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Assignment about ATMC BUS503 Principles of Commercial Law, difference between the wrong behavior from the perspectives

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ATMC BUS503 Principles of Commercial Law

Introduction 

The careless behaviour of a person or the carelessness of a person is considered as negligence. The given scenario is mainly based on laws of negligence where the plaintiff has claimed that the defendant was careless towards her at the time of the incident or after that. Here comes the concept of the tort of negligence. For proving the claims that the plaintiff has charged against the defendant, the legal components must be proved by the plaintiff by taking the legal procedures. This is called the tort of negligence. It must be mentioned in this discussion that there is a huge difference between the wrong behaviour from the perspective of morality and the wrong behaviour from the perspective of law. It is not necessary that the immoral behaviour will be considered as illegal behaviour. The main three legal components that the plaintiff should confirm to charge the act of negligence in opposition to the defendant are the duty of care, the breaching of duty of care and the damage that the plaintiff has faced due to the careless behaviour of the defendant.in this scenario, the plaintiff is Archana and the defendant is Ravi.  In this report, some questions will be discussed on the basis of the given scenario where it will be explained whether the defendant had owed any duty of care towards the plaintiff at the moment of the incident. Further, it discusses whether there is any way through which the plaintiff can prove the breaching of duty of care against the defendant, whether the plaintiff to establish the damage against the defendant can establish proofs. In addition to this, whether there are chances in which the alleged can defend himself, the damages that can be entitled by the plaintiff if she proves herself right are discussed. 

Analysis of the elements (Duty of Care, Breach of duty of care and damage)

Each element of the tort of negligence: 

Duty of Care

I- Yes, Ravi should have owed Archana a duty of care at the time of the incident. A Duty, which should be done by the defendant so that harm can be avoided from the plaintiff, is considered the duty of care. 

R- Ravi was the manager of McDonald is where Archana went to celebrate her birthday with her friends. Archana and Ravi knew each other from their college. They were friends. When Ravi was busy in cooking to help the other employees, another employer informed him that a customer had made a mess in the bar. The customer vomited on the floor. Though Dara, the employer told him that he had cleaned the floor, as a manager, it was Ravi’s duty to recheck if the floor had been cleaned properly or not. Instead of doing that, Ravi started attending Lakshmi, a friend of Archana, whom Ravi liked. 

A- Providing proper service and care to the customer should be the first priority to Ravi as a manager of a café. He must be careful so that no customer can be harmed due to the negligence of the café (Www5.austlii.edu.au, 2019). For the negligence of Ravi, Archana has to face bad consequences. The lower back of Archana has been fractured for which surgery is needed. On top of that, Archana has to leave her job. All these consequences could be easily avoided if Ravi could take care of the mess at the right time, as it was his responsibility as a manager of the café.

C- Though Archana was in an intoxicated condition, it was the duty of the manager, i.e. Ravi to establish the duty of care towards Archana as she was a friend of Ravi as well as a customer of the café. Ravi has breached his duty of care towards Archana.

Breach of duty of care

I- Archana can prove that Ravi breached a duty of care owed to her. The breaching of duty of care refers to the careless behaviour of the defendant for which he has failed to demonstrate the reasonable actions that should be done. 

R- As per the acts of Australia, carelessness of the defendant will be proved if the defendant's behaviour is not included in the standards that are established legally. Considering the case of Wyong Shire Council v Shirt (1980) 146 CLR 40, the plaintiff (Shirt) was injured after water skiing in a lake and the defended had erected a 'deep water' sign close to where the Plaintiff was hurt, as a symbol of border (Kaanoon.com. 2019). According to 146 CLR 40, drawing reference from the previous case, the tribunal first decide whether the defendant had the idea that his behaviour would create a risk to the Plaintiff, the magnitude of risk and the probability of it's occurrence. In this case, it was known to the defendant that the floor of the café was slippery due to the vomit and the cream used in the birthday cake of the plaintiff. He should have to take proper measures to clean the floor. As a manager, it was the duty of the defendant who was the manager of the café. Nevertheless, the manager forgot to do his duty completely. This made a huge amount of physical as well as financial harm to the plaintiff. Thus, as per the Wrongs Act, the defendant is negligent as the risk is not foreseeable. 

A- As per S 48(2) Wrongs Act, there are certain factors, which are required to determine the standard of care of the defendant. With the application of the common law, the burden of taking precaution can be considered taking into consideration Woods v Multi-Sports Holding (2002) 208 CLR 460. Since, as per the case, Woods v Multi-Sport Holdings Pty Ltd Negligence, there was an eye injury suffered by the plaintiff (Jade.io, 2019). Drawing reference from the case, the factors are the professional skills of the defendant, the age of the defendant; the standards made by the legislation etc. for this particular scenario, all these factors will be assessed by the court to prove the defendant wrong. Other than this, Ss 57-60 Wrongs act can be imposed by the plaintiff, which deals with the negligence done by the professionals. S48 (1) Wrongs Act states that negligence will not be considered for the defendant if he fails to take any precaution for the harm in some particular positions such as the unforeseeable risks, for insignificant risks, etc. 

C- In this scenario, the risks were not unforeseeable by Ravi as he knew about the floor. The risk could never be insignificant. It was also known to Ravi. For all these reasons, breaching of duty of care can be easily proved against Ravi.

Damage

I- Archana can prove the element of damage under s 51 Wrongs Act 1958 and s 52 Wrongs Act. Archana was celebrating her birthday party at Mc Donald’s. She slipped on the slippery floor, fell down and broke the bone of her lower back. She suffered physical damage. 

R- As the employee of Mc Donald's, it was Ravi's duty to clean the mess on the floor of the store. Ravi neglected his duty as an employee of Mc Donald's. The test of causation comes under consideration as Archana needs to face certain damages or suffer loss due to the breach of duty of Ravi. Though he was attending another customer, he needed to be aware of his duty to clean the floor of the store as any other customer can fall down and get hurt. Under the section s 48 Wrongs Act 1958 (Vic) he needed to take some action such as clean the mess himself or assign some other employee to clean it first (Legislation.vic.gov.au, 2019). Apart from the risk of the customers getting hurt, a mess like that in an eatery is not at all tolerable. 

A- If Ravi had acted according to his duty, Archana would not slip on the floor and fall down. She would not suffer physical harm if the floor had been cleaned earlier. The damage she suffered was foreseeable damage, and she can also prove through the medical test reports and certificates that she had suffered serious damage as Ravi neglected his duty. 

C- The damage was not too remote. Therefore, the test of causation and the test of remoteness that can be applied will have a legal back up as Archana has the proof of serious physical damage, which was no doubt foreseeable. 

Defence(s), where relevant on the facts:

I- Ravi can raise defences when the burden of evidence rests with Ravi. He can defend himself by using Voluntary assumption of risk and contributory negligence. Archana came to Mc Donald’s to celebrate her birthday party and to meet Ravi. When Ravi attended her friend Lakshmi with enthusiasm she was very upset and started drinking alcohol that she had brought with her in her bottle. 

R- As per the law of negligence, this act is not sensible at all and neither lawful. She kept on drinking and by late evening, she was very intoxicated. She was wearing high heels and she slipped on the mess on the floor, fell down and broke the bone in her lower back. Now, as she was completely intoxicated she was not enough cautious. She was not careful that she could have been if she could avoid getting intoxicated. Keeping in consideration the Wrongs Act 1958, the fact that she liked Ravi and he attended her friend enthusiastically cannot justify her act of drinking in McDonald’s throughout the evening. She was aware that she was wearing high heels and needed to be cautious and careful when she was walking. 

A- If she would have been careful, enough she could easily avoid the injury she had suffered. Ravi can establish that Archana was drunk, and her own conduct had caused her injury. He can establish that Archana failed to take care of herself where the scope of the damage was foreseeable to her also.  

C- Archana herself contributed to the damage that she suffered. Ravi can defend himself under s 62 Wrongs Act and s 26 Wrongs Act of proportionate liability.  Ravi can also defend himself with ss 53-56 Wrongs Act. The risk was an obvious risk; therefore, Archana being a reasonable person should have been careful to avoid the risk.

If Archana becomes successful in her claims, she can recover all the expenses that she had to bear due to the physical damage she had suffered. As she broke the bone of her lower back, she had to go through a treatment for which she had to pay the expense of the necessary treatment. Due to this mishap, she lost her part-time job at Safeway. She had suffered another loss. If Archana is successful in her claims, she will get back the total expenses that she had to pay for her treatment and she will get back her job (classic.austlii.edu.au, 2019). If Archana is successful and wins the case then it is clear that Ravi did not put forward any defence or have not defended himself. In that case, Archana will recover the entire amount she had paid for her treatment and the job that she had lost. If Ravi defends himself using the contributory negligence, then Archana will be held responsible for not taking care of herself, and in that case, the responsibility on Ravi will reduce. In such a case, Archana will not recover everything but will recover her losses partially.  

Conclusion: 

In this case, the law of negligence can be cited very clearly. Ravi as an employee of McDonald is have not been cautious and could not abide by his duty. When he was aware of the mess that was made on the floor, he needed to take prompt action for cleaning the mess as soon as possible because the risk of someone slipping and falling over due to the mess was foreseeable enough. Therefore, Ravi was responsible for the breach of duty. On the other hand, Archana was also responsible for the physical damage that she suffered. She started drinking when she saw Ravi talking to her friend. As she was upset, she drank throughout the evening and was completely intoxicated when she was ready to leave McDonald’s. She stepped over the mess and slipped easily as she was wearing high heels. If she avoided being intoxicated and acted more carefully, she could have easily avoided the physical damage she suffered. For any sensible person, it was natural to step carefully when the floor was such a mess. She was not careful, as she got drunk. Therefore, it is not only Ravi’s fault but also the fault of her own conduct as well as her own carelessness that she fell down and broke a bone in her lower back region.  The risk was also foreseeable therefore; she had every responsibility to take care of herself.

 

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