Contributory and Comparative Negligence Process

Question: Discuss about the Contributory and Comparative Negligence Process. Answer: Introduction: Negligence has been regarded as a failure on the part of an individual to take reasonable care in order to avoid causing harm or damage to any other individual (Negligence, 2016). In order to prove negligence on the part of an individual there has been four major steps which should be proved by the applicant as the burden of proving such negligence was always on him. The case of Donoghue v Stevenson [1932] AC 562 has been the landmark case which has recognized the contemporary law of carelessness and recognized the neighbour test (E-lawresources, 2016). There was a responsibility in the circumstances to be concerned i.e. the person owed a duty of care towards other individual; The act or inaction of the respondent in the circumstances did not ordinary way of care which a reasonable person would convene in the circumstances i.e. contravention of such obligation; The applicant suffered harm and damage which a rational person in the circumstances could have been predictable to anticipate i.e. damage; The harm was caused by the contravention of such duty i.e. causation (Bugg, 2006). A obligation of care has been defined as a lawful duty to avoid an act which would cause harm or where the injury was reasonably foreseeably occur if reasonable care was not taken (Freilich, 2000). So, in order to establish that a duty of care was violated the tribunal must have a look at the standard of care which would have been seen to be expected in all the situations (The Law Handbook 2016, 2016). The standard of care could be dogged by looking at what a prudent individual would have done (or not done) in the similar situations (Legal Services Commission of South Australia, 2016). Where a respondent has acted in an irrational manner or their dealings fell well below the standard which was predictable then they would be found to have violated their obligation of care (Legal Aid, 2016). Also, on the other hand the concept of Contributory negligence could also take place when the injured individuals themselves were found to have contributed to the reason of their harm or loss (E-Lawresources, 2016). If a applicant has failed to take sensible care for their own protection or damage then they would be found contributorily negligent (Justia, 2016). Then the sum of costs an individual could assert would be decreased according to the degree they were found to have contributed to the harm (Legal Services Commission of South Australia, 2016). For example: if a slip or fall takes place as a result of the offended individuals failure to keep a lookout for their own protection where they could sensibly have been expected to do so then both the individuals would be contributorily negligent (FindLaw, 2016). In the case of Jackson v McDonalds Australia Ltd [2014] NSWCA 162, the Court held that the applicant was held 70 percent of contributory carelessness when he slides after going through a obviously wet floor where sign was posted and did not grasp any rails. McDonalds was held 30 percent liable for the legal responsibility for its breakdown to wash up the tip out waste right away. Similarly in another case of Fitzsimmons v Coles Supermarkets [2013] NSWCA 273 in which it was clearly stated by the Court that the applicant was 50 percent contributory neglectful for fading to pay attention to the drenched floor symbols which were located about the pond of water on which the applicant slided. Coles was held to bore 50 percent of the legal responsibility because its symbols were mendacious falsely and exterior to the usual area of idea of the clients and botched to position a worker around the fall to advise clients. In another matter of Hamilton v Duncan [2010] NSWDC 90, the tribunal have concluded that the applicant was 30 percent contributory neglectful for not keeping a appropriate guard for the hole in spite of the fact that they were being conscious of the hole in which he tripped and even advised a witness of its attendance minutes previous to the calamity. The occupiers bore the outstanding obligation for its breakdown to examine the region and fill in the hole(s) in a opportune style (Bannermans, 2016). So, in the present situation as it was the wet Saturday morning on which Tamara walked down the confectionary passageway of her restricted Aldi Supermarket. And she saw that there was only one chocolate left which was at the end of a lane so, she began to run towards the chocolate bar. But it was clearly stated that the other shopper was at the far end of the aisle. As a result of which she ran even faster with a view that if she would walk slowly then she might not be able to get that last piece as she saw another shopper near that chocolate shelf. As a result, when she made an attempt to reach faster for the chocolate bar she falls on a pond of melted ice cream and smashed her back. Also, Aldi Supermarkets after the allegation was made by Tamara against them for negligence stated that they could show that an employee was appointed by the supermarket who inspects the supermarket passageway and cleans up any wastes every 40 minutes. Conclusion Therefore, it would be advised to Tamara that this case would be a case of contributory negligence which has been proved by the cases which were mentioned above as the supermarket was successful in proving that they made a great effort and taken all precautions which a prudent person would have taken in order to avoid any harm. And it was Tamaras fault as she was wet already when she came in the store because of the rain and then also she ran because she was in a hurry to get the chocolate. And the duty of care which a applicant was stated to show towards another person was also reflected by the act of the defendant and no unlawful act was depicted by the act of them. So, the case would be concluded to be of contributory negligence as the precaution which was taken by the supermarket employees has been proved manner. As a result it has been advised to Tamara that whatever happened was due to the fault of both the sides and not wholly on the part of the defendant. References Bannermans. (2016) Contributory Negligence In "Slip And Fall" Cases - No Control Over The Plaintiff's Own Action Or Inaction? [Online] Bannermans. Available from: https://www.bannermans.com.au/insurance/articles/public-liability/331-contributory-negligence-in-slip-and-fall-cases-no-control-over-the-plaintiff-s-own-action-or-inaction [Accessed on 24/12/16] Bugg, T. (2006) Negligence and damages personal injury, property damage and pure economic loss. [Online] Law Council. Available from: https://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/speeches/20060526Negligenceanddamages.pdf [Accessed on 24/12/16] E-Lawresources. (2016) Contributory negligence. [Online] E-Lawresources. Available from: https://e-lawresources.co.uk/Contributory-negligence.php [Accessed on 24/12/16] E-lawresources. (2016) Donoghue v Stevenson [1932] AC 562. [Online] E-lawresources. Available from: https://www.e-lawresources.co.uk/Donoghue-v-Stevenson.php [Accessed on 24/12/16] FindLaw. (2016) Contributory and Comparative Negligence. [Online] FindLaw. Available from: https://injury.findlaw.com/accident-injury-law/contributory-and-comparative-negligence.html [Accessed on 24/12/16] Freilich, A. (2000) Contributory Negligence and Breach of Contract: The Implications of Astley v Austrust Ltd. Western Australian Law Review, 29, 18-38. Justia. (2016) Comparative Contributory Negligence. [Online] Justia. Available from: https://www.justia.com/injury/negligence-theory/comparative-contributory-negligence/ [Accessed on 24/12/16] Legal Aid. (2016) Negligence. [Online] Legal Aid. Available from: https://www.legalaid.wa.gov.au/INFORMATIONABOUTTHELAW/BIRTHLIFEANDDEATH/PERSONALINJURY/Pages/Negligence.aspx [Accessed on 24/12/16] Legal Services Commission of South Australia. (2016) Negligence [Online] Legal Services Commission of South Australia. Available from: https://www.lawhandbook.sa.gov.au/ch01s05.php [Accessed on 24/12/16] Legal Services Commission of South Australia. (2016) What is negligence?. [Online] Legal Services Commission of South Australia. Available from: https://www.lawhandbook.sa.gov.au/ch29s05s01.php [Accessed on 24/12/16] Negligence. (2016) Negligence. [Online] Negligence. Available from: https://negligence.laws.com/contributory-negligence [Accessed on 24/12/16] The Law Handbook 2016. (2016) Negligence and injury. [Online] The Law Handbook 2016. Available from: https://www.lawhandbook.org.au/10_01_00_negligence_and_injury/ [Accessed on 24/12/16]