BSB111 Lecture Notes - Lecture 11: Ginger Beer, Safeway Inc., Vicarious Liability
Week 11 and 12 Business Law and Ethics Lecture Notes
Negligence and Vicarious Liability
Forms of Legal Liability
• Whe a pesos odut auses ha to aothe peso ad that odut is ot
justified or excused by law, there will be legal consequences: criminal liability,
tortious liability (BSB111), contractual liability (BSB111), statutory liability (BSB111)
and vicarious liability (BSB111).
• A person could bring a statutory action and/or contractual action and/or tortious
action against the wrongdoer.
Tortious Liability
• A harmful act may be a tort. A tort is a civil wrong – an act that causes harm to
another person and that gives that person to right to commence a tortious action to
recover compensation.
• Tort law is concerned with the provision of a remedy to the victim of the harmful act
(criminal law is concerned with punishing the wrongdoer). A single harmful act can
be both a tort and a crime.
• Tort law is primarily case law, developed by the courts.
• Examples:
o Liability for breach of duty to take reasonable care, which raises the question
of negligence – today, this is the most important area of tort and is the focus
of BSB111.
o Direct interferences with person or property, which fall within the area of
trespass.
o Liailit fo isepesetatio that affet a pesos eputatio ad stadig
in the community which fall under the area of defamation.
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The Trot of Negligence
• A person commits the tort of negligence if they carelessly cause harm to another
person.
• Negligence is by far the most common tort.
• The law of negligence traditionally consisted primarily of case law rules. Since the
civil liability reforms following the insurance crisis the law of negligence is now a
combination of case law and statutory rules.
• In Queensland, the relevant statute is the Civil Liability Act 2003 Qld CLA.
Negligence
• For a legal action in the tort of negligence to succeed, the plaintiff must establish all
of the following –
1. The defendant owed the plaintiff a duty of care,
2. The defendant breached that duty of care, and
3. The defedats eah aused the plaitiff to suffe ha.
4. Even if all three elements are satisfied, the defendant may be able to reduce
their liability or avoid liability entirely if they can establish certain defences.
Case 1
• Mrs Donoghue went to a cafe with a friend. The friend (not Mrs Donoghue) bought
her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque
bottle so that the contents could not be seen. Mrs Donoghue poured half the
contents of the bottle over her ice cream and also drank some from the bottle.
• After eating part of the ice cream, she then poured the remaining contents of the
bottle over the ice cream and a decomposed snail emerged from the bottle.
• Mrs Donoghue suffered personal injury as a result. She commenced a claim against
the manufacturer of the ginger beer
o Do you think that the manufacturer had a duty of care towards Mrs
Donoghue?
• Donoghue v Stevenson (1932)
o Held that the manufacturer did have a duty of care to Donoghue as a
consumer, even though there was no contractual relationship between them
(she did not buy the drink herself)
Case 2
• Towards midday on Saturday 20 January 1979 Zaluzna entered the foyer area of the
Safeways supermarket at Mount Waverley in Victoria, intending to buy some cheese.
It was a rainy day and the vinyl-tiled floor of the foyer area had become wet or
moist.
• Unfortunately, before entering the area of the supermarket where the merchandise
was displayed, the respondent slipped and fell heavily on the floor. She sustained
personal injury.
o Do you think that Safeways Stores had a duty of care towards Zaluzna?
• Australian Safeway Stores v Zaluzna (1987)
o Held that there was a duty of care to Zaluzna, and that occupiers in general
have a duty of care towards those who come onto their premises.
find more resources at oneclass.com
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Requirement 1: duty of care
• The onus is on the plaintiff to establish that a duty of care was owed by the
defendant.
• However, there are many established categories of duty of care, so in such cases the
establishment of the existence of a duty of care will be relatively straightforward.
Duty of Care
• Established categories include:
o Motorists owe a duty of care to other road users
o Doctors owe a duty of care to their patients
o Manufacturers owe a duty of care to people who use their products
(Donoghue v Stevenson)
o Occupiers owe a duty of care to people who come onto their premises
(Australian Safeway Stores Pty Ltd v Zaluzna)
o Employers owe a duty of care to their employees
o Directors owe a duty of care to the company
o Agents owe a duty of care to their principal
Case 3
• Bourhill, who was pregnant, got off a tram. As she reached to get her basket off the
tram, Young drove his motorcycle past the tram at excessive speed and collided with
a car 50 feet away from where Bourhill was standing. Young was killed by the
impact. Bourhill heard the collusion but did not see it.
• A shot tie late, Bouhill alked past hee the iidet had oued. Yougs
body had been removed but there was a lot of blood on the road. Bourhill went into
shok ad he a as stillo. Bouhill sued Yougs estate fo egligee.
o Do you think that Young had a duty of care towards Bourhill?
• Bourhill v Young (1943)
o Held that Young did not have a duty of care towards Bourhill. There was not
sufficient proximity between Bourhill and Young, and the harm caused to
Bourhill was not reasonably foreseeable.
Case 4
• In a rural locality in South Australia, a number of farmers grew potatoes, some for
export to Western Australia. Apand Pty Ltd was a potato crisp manufacturer who
introduced a form of disease, known as bacterial wilt, onto the land of one farmer.
• The Western Australian regulations imposed a prohibition on the importation into
Western Australia, not only of potatoes grown on land known to be affected by the
disease, but also of potatoes grown on land within a certain distance of affected
land. Frank Perre, together with other neighbouring farmers, was involved, in
various ways, in potato growing on such land, and claimed to suffer financial loss.
o Do you think that Apand Pty Ltd had a duty of care towards Perre?
• Perre v Apand (1999)
o Held that Apand Pty Ltd did owe a duty of care to Perre. This was determined
by considering not only whether the harm was reasonably foreseeable, but
also whether the salient features of this case were consistent with others
instances in which there is known to be a duty of care.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Week 11 and 12 business law and ethics lecture notes. Tortious liability: a harmful act may be a tort. The trot of negligence: a person commits the tort of negligence if they carelessly cause harm to another person, negligence is by far the most common tort, the law of negligence traditionally consisted primarily of case law rules. Since the civil liability reforms following the insurance crisis the law of negligence is now a combination of case law and statutory rules. In queensland, the relevant statute is the civil liability act 2003 (cid:894)qld(cid:895) (cid:894)(cid:862)cla(cid:863)(cid:895). Case 1: mrs donoghue went to a cafe with a friend. The friend (not mrs donoghue) bought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. She commenced a claim against the manufacturer of the ginger beer: do you think that the manufacturer had a duty of care towards mrs.
