In order to make a claim for negligence it is necessary to
establish:-
-
A duty of care is owed;
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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.
