1. Tom is a 65-year-old war veteran who regularly puts on his roller blades to get around. He was roller blading along the footpath past the ABC supermarket when he remembered he was out of milk. There was a sign at the entrance stating "Customers must wear appropriate footwear when entering the store". Without taking off his roller blades, he skated into the supermarket. However, before he could reach the milk aisle, he slipped on a melted ice cream that a customer had dropped on the floor half an hour earlier. Tom had an old combat injury from being shot in Vietnam, and the fall shattered his leg in seven places. Tom is now unable to ever return to his regular job as a dog walker. Required: Advise Tom of his legal rights by reference to relevant legal principles and cases. 2. Issue: This is a negligence problem. For Tom to succeed, he must prove each of the three steps in negligence: duty of care, breach and damage (Donoghue v Stevenson). However, ABC may avoid liability if they succeeds in a defence. Duty: Does ABC owe Tom a duty of care? Rule: The duty falls into an existing precedent category. In this case, pursuant to Australian Safeway v Zaluzna occupiers have a recognised DoC to invited entrants. Application and Conclusion: Tom was invited as a lawful entrant so Zaluzna is applicable. There is a strong argument that ABC owes Tom a DoC. Has the DoC been breached? Rule: A person breaches their DoC if they fail to meet the standard that a reasonable person is required to show to avoid unreasonable risk of harm. Factors the courts use to help determine whether there is a breach: Probability of harm: Bolton v Stone, the burden of taking precautions: Latimer v AEC, Social utility of defendant's conduct: Watt v Hartfordshire CC Seriousness of injury: Paris v Stepney CC. Application and Conclusion: Has ABC acted as the reasonable person in leaving the spilt ice cream on the floor for half an hour? The likelihood of injury of anyone legally/properly on the premises being injured seems high because a small child or pregnant woman could easily slip and fall. The cost of cleaning it up is low and common practice would suggest leaving spills in a workplace and public area is a breach of health and safety standards. The seriousness of injury is high, particularly considering the wide range of people who enter a supermarket. However, ABC has placed a sign warning shoppers to wear appropriate footwear. However, on weighing up these factors, it seems that the DoC has been breached because half an hour is an unreasonable amount of time to leave a spill on the floor in a busy supermarket. Has there been damage caused that was not too remote? Rule: It must be shown that the damage was caused by the breach and that it is appropriate to extend the defendant's liability to the harm. For causation, the test is the "but for" test (March v Stramare or Yates v Jones). On the remoteness test is the damage reasonably foreseeable? (Wagon Mound). The eggshell skull plaintiff rule states that the defendant must take their victim as they find them, ie where the plaintiff suffers greater than usual harm because of a pre-existing medical vulnerability, the defendant will be liable to the full extent of the harm. Application and Conclusion: But for the spill Tom would not have been injured. There is certainly a link between the breach and Tom's injury. It is reasonably foreseeable that a person would slip on a melted ice cream, so it is not too remote. Tom is an eggshell plaintiff with an old injury so the defendant must take Tom as they find them so the combat injury will not reduce the liability of ABC. What are the potential defences? Rule: The complete defence of voluntary assumption of risk (Agar v Hyde) and the partial defence of contributory negligence (Manley v Alexander or Ingram v Britten). Under s 26 of the Wrongs Act 1958 (Vic) damages may be reduced to the extent of the plaintiff's contribution to their injury. Application and Conclusion: By skating in a supermarket it may be argued that Tom has voluntarily assumed the risk involved in this kind of activity. However it must be shown that Tom had full knowledge of that risk and willingly agreed to that risk and the facts do not state that he was aware of the spill. The sign only warned to wear appropriate footwear and the skates might be appropriate for an experienced roller-blader such as Tom. It might be easier to make out this defence if it can be shown that Tom skated deliberately into the spill (but he did not), so VAR appears unlikely. By wearing skates, it can be argued on the other that Tom contributed to his own injury, for example by failing to keep a lookout for dangers inherent in supermarket skating. What are the damages likely to be awarded to Tom? The compensation would be reduced to the extent of his own culpability, by approximately 25%. The precise ratio of culpability to determine Tom's contributory negligence can be determined by referring to what was decided in equivalent cases. The quantum (amount) of damages will be Tom's medical expenses and loss of income earning capacity. Medical expenses will consist of present medical expenses together with an estimation of his future expenses. Tom is also under a duty to mitigate his losses, for example by considering a form of employment that does not require him to walk