Tuesday, March 1, 2016

Q5


In order to make a claim for negligence it is necessary to establish:-

-          A duty of care is owed;

-          The duty was breached; and

-          The breach caused damage.

According to Donoghue v Stevenson [1932] a duty of care is owed to your neighbor and this is defined as persons who can reasonably foresee as likely to be affected by their conduct. In our case the caterers would owed me a duty of care as any act that would contaminate the food is likely to cause a consumer injury or damage as it is foreseeable that food will be consumed. As in Donoghue v Stevenson [1932] where the manufacturers of a drink owed the ultimate consumer a duty of care.

 

The duty of care is breached when the Defendant’s conduct falls below the standard of the reasonable man. In deciding what is the standard of care, the courts will be invited to consider a variety of factors including the probability of harm (Bolton v Stone), the likely seriousness of hard (Paris v Stepney Borough Council) and the obviousness of the risk (Woods v Multi Sport Holdings) In our current case, it would be obvious that is there is a rat in the food, the caterers would not only fall short of the standard of care but it may well be a breach of safety standards that may well attract criminal prosecution.

 

Finally it is necessary to show that the breach of duty had resulted the damage. The commons test for causation is the “but for” test which states that but for the breach, would the damage have occurred. (Yates v Jones [1990]) or in a case of multi causes, would the breach have materially increased the risk of the damage (Cook v ACT Racing Club [2001]) In our current case, the rat in the food, which as stated above would have been the breach or the carelessness, was the cause of the food poisoning – unless of course we are able to show there were other causes which is unlikely – in which case it is necessary to show it had materially increased the risk of the food poisoning.

The next issue would the liability of the caterer for the broken arm. The rule is that even if the damage was caused using the but for test, the damage would not be attributable to the Defendant is it was not reasonably foreseeable consequence  or it was too remote – The Wagon Mound No.1 [1961] Whilst the hospitalization was a direct result the broken arm may not be a foreseeable consequence. It may be a new act that breaks the chain of causation or a novus actus interveniens.

 

In conclusion, the caterers would be liable to me for the food poisoning but perhaps not the broken arm as it may not be a consequence that is reasonably forseable.