘Zorba’s’ Restaurant will be liable to compensate Rebecca if the duty of care is breached.
IRAC Process No. 2
Is the duty of care breached by the defendant, ‘Zorba’s’ Restaurant? The second element required to prove negligence is that a duty of care has been breached. There are four factors must be taken in to account to determine whether there has been a breach, which are likelihood of injury, gravity of injury, if injury did occur, amount of effort required to remove the risk of injury and social utility of the defendant’s conduct. (FoBL, 2005, p75)
In the first place, the likelihood of injury is the degree of the risk of damage. According to the case of Bolton v. Stone, it was a slight possibility of harm, so the court held that the defendant was not liable for damages. This decision was explained by Lord Red of the Privy Council. (FoBL, 2005, p75) However, some cases may not be ignored, like the case of Rebecca v. ‘Zorba’s’ Restaurant.
Secondly, the gravity of injury must be relevant. ‘If the activity in which the plaintiff is engaged is particularly dangerous, this requires warning.’ (FoBL, 2005, p75) According to the case of Waverley Municipal Council v. Swain, the defendant failed to warn the plaintiff that his activity has an occurred risk, which led the plaintiff to become a quadriplegic. And the court decided that was a negligent.
In addition, the third element is the amount of effort that would be required to eliminate the risk....