BSB111 Lecture Notes - Lecture 11: Ginger Beer, Potato Chip, Misrepresentation
Week 11 Business Law and Ethics Lecture Notes
Negligence
Forms of Legal Liability
• Whe a persos odut auses har to aother perso 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 for isrepresetatio that affet a persos reputatio ad stadig
in the community which fall under the area of defamation.
find more resources at oneclass.com
find more resources at oneclass.com
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 reah aused the plaitiff to suffer har.
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
find more resources at oneclass.com
Document Summary
Week 11 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.
