BUSN9123 Principles of Commercial Law
Workshop 2
Topic: Tortious Liability
Aims:
- Develop an awareness of situations where a business can be unintentionally liable for loss caused by negligence
- Practice legal problem solving in commercial context involving potential negligence
Malway is a waiter at “The DogHouse” in Adelaide. The DogHouse is an upmarket, trendy restaurant specialising in a range of gourmet hot dogs which is owned and operated by Doug.
One day at work Malway overheard a customer, Kevroy, who said (while looking directly at Malway) “I see what it is called the DogHouse with people like him working here”. Malway took offence to this and replied something stupid and unwitty like “No, you are! … eh a dog”. This resulted in a brief verbal exchange between Malway and Kevroy about which of them looked more like a dog. This exchange only ended when another waiter directed Malway to the kitchen to collect an order.
Later, when Malway was delivering Kevroy’s meal (a foot-long fusion hot-dog with zig-zag fries), Kevroy shifted position at his table in order to answer his mobile phone. This caused Malway to flinch and drop the meal on Kevroy, who was injured and suffered burns as a result. This ended up in some pushing and shoving and Kevroy getting very agitated and threatening to “smack Malway to the ground”.
At this point, Doug intervenes and asks Kevroy to leave. Doug tells Kevroy that he is no longer welcome and not allowed to return. Kevroy leaves, but an hour later returns yelling and screaming out “where is that dog?” Kevroy scurries around the restaurant floor, still yelling, before slipping on a tropical dog (ie a hot dog with pineapple) which another customer, startled by the commotion, had dropped on the floor.
Advise Kevroy about a potential negligence claim.
Note: two separate injuries, both with “potential negligence. Therefore, need to address both injuries separately as per sample answer below:
Part A – Burns caused by dropped meal
Issue 1 – Has Malway been negligent?
Rule – Need to apply test for negligence:
- Duty of care
- Breach of Duty
- Causes reasonably foreseeable harm
(Donoghue v Stevenson)
Need to think whether particular actions would cause injury – apply reasonable person test.
Application – Malway is a waiter. Kevroy is a customer. This isn’t an established category. However, a waiter ought reasonably to have customers in contemplation when delivering food. This means, Malway, a waiter owes duty of care to Kevroy the customer, when delivering food. Dropping hot food is likely to cause injury. Normally it is expected that waiter takes enough care not to drop food on customers. Here Malway seems distracted and not concentrating on his job. This has caused him to flinch when Kevroy moved. Applying a reasonable person test, it seems that Malway has not acted carefully enough and therefore breached his duty of care. In this situation the potential harm caused by dropping hot food on someone, is obvious. However, it is not entirely clear the extent to which Kevroy “shifted position”.
Conclusion –Based on these facts, there is strong argument that Malway has been negligent. However, it would be necessary to investigate further how much “Kevroy shifted his position” and whether this caused or contributed to the accident.
Issue 2 – Is the business owner vicariously liable?
Rule – Employer is liable if employee carrying out authorised task / acting in course of employment (Century Insurance Co Ltd v Northern Ireland Road Transport Board)
Application – According to facts, Malway is a waiter. The injury occurred while he was delivering food. This is part of Malway’s job. This means Malway was carrying out a task authorised by his employer and therefore acting in course of employment when he was negligent.
Conclusion – The employer / business owner will be vicariously liable.
Part B – Slipping on a hot dog
Issue – Is the business liable as occupier?
Rule – Occupier owes duty of care to all persons entering premises, even those who are there without permission however level of care not as high for a trespasser (Hackshaw v Shaw). Occupier needs to take reasonable precautions (Australian Safeway Stores Pty Ltd v Zaluzna).
Application – Strictly speaking the business has a duty of care to Kevroy even though he is trespassing. Applying a reasonable person test a restaurant should clean up food spilled on the ground. The facts say: “tropical dog (ie a hot dog with pineapple) which another customer, startled by the commotion, had dropped on the floor.” It is not clear how much time restaurant has to clean up the mess, so it is difficult to determine whether reasonable precautions taken.
Conclusion – There is a duty of care as occupier, even to Kevroy as trespasser, however not clear if duty has been breached. Need more info about timing – how long before the accident was the hot dog dropped.
Case summaries
Negligence / Duty of Care
Donoghue v Stevenson (1932) AC 562
May Donoghue met a friend at a café. The friend ordered and paid for a bottle of ginger beer for Donoghue. When the bottle arrived, the waiter poured a portion into a glass tumbler. Donoghue drank the contents of the tumbler. When Donoghue’s friend poured the rest of the bottle into the tumbler, the remains of a partially decomposed snail fell out. The ginger beer had been packaged in an opaque bottle, and therefore the presence of the snail had not been evident to Donoghue or the staff at the café. Donoghue suffered from shock from the nauseating sight of the snail. She also suffered severe gastroenteritis as a result of consuming the ginger beer. She sued the manufacturer of the ginger beer, David Stevenson, for £500 in damages. Did Stevenson owe a duty of care to Donoghue even though there was no contract between them, and there was no fraud? The court decided that when an article of food, medicine or the like is sold by a manufacturer to a distributor in circumstances which prevent the distributor or the ultimate purchaser or consumer from discovering by inspection any defect, the manufacturer is under a legal duty to the ultimate purchaser or consumer to take reasonable care to ensure that the article is free from any defect likely to cause injury to health.
According to Lord Atkin in the landmark case of Donoghue v Stevenson [1932] AC 562, at 580:
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, in law, is my neighbour? The answer seems to be: persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”
Vicarious Liability cases:
Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509
The driver of a petrol tanker lit a cigarette while delivering petrol to an underground tank. The lit cigarette caused a fire. The court had to decide if the employer of the driver was liable for the damage. The employer argued that the driver was not permitted to smoke while delivering petrol. The court decided that the employer was nevertheless liable because, at the time, the driver was carrying out an authorised task.
Deatons Pty Ltd v Flew (1949) 79 CLR 370
A bar attendant at a hotel got into an argument with a customer, Flew, about his continued use of bad language. The bar attendant threw a glass of beer at Flew’s face. Flew commenced legal proceedings against the owner of the hotel, Deatons Pty Ltd, claiming that Deatons Pty Ltd was vicariously liable for the bar attendant’s actions. The court decided that the bar attendant was not acting within the scope of their employment at the time of the incident and that, therefore, Deatons Pty Ltd was not vicariously liable for the bar attendant’s actions.
Negligence / Occupier’s liability
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
While shopping at a Safeway supermarket on a rainy day, Zaluzna slipped on the wet floor near the entrance and was injured. The court decided that Safeway was liable to compensate Zaluzna for her injuries in accordance with the basic principles of negligence. Safeway as occupier of the premises owed Zaluzna a duty of care, and they had breached that duty of care by failing to take reasonable precautions to avoid such harm.
Phillips v Daly (1988) 15 NSWLR 65
The plaintiff parked her car in a hotel car park that was separated from the hotel by horizontal logs painted white and approximately 40 cm high. Instead of walking around the logs, the plaintiff climbed over them, tripped and fell. She sued the owners of the hotel for negligence, relying upon the principles of occupier’s liability. The court decided that the defendants had not breached their duty of care. It was daylight, the risk was obvious, and the plaintiff should have walked around the logs rather than stepping over them.
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Modbury Triangle Shopping Centre Pty Ltd (Modbury) owned the Modbury Triangle Shopping Centre in Adelaide. Anzil was a manager of a video rental shop in the shopping centre. At about 10.30 pm, after closing the video shop, Anzil was walking to his car in the car park of the shopping centre when he was attacked by three assailants. He sustained serious injuries. The car park was not lit at the time of the incident as the car park lights were turned off at about 10.00 pm. Anzil sued Modbury for damages alleging negligence on the part of Modbury as the occupier of the land. The court decided that Modbury was not liable for Anzil’s injuries. As an occupier, Modbury owed Anzil a duty of care, but the duty did not extend to taking reasonable steps to prevent criminal conduct by third parties that would cause physical injury to Anzil in circumstances where Modbury was unable to control the conduct of the assailants. Further, Modbury’s failure to leave the car park lit facilitated the crime, but it was not the cause of Anzil’s injuries. The direct and immediate cause of the injuries was the conduct of the three attackers who were acting independently of Modbury.
Hackshaw v Shaw (1984) 155 CLR 614
A farmer suspected that someone was stealing petrol from the bowser on his farm. One night he caught a man stealing his petrol, and shot at the tyres of the man’s vehicle to prevent him from leaving. Unfortunately he hit the passenger door of the vehicle, injuring the plaintiff who was crouching on the front seat. She sued the farmer for compensation for her injuries. The court decided that even though the thief and the plaintiff were trespassing at the time the farmer still owed them a duty of care, and that he had breached that duty of care by firing his gun at the car in the dark.
