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1. Jean was a regular shopper at East End Four Corners Supermarket, which was part of a large nationwide supermarket chain. She was there at least once a week and sometimes more often if the specials were really good. When Jean was there this week, she slipped on some grapes in the fruit section, slipping and falling and breaking her ankle. The store manager was not sure how the grapes got there or how long they had been there, but store policy was to do checks every 15 minutes of the floor in the fruit section. The store manager indicated that there were a number of spillages every week in the green grocery section of the store. What does Jean need to establish in order to succeed in an action of negligence against East End Four Corners Supermarket? Your response should consider and apply the essential elements in proving a case in negligence, the remedies applicable if successful, and any defences that might be available to the defendant."

2. Norris had decided for some time that he wanted to purchase a motel. After looking at several different areas, he settled on Port Stephens in New South Wales as offering both the potential for a business and the lifestyle he was seeking. He rang a number of real estate agents, inquiring whether they had any motels listed for sale. He finally found a motel and general business listed with an estate agent called Evatt told Norris that once he got going in this business it would be a gold mine. Norris sought an accountant’s advice and then proceeded to buy the business. Within six months of buying the motel and general business Norris was broke because there were neither the tourist numbers nor the local population to sustain the business. Advise Norris on whether he can sue the estate agent for his statements about the business and whether you think he can succeed."

What Jean needs to Establish

In a bid to succeed in an action against East End Four Corners Supermarket, Jean has to prove that the slipping and falling was a result of negligence on the part of the store manager, the employees or the supermarket. The question with this regard is whether an extra caution on the part of the property owners would have avoided the accident (Gibson, 2010). In a bid to prove this, only one of the following need to be proven: i) that the store manager or his employees ought to have known of the dangerous condition since any reasonable man in that position would have known about the hazardous condition and fixed it, ii) that the store manager or his employee were actually aware of the floor condition and failed to fix or do something about it and iii) that the store manager or his employees caused the slipping condition (FindLaw, n.d.). From the foregoing, it is evident that the first situation would be the cause of litigation in this case since the store manager acknowledges that they were not aware how the grapes got on the floor and they were definitely not the cause of the spilling condition.

When proving the first scenario, Jean will have to demonstrate the fact that property owners have a duty to maintain reasonably safe conditions in the supermarket and reasonable action was not taken to mitigate the risks of sliding and falling resulting to injury. There are a number of questions that can help determine the reasonableness of the store owner’s actions in Jean’s case. First is how long the defect had been present on the floor prior to the accident. Secondly is what kind of daily cleaning activities were being conducted by the store manager. From the case, the store manager states that store policy was to do checks every 15 minutes of the floor in the fruit section and this counts as a reasonable action. Thirdly is whether there was legitimate reason for the slippery object –the misplaced grapes- to be there and finally, if there was legitimate reason for it to be there, did such reason exist at the time of the accident. The fact that the grapes were there because of spillage means there was no legitimate reason whatsoever for them to be there at the particular time.

If Jean successfully proves that the store acted negligently, then the remedy likely to be given in such a case are damages. Damages are often in terms of compensation which include medical bills, lost wages, emotional distress, pain and suffering (Barker et al., 2012). 

Carelessness, clumsiness or contributory/comparative negligence are possible defenses on the part of the store owners (FindLaw, n.d.). Simply because one slipped and fell does not mean the property owner was negligent as one owes himself the duty to be careful when traversing certain places. Property owners are not responsible for injuries that a reasonable person would have avoided (Barker et al., 2012). . As for comparative negligence, if the occurrence of the accident was contributed by the fact that Jean acted negligently in the buildup of the accident, then the store can mitigate damages to be awarded. This is possible where the complainant was engaging in other activities that contributed to the slip and fall.

Possible Remedies

2. Issue

Whether Norris can successfully sue estate agent Evatt for statements he made about the motel business at Port Stephens.

  1. Section 18 of the Australian Consumer Law in the Competition and Consumer Act 2010 provides that“An individual must not, in trading activity or commerce, engage in conduct that is deceptive or misleading or has the potential of misleading or deceiving the other party into contracting.”
  2. Contracts entered through false misrepresentation are voidable at the expense of the misrepresented party.

False misrepresentation in contracts occur when a false statement is made by a party to induce another to enter into a contractual relationship. There are a number of aspects that make statements made in contracts misrepresentations. The statement is i) made by a seller who ii) has knowledge that it is false but still iii) makes it carelessly and recklessly despite the fact that he or she does not believe in its truth (Corones, 2014). The principle of false misrepresentation was portrayed in the case in ACCC v Telstra Corporation Limited (2007) 244 ALR 470. The defendants advertised their network to be having ‘coverage everywhere you needed it’ when in reality, it did not. Despite even referring to a disclaimer on the company’s website, the defendant was held liable for misleading or deceptive conduct to her consumers, contrary to section 18 of the Act.

However, while proving that a statement amounts to misrepresentation, the plaintiff has a burden to demonstrate the following. First, that the statement in question was false in nature. Norris has to prove that the assertion “the business would be a gold mine” was not a true statement at the time it was being made. He has to prove that even at the time the motel was being sold, the tourist numbers had been exaggerated and were nothing close to the perceived numbers. Secondly, he has to show that the statement was more than a mere trade puff. Trade puffs allow salespersons to make exaggerated statements or expressions without being legally bound to them (Gibson, 2010). They are just commendations and nothing more. Saying that a car is in good shape is a trade puff. Stating that a business would be a gold mine easily qualifies as a trade puff owing to its ambiguity and its unspecific nature. The statement also has to be one of fact and not just an opinion. The general rule is that mere opinions do not amount to misrepresentations. Finally, Norris will have to show that he indeed relied on the statement to make up his mind on purchasing the motel. From the case, it is evident that this was not the case as Norris still sought an accountant’s advice on the investment before making a decision to purchase.

Conclusion:

From the foregoing, Norris would not be able to successfully sue estate agent Evatt for statements he made about the motel business at Port Stephens as such were mere trade puffs and failed on the requirements of false misrepresentation.

References:

ACCC v Telstra Corporation Limited (2007) 244 ALR 470.

Barker, K., Cane, P., Lunney, M., & Trindade, F. (2012). The law of torts in Australia. (5th ed.).  Oxford University Press.

Competition and Consumer Act 2010.

Corones, S. G. (2014). Competition law in Australia. Thomson Reuters Australia, Limited.

Findlaw (n.d.). Proving Fault in Slip and Fall Accidents. Retrieved from https://injury.findlaw.com/torts-and-personal-injuries/proving-fault-in-slip-and-fall-accidents.html

Gibson, A. (2018). Value pack business law + myBusLawLab with etext (10th ed.). Melbourne.

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