You are the licensee of an inner city tapas restaurant with an ‘on licence’ permit. Your clientele is mainly young professionals. One particular client, Larry, has become a problem. Larry comes in regularly on Friday night and appears to have an addiction to sangria and an aversion to Spanish food. The consequence is that he becomes drunk very quickly and often argumentative with both staff and other customers. As a result your clients are dropping off.
a. What are your rights and obligations in relation to Larry, your staff and other clients?
It gets worse, one Friday night, Larry leaves the restaurant. Staff have observed him to be slurring his speech, spilling sangria over the table cloth and stumbling when he gets out of his chair. They watch him leave, but unknown to them, he walks down a side lane to the back of the restaurant to use an old, unused toilet, situated at the back of the premises. The door of the toilet has a lock but it is has rusted and is unusable. While using the toilet, Larry leans on the wall which collapses, leaving Larry seriously injured.
b. As the licensee are you liable for Larry’s injuries? In your answer consider – negligence, vicarious liability and occupier’s liability and the Wrongs Act 1958.
a. Obligations in relation to Larry
Larry is creating nuisance in the restaurant by getting into an argumentative conversation with the staff and the customers. This is substantially affecting a fall in the clientele. The restaurant owner has a right in his ability to stop a person from doing such harm. Larry is been found committing a regular nuisance affecting the business largely. There are possible remedies available to the restaurant owner where he can ask for damages from Larry. Damages are the monetary sum paid for the nuisance created (Abraham, 2017).
Obligation in relation to staff
Vicarious liability is a situation where an employee is held responsible for the act of employees. This situation occurs in the context of a workplace where the action of the employees are taken into consideration while deciding the amount of omission or an act. Employers are held liable under the common law principle, qui facit per alium facit per se which means one who acts through another in his interest. In Australia, sufficient relationship test measures the balance in between several factors for considering the level of authority. As per the law, a person is liable to commit a tort when he has by negligence caused harm to another person. In this situation, an injured party may sue for compensation or damages (Giliker, 2010).
Obligation in relation to other client
The employer has a direct responsibility towards the customers. In case of continuous nuisance created by another client, the restaurant has an obligatory duty to manage the place effectively. In case of nuisance at a public place, it is the duty of the restaurant owner to take precautionary measures to safeguard the interest of rest of the clients. It is mandatory from the point of view of tortious act. The restaurant owner will be held liable for any such act causing harm to their interest( Barker, Cane, Lunney & Trindade,2012).
b. Liability for Larry’s injuries
In case of Negligence:
The tort of negligence arises in case of breach of duty of care. The tort includes 3 elements that are essential to be considered when the defendant has taken reasonable care at the time of the act of negligence. The defendant fails to confirm the required standards and the damages paid to the plaintiff from the breach are not too remote.
In the given situation, there is negligence from the part of the employer and employees. It is their duty to take reasonable care while providing the services. The given situation occurs due to the carelessness of the restaurant and the employees (Mulheron, 2016).
In Donoghue v Stevenson, it was stated that the manufacturers have a final duty of care to the customers. There is no need of a contractual relationship or privity to sue for the negligence. The door of the toilet has a lock but it is already rusted and unusable. The employees were already aware about the issue. In such a condition it is their duty to take due care to avoid any such accidents (Wright, 2017).
However the Civil Liability act 2002, In case of personal risk to an individual, it is important to conduct a reasonable person test with three-step test. The three-step test includes:
An individual is not negligent in taking proper precautions against risk of foreseeable nature; a reasonable person has taken preventive measures to avoid such a situation. While determining whether an individual is a reasonable person or not, the court will consider the probability that the harm could be reduced if proper measures were taken or would have taken enough measures to avoid risk of harm (Mulheron, 2016).
While considering the breach of the duty of care the court will determine the following factors:
- The following factors are considered while deciding the breach caused while determining the rights of the plaintiff:
- The foreseability of the risk associated with the act. It was already clear from the situation that the door can cause potential harm to an individual using it.
The reasonableness should include a number of factors like removing the risk permanently. In the given case, the restaurant owner failed to take effective measures to avoid the situation.
Here, the risk was foreseeable and can cause damage. They fail to meet the required standard in order to avoid the breach of duty (Lunney & Oliphant, 2008).
As per the concept of Vicarious Liability, an occupier is liable for the damages caused due to the negligence of the employees. The employee has a responsibility to take care of the clients. In case of injury caused to the client, due to the negligence of the employees, Employer is held liable. In Australia, sufficient relationship test measures the balance in between several factors for considering the level of authority. As per the law, a person is liable to commit a tort when he has by negligence caused harm to another person (Stickley, 2016).
In the given situation, the defendant can eliminate excess damages caused to the injured party. In Australia, Particularly in NSW, the award of damages is reduced by the same percentage as the plaintiff. Larry was drunk when he was going out of the restaurant. He wouldn’t have met with injuries, if he himself would have taken precautionary measures. In Australia, contributory negligence is available to the defendant a well. It is clear that, Larry is equally responsible for the act of negligence. This is important while taking a decision regarding the damages to be paid off. This is a pure contributory negligence from the side of both the patties. As per WRONGS ACT 1958 - SECT 26, if an individual suffers damage as the consequence of the claimant's failure to take reasonable care and partially due to the wrong of any other person. He is liable to pay equivalent for the damages caused (WRONGS ACT 1958 - SECT 26, 2017).
Hence, the following case it is obvious that the case is under the contributory negligence under WRONGS ACT 1958.
Abraham, K. (2017). The forms and functions of tort law. West Academic.
Barker, K., Cane, P., Lunney, M., & Trindade, F. (2012). The law of torts in Australia. Oxford University Press.
Giliker, P.(2010). Vicarious Liability in Tort: A Comparative Perspective. Cambridge University Press
Lunney, M., & Oliphant, K. (2008). Tort law: text and materials. Oxford University Press.
Mulheron, R. (2016). Principles of Tort Law. Cambridge University Press.
Stickley, A. P. (2016). Australian Torts Law. LexisNexis Butterworths.
WRONGS ACT 1958 - SECT 26,(2017). Online. Retrieved from: https://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/vic/consol_act/wa1958111/s26.html Accessed on: 12 October 2017