Ignorance and Demand for Liability Insurance

Question: Discuss about the Ignorance and Demand for Liability Insurance. Answer: Introduction: A shop that welcomes people to buy their products has a duty to ensure they are reasonably safe. If a customer falls in the store due to an unreasonable condition, he or she can claim for injury against the store. In the case of Tamara and Aldi Supermarket, for example, Tamara is a loyal customer to the store. However, one Saturday morning as Tamara was running towards the far end of the confectionary aisle, she slips on a melted ice cream and falls, upon which she breaks her back. As a result of this, Tamara spends several months recovering in hospital with general damages alone in excess of $700,000. Now, she wants to sue Aldi Supermarket for the negligence of her losses, but Aldi Supermarket can prove that it has a member who cleans the aisle after every 40 minutes. Therefore, what follows in this discussion is the legal requirement on negligence misrepresentation and further an analysis of what Tamara should do in her situation. Legal Requirement in a Negligent Misrepresentation Action In cases of negligent misrepresentation, the ordinary laws of negligence apply. However, the plaintiff, in this case, Tamara, must prove three things in the action: the defendant owes her a duty of care; she faced damage or economic loss; the defendant went below the necessary standard of care. The Duty of Care According to Fleming, the duty of care is an obligation, recognized by law, to avoid conduct fraught with unreasonable risk of danger to others (Sadler, 2009, p.19). When the plaintiff faces pure economic loss, it becomes quite difficult for him or her (Velasco, 2015, p.648). This is where the arguments based on indeterminacy get played out. The duty of care concept shows that the courts envisaged that the two parties the plaintiff and the defendant (Tamara and Aldi Supermarket respectively) must be in a closeness or nearness (Kangoh, 2016, p.273). According to Lord Atkin, in his speech Donoghue v Stevenson, this relationship is called a neighbor." Atkin says that You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor (Sadler, 2009, p.19). A neighbor, in this case, is the person who is closely and directly affected by the other persons acts. If the plaintiff suffered personal injury, then the court has no trouble in finding that the duty of care exists (Greiner, 2014, p.530). The nature of the damage, therefore, shows that at one time there was a physical closeness between the two parties. However, if the damage has a purely economic loss, it becomes hard for the court to demonstrate that there was a sufficient relationship between the parties for the establishment of the duty of care. Standard of Care Standard of care is also called the scope of duty. It is the negligence part of a negligence action. A defendant is expected to demonstrate a reasonable standard of care, and so is Aldi Supermarket. According to the objective standards, the appropriate standard of reasonable care is the standard which should have been reached according to the law, and not according to the defendant. If the accused does not reach the professional standards, it implies that he or she has not reached the required standard of care (Sadler, 2009, p.23). However, compliance with the accepted standards does not necessarily imply that the defendant becomes exonerated from liability. Damage Another element that Tamara has to prove to the court is that she suffered damage from the negligent action of Aldi Supermarket. Based on causation in common law, Tamara must show that Aldi Supermarket contributed to her loss. Nonetheless, negligence of the defendant may not be the only cause of loss (Hamer, 2014, p.162; Pagura, 2015, p.255). The loss could also occur if the defendant is not negligent. In this regard, then the defendant is not held liable for the plaintiffs losses. The but for test is used to determine such situations (Sadler, 2009, p.24). The practical limitations of this test are that: (1) the test holds that there was no cause of the injury despite having independent and sufficient causes of the accident that resulted in injury. (2) In the case of a superseding event between the negligent action of the defendant and the injury to the plaintiff, the court resolves this judicially by combining the but for and the common sense test. If the defendants negligence caused injury to the plaintiff, the plaintiff gets only compensated where the damage was reasonably foreseeable. According to the Civil Liability Act, on the Scope of Liability,' the consequences to a defendant are reasonably foreseeable if they lead to real risk which a reasonable man would prevent (Bajtelsmit Thistle, 2009, p.110). Analysis It is a fact that Tamara slipped, fell and got injured in Aldi Supermarket. This is enough to allow her to have a valid claim against the business. The reason for this is as mentioned earlier: businesses have a duty to ensure their customers are reasonably safe (Zipursky, 2015, p.2142). However, having a valid legal claim is not always smooth because the plaintiff has an obligation to prove to the Court that the slip and fall were as a result of unsafe conditions in the store. Besides that, the store will only have a responsibility to compensate the customer depending on pfarticular facts about the accident, but not based on the common conditions that may cause slip and fall in such stores. Therefore, the legal responsibility of the business depends on whether it should have reasonably noticed the unsafe condition but failed to take the required action to fix it. However, being that Aldi can prove to the Court that it has a member who inspects and cleans the aisle after every forty minutes, then it is evident that the store demonstrates a reasonable standard of care. Besides, according to causation, the but for and the common sense tests, Tamaras injury could not be as a result of Aldis negligence. There is a high chance that she could still get injured even without the issue of negligence because it was morning and she was running fast to get the remaining chocolate bar. Therefore, in the case of Tamara v Aldi Supermarket, Aldi is not liable for Tamaras losses. As such, Tamara should not carry on with the case. Reference List Bajtelsmit, V, Thistle, P 2009, 'Negligence, Ignorance and the Demand for Liability Insurance,' Geneva Risk Insurance Review, 34, 2, pp. 105-116. Greiner, R 2014, 'Environmental Duty of Care: From Ethical Principle Towards a Code of Practice for the Grazing Industry in Queensland (Australia),' Journal of Agricultural Environmental Ethics, vol. 27, no. 4, pp. 527-547. Hamer, D 2014, ''Factual causation' and 'scope of liability': What's the difference?', Modern Law Review, vol. 77, no. 2, pp. 155-188. Kangoh, L 2016, 'Risk Aversion, the Hand Rule, and Comparison between Strict Liability and the Negligence Rule,' Review Of Law Economics, 12, 2, pp. 261-274. Pagura, I 2015, 'Negligence: What you need to know,' Journal of the Australian Traditional-Medicine Society, vol. 21, no. 4, pp. 254-256. Sadler, P 2009, Liability for Negligent Misrepresentation in the Finance Industry.' 1st ed. [ebook] School of Business Law and Taxation, pp.17-25. Available at: https://www.austlii.edu.au/au/journals/LegIssBus/2009/3.pdf [Accessed 17 Jan. 2017]. Velasco, J 2015, 'A Defense of the Corporate Law Duty of Care,' Journal of Corporation Law, 40, 3, pp. 647-703. Zipursky, BC 2015, 'Reasonableness In And Out Of Negligence Law,' University Of Pennsylvania Law Review, 163, 7, pp. 2131-2170.