Discretionary Power and Law of Negligence

Question: Discuss about the Discretionary Power and Law of Negligence. Answer: Introduction: When a person commits an act or makes an omission due to negligence of his part or that of his agents with respect to a person towards whom he has a legal duty to care he is said to commit the tort of negligence (Barker 2016). There are four basic elements which the court considers before deciding a tort of negligence has been committed or not. The prima faice element which the court considers in case of deciding a negligence claim is the duty of care owed by the person towards another person to whom the harm has been caused (Mendelson 2014). When the first element is satisfied the court considers that whether the duty of care owed by the person had been breached by him or not (Lamond 2014). If it is found that the duty of care had been breach the court further analyses that such breach was the main cause of the harm caused to the aggrieved person or not. Upon the satisfaction of these elements the court further considers the concepts of foreseeability, proximity and contribution of the defendant himself towards the harm caused to him (Zipursky 2015). The landmark case which provided the basic elements of the tort of negligence is the English case of Donoghue v Stevenson (1932) also known as the snail in bottle case. In this case the defendant was a beverage manufacturer and the plaintiff was one of the consumers of the beverage. The plaintiffs had found a snail in one of the bottles manufactured by the defendants after consumption of thee beverage at the bottom of the bottle. The plaintiff sued the defendant for the tort of negligence. The court in this case provided the rule in relation to the duty of care by stating that one must take reasonable care in order to avoid omissions or acts which a reasonable man can foresee that would likely cause harm to another. The question was who the another person in this context was. The court with respect to this provided that a person who is directly or closely affected by the omission or act and who were thought to be in contemplation of being affected are the another person. Thus in this case the court upheld the claim of the plaintiff as it found that the duty of care owed by the defendant was breached. The concept of negligence came to Australia from the case of Grant v Australian Knitting Mills (1936). In this case the court further discussed the concept of negligence as provided by the previous case. In this case there was negligence on part of the defendant by failing to remove sulphite from the underpants manufactured by them which subsequently caused a severe disease to the plaintiff. The court in this case decided that this failure by the defendant accounted to the breach of duty of care. In the case of Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 the court ruled that duty of Care involves all precaution which a reasonable person would have taken in order to avoid the harm caused to the plaintiff. The causation element of the tort of negligence are often derived by the courts by using the but for case provided by the case of Barnett v Chelsea Kensington Hospital[1969] 1 QB 428. According to this test the court analyzes that the injury would have been caused or not if the negligent act was not committed. In the case of The Wagon Mound no 1[1961] AC 388 the court provided with the concept of remoteness in relation to the tort of negligence. The court in this case ruled that the defendant can only be held liable if he has not taken the required precautions with respect to an injury which could be foreseen by a reasonable person in similar circumstances. When a person contributes towards the harm caused to his by an act or omission by him this concept is known as contributory negligence. The concept was provided by then case of Daniel v Anderson (1995) 16 ACSR 607. In the case of Coles Supermarkets Australia Pty Ltd v Meneghello [2013] NSWCA 264 the appeal court rejected the trial courts decision and held the defendant not liable as there no reasonable care on the part of the plaintiff. Application As provided in the given scenario Tamara is the customer of Adli stores therefore it can be analyzed that the store owner has a duty of care towards her. There is no doubt in this fact as a shopkeeper is bound to have a duty of maintaining safety of the customers within the shop premises. In order to analyze whether the tort of negligence has been committed or not the breach of duty of care has to be analyzed along with the element of causation. Determining the causation in this case by the application of the but for test it can be analyzed that the injury suffered by Tamara would not have been been caused if there was no spill on the floor of the shop. Tamara had slipped on the flooring which had caused the harm suffered by her. However, the main element which has to be looked upon in this case to determine the existence of the tort of negligence is the breach of the duty of care. A reasonable person in this case would assume that if there is an ice cream spill on the flooring than any person can fall on it and suffer harm. It was the duty of the shop keeper to maintain a clear flooring so that no person in injured. In this case the action of the shop keeper accounts to reasonable precautions as they cleaned the flooring every 40 minutes. In addition Tamara was careless in her pursuit to gain her favorite chocolate and did not notice the spill on the flooring which eventually caused her accident. Further applying the provisions in relation to contributory negligence in this case it can be analyzed that Tamara contributed towards the harm caused to her. Conclusion Thus in this case it can be analyzed that the defendant had observed reasonable care towards Tamara to whom he owed a duty of care. Even though the element of causation was satisfied Tamara would not be able to claim successfully against Aldi super markets. References Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 Barker, K., 2016. Discretionary Power and the Law of Negligence-Public Power, Private Duty. Barnett v Chelsea Kensington Hospital[1969] 1 QB 428. Daniel v Anderson (1995) 16 ACSR 607 Lamond, G., 2014. Analogical reasoning in the common law.Oxford Journal of Legal Studies, p.gqu014. Mendelson, D., 2014.The new law of torts. Oxford University Press. The Wagon Mound no 1[1961] AC 388 Zipursky, B.C., 2015. Reasonableness in and out of Negligence Law.University of Pennsylvania Law Review,163, p.2131.