Contributory Negligence Assumption of Risk and Duties

Question: Discuss about the Contributory Negligence for Assumption of Risk and Duties. Answer: Introduction The present case is specifically based on the claim for negligence as Tamara was going every day to Aldi supermarket to buy her favorite chocolate which she was trying to get from last few days as whenever she went all of them were sold out. But on one day when it was heavily raining she sawat the far end one last chocolate left. As a result of which she began to run towards the chocolate, slipped on a puddle of melted ice cream and broke her back. She spenta few months in hospital with overallcosts alone in addition of $700,000. So, now by using IRAC method the issue which has arouses out of this situation would be clarified and established more clearly. As Tamara made a claim againstAldi negligence for theinjuries she suffered. Whether Tamara could claim damages to be paid for her losses against Aldi Supermarkets for negligence or not? Negligence under the law of tort generally could be stated as the failure to take reasonable care either by way of an act or omission. Such an act of carelessness could take place when: An individual do not take reasonable amount of care which he should have taken which a prudent individual might take under certain situations or Have done something which a prudent individual would n9ot have done under such situations (Laws,2017). As per the ruling of Blyth v Birmingham Waterworks Co. (1856) negligence has been defined as the error to do something which a sensible individual who wasdirected upon those concerns which usuallycontrol the behavior of human affairs. Such individuals would also do, or was doing something which a reasonableperson would not do (Legal Services Commission of South Australia, 2016). In Donoghue v Stevenson [1932] AC 562 the modern negligence law was renowned. But it could also be affirmed that in order to make a successful claim of carelessness against the defendant, the burden of proof was applied on the applicant. As the applicant must show that: The respondent owed a duty to take reasonable care towards the applicant; Such duty which the respondent owed towards the applicant was violated; Due to the contravention of such duty the applicant suffered a harm (Bits of Law, 2013); and There was no remoteness of such injury which was caused to the applicant (Laws, 2017). Even if a claim of negligence which was made by the applicant was proved by him against the respondent by fulfilling all the essentials which were required in an act for negligence (Find Law, 2017). Then also the respondent if he knows that he has taken due care towards the protection of applicant the he could take defense against the assertion of negligence (The Law Handbook 2016, 2015). There have been two major defenses which more frequently were utilized in a claim for negligence but one of such defense was contributory negligence (Australian Government, 2017). When the individual who has suffered injury were themselves found to have contributed to such cause of their injury then such an act could be defined as contributory negligence. In Davies v Swan Motor Co [1949] 2 KB 291it was concluded thatwhile taking into consideration the question of negligence on the part of both the parties, it was not essential to prove that the act of carelessnesshave constituted a contravention of duty towards the respondent. It wasadequate enough to show lack of sensible care taken by the applicant for his own protection." For instance, if an individual slips or fall down in a store due to which he suffers an injury then he could bring a case against such store. But if such injury was caused due to her fault as being a rational individual he could have taken immense care of his own protection which he lacked so he could not upheld the store accountable for negligence. In the matter of Raad v KTP Holdings Pty Ltd as Trustee for VM KTP Nguyen Family Trust [2016] NSW 2016 it was clearly affirmed by the judges that the pace of movement of the claimant on the pathway have been a contributing factor which has resulted in his or her fall. As a result, the claim for contributory negligence was reduced to 10% of the total claim (Lexology, 2016). In another matter of Strong v Woolworths Limited [2012] HCA 5 it was held that the applicanthave tried todazed the similar hurdle in other slip and fall matters of recognizing a normal connection among the lack of a adequate cleaning system and the harm suffered by an individual, when it was not known when the slippery substance was there. So, in this case it could be observed that the day when she went to buy the chocolate was a rainy day. When she entered the supermarket she had a glance over a row where only one chocolate left which she required to buy as from the past few days she was going but all of the chocolates were sold out. So, in order to get the last bar of chocolate she thought to run fast to grab the bar and she increased her speed as she saw one person standing near to the bar. Therefore, when she was about to obtain the chocolate she broke her back as she fell down on the melted ice cream. So, it might be concluded that there was a transparent case of carelessness on the part of the supermarket as they did not clean up the ice cream which was there on the floor. But it was observed that Tamara as a sensible individual failed to take sensible concern of her own protection. As when she knew that she was all wet and could fall downthen also she ran in speed. As a result, she was found to be contributory negligent for the injurysuffered by her. At the same time it was stated by theAldi Supermarkets that they could prove that a person was employed by the store to examine the supermarket aisles and cleans up any spill every 40 minutes. So, the store claimed that they had taken reasonable care to protect the individuals. Conclusion Therefore, it would be advised to Tamara that although she could not bring a case against the store in order to claim for the whole amount for her injury but she could hold the store liable for certain amount ofinjury which was suffered by Tamara. So, it was concluded that Tamara was contributory negligent for her injuryas shehas madecontribution to her own injury. References Australian Government.(2017) Contributory Negligence, Assumption of Risk and Duties of Protection. [Online] Treasury of Australia. Available from: https://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/~/media/Treasury/Consultations%20and%20Reviews/Reviews%20and%20Inquiries/2002/Review%20of%20the%20Law%20of%20Negligence/Key%20Documents/PDF/ContribNeg.ashx [Accessed on 30/1/17] Bits of Law. (2013) Damage: Causation. [Online]Bits of Law. Available from: https://www.bitsoflaw.org/tort/negligence/study-note/degree/damage-causation-factual-legal [Accessed on 30/1/17] Find Law. (2017)Elements of a Negligence Case. [Online] Find Law. Available from: https://injury.findlaw.com/accident-injury-law/elements-of-a-negligence-case.html [Accessed on 30/1/17] Laws. (2017) Negligence Tort At A Glance.[Online] Laws Available from: https://tort.laws.com/negligence-standard-of-conduct/negligence-tort [Accessed on 30/1/17] Laws. (2017) Negligence: Four Elements.[Online] Laws. Available from: https://negligence.laws.com/four-elements-negligence [Accessed on 30/1/17] Legal Services Commission of South Australia.(2016) Negligence.[Online] Available from: https://www.lawhandbook.sa.gov.au/ch01s05.php [Accessed on 30/1/17] Lexology. (2016) A slip up - shopping centre liable for slip and fall on wet tiles.[Online]Lexology. Available from: https://www.lexology.com/library/detail.aspx?g=bdcef724-3c2e-482d-9d74-540bc1a44d6c [Accessed on 30/1/17] The Law Handbook 2016.(2015) Negligence and injury.[Online] The Law Handbook 2016. Available from: https://www.lawhandbook.org.au/10_01_00_negligence_and_injury/ [Accessed on 30/1/17]