FACTS: Jean was a regular shopper at East End Four Corners Supermarket, which was part of a large nationwide supermarket chain. She was there at least once a week and sometimes more often if the specials were really good. When Jean was there this week, she slipped on some grapes in aisle 3 and broke her ankle. Grapes are normally found in the fruit section of the store and the store was not sure how the grapes got there or how long they had been there. The store manager indicated that there were a number of spillages every week in the aisles in this store.
Is East End Four Corners Supermarket liable in negligence for Jean’s injury?
ESSENTIAL ISSUES: Is East End Four Corners Supermarket liable in negligence for Jean’s injury?
Let’s identify the legislation and cases that are relevant to the stated problem
“Negligence is an omission to do something that a reasonable person would do, or doing something that a prudent and reasonable person would not do. It is the failure to exercise reasonable care and skill” (Gibson & Fraser, 2013)
A Duty of Care:
This is a duty owned by one person who is called “defendant” to another who is called “plaintiff”. Its basis is the relationship between defendant and plaintiff and the foreseeability of damage or loss.
Foreseeability is a test for duty of care, answering question whether a reasonable person (in plaintiff’s position) would have predicted that there was a real danger of the probability of injury.
“The reasonable person is someone of normal intelligence, credited with such perception of the surrounding circumstances and such knowledge of other pertinent matters as a reasonable person would possess” (Gibson & Fraser, 2013)
Vulnerable relationship: consideration of the vulnerability of plaintiff and control of the defendant
Policy considerations: prospect of indeterminate liability, possible commercial or financial consequences, the impact on social or moral values, or even whether it is fair and equitable.
According to Donoghue v Stevenson  AC 562, The High Court mentioned the role of the authority and responsibility and shifted away from protecting plaintiffs who did not take care of themselves.
Breach of Duty of Care
References are to the following Acts: Vic: Wrongs Act 1958; NSW: Civil Liability Act 2003; SA: Civil Liability Act 1936; WA: Civil Liability Act 2002; Tas: Civil Liability Act 2002; ACT: Civil Law (Wrongs) Act 2002.
There would be a breach of Duy of Care if all followings satisfied:
- Foreseeable risk (Risk which would be known by a “reasonable person” if they were in defendant’s position); and
- Considerable risk (Risk that have a higher probability of harm. This criterion has no equivalent in common law); and
- A reasonable person in the defendant’s position would have taken precautions
The issue of damage or harm is central to a negligence action. Damage may be: