Business Law Assignment
The Tort of Negligence
Name
Instructor
Date
The Tort of Negligence
Question 3
If Sophie were to sue Michael in the tort of negligence, would she be likely to succeed? Provide detailed reasons based on the relevant law.
Issue
Is Michael liable for the tort of negligence owing to the fact that Sophie got food poisoning after eating sea food prepared by Michael?
The Rule of Law
According to J. Fleming, a tort can be defined as a civil wrong, other than a breach of contract, which the law redresses through damages. The age-old case of Donoghue v Stevenson established the elements of negligence which a claimant must prove their case. In the aforementioned case, Mrs. Donoghue’s friend bought a bottle of ginger beer manufactured by Stevenson, which Mrs. Donoghue drank. The bottle was opaque hence one could not see the contents clearly. Remains of a snail eventually appeared as the drink was poured and Donoghue suffered gastrointestinal malaise and nervous shock. She sued the manufacturers for negligence. The House of Lords held that Stevenson indeed owed Mrs. Donoghue a duty of care hence were negligent. This was a landmark case that brought out the five elements of tort of negligence. First, a defendant must owe the claimant a duty of care whether direct or indirect.
Secondly, there must be breach of that duty and this occurs when the defendant fails to exercise reasonable care in fulfilling their duty to the claimant. The South Australian Civil Liability Act 1936 codifies the common law position on breach of duty under Sections 31 and 32. Section 31 stipulates that the standard of care required is that of a reasonable person in relation to the defendant. Section 32 (1) talks about the test of breach of duty; was it reasonably foreseeable? was it significant and was the defendant’s response reasonable? The Civil Liability Act 1936 (SA), states that to determine if negligence caused a particular damage, there must be causation in fact and in law. Additionally, the defendant’s actions must be the actual cause of the plaintiff’s injuries, that is, but for the defendant’s actions, the plaintiff would not have been injured. There must be proximate cause whereby the defendant must have foreseen the risk or danger of his/her actions. Lastly, the defendant’s lack of reasonable care must have caused actual damages to the plaintiff and the claimant must prove the legally recognizable harm to person or property in a negligence suit.
Application
Michael owed a duty of care to Sophie and his other customers because he was both the owner of the restaurant and the chef at the time when Sophie had a meal at the eatery. He breached the duty of care when he failed to exercise reasonable care in preparation of the “seafood special”. The raw fish must always be kept cold at all times yet Michael forgot to do so and instead used warm raw fish to make Sophie’s meal. Michael is a professional chef and knew that the raw fish had to be kept cold to avoid bacteria growing on it; he could foresee the risk of using badly stored raw fish but neglected the dangers. Michael’s action was the actual cause of Sophie’s food poisoning; if Michael had exercised reasonable care in preparing the seafood special, Sophie would not have been hospitalized for food poisoning. Lastly, there were actual damages suffered by Sophie. She suffered food poisoning and was hospitalized for two days and this further interfered with her work as she could not work for two days. Michael’s actions meet all the elements of the tort of negligence as stipulated by common law and The Civil Liability Act 1936 (SA).
Conclusion
Michael’s actions meet all the elements of the tort of negligence as stipulated by common law and The Civil Liability Act 1936 (SA). As such, it is fair to say that Michael should be held liable for Sophie’s claim of negligence. Sophie would definitely succeed if she sued Michael in the tort of negligence.
Bibliography
John Fleming G. The law of torts. (Law Book Company for New South Wales Bar Association, 1987, Vol. 1)
Statutes
Civil Liability Act 1936, South Australia
Cases
Donoghue v Stevenson [1932] AC 562