Negligence

1. Negligence A person is obliged to take reasonable care in regards to other people, where it is reasonably foreseeable that other people could be harmed by their actions or omissions. Cailin, Rebecca, Aneta and Nat

2. Donoghue v. Stevenson(UK) The first recorded case of negligence was the Donoghue v. Stevenson incident in 1932. On 26th August 1928, Donoghue and her friend entered the ‘Real Italian Ice Cream Saloon’ that was owned and operated by Francis Minghella. At approximately 8:50pm, ice cream and ginger beer (Scottish float) were purchased for Donoghue. After she had drunk half the contents of the bottle, a decomposed snail was poured out of the bottle. She became ill. She did not have a contract with the manufacturer, Stevenson who made the bottle of ginger beer, because she did not buy the bottle. She claimed the manufacturer had been negligent and that because the bottle was opaque and Donoghue could not see the contents of the bottle, she did not have an opportunity to check the bottle’s contents before drinking it.

3. Donoghue initially attempted to sue the shop owner but failed as the bottles came sealed with clear intention that it would remain that way until sold to the consumer. She then accordingly instituted the proceedings against the manufacturer which have given rise to this appeal. The case was heard in the House of Lords on the 26th May 1932, it was first rejected by Lord Buckmaster but then was allowed by Lord Atkin. The House of Lords ruled that manufacturers owe a duty of care to ensure that their products are free from defects that could injure someone’s health. The court ruled that a manufacturer (Stevenson) failed to take reasonable care in providing a product which he or she knew would be used directly by consumers who would consume it with no reasonable opportunity for the distributor or consumers to inspect the goods prior to the consumption.

4. Judges relied on precedent, but the absence of a general statement of the law meant it was difficult to determine duty of care existed in a particular case unless a similar fact situation had been ruled upon by the courts previously. Recovery against a negligent manufacturer who did not directly and in person cause physical harm or property damage was difficult. At the time, there was a shift from small local business to large manufacturers, shipping securely packaged foods, beverages, medicines and other household goods across the county- it became increasingly important to resolve the issue of legal responsibility to the safety of such items and for any harm they might cause to consumers. • Consisting of Lord Atkin, Buckmaster, Macmillan, Thakerton and Tomlin. The final decision in the case went 3 to 2 in favour of Ms Donoghue. Lords Buckmaster and Tomlin disagreed.

5. In The End The truths regarding the misadventures alleged by MrsDonoghue was never ruled on because David Stevenson died in November, 1932, and after the executors of his estate were added as parties to the action, they settled the matter out of court. So in the end we don’t know if there was a snail and if so, whether it was the cause of Mrs Donoghue’s illness, we don’t even know if she really was sick. The ginger beer may not have even been brewed by Stevenson because around that time it was apparently common to make copies. What we do know is that the shock waves from the decision of the House of Lords in Donohue v Stevenson were felt around common law world and reverberate still today, more then seventy years after Mrs Donoghue met her friend for some refreshments.

6. Symons v. Cedar College (South Australia) Cedar College is a non profit religious and educational incorporated association in South Australia, established as an outreach ministry of the Baptist Church. The school held a junior sports day on 11 September 2009 during which a large tree fell on some spectators who were standing near the school administration building. Three people were injured, on of them was rendered a paraplegic. The school pleaded guilty to a breach of section 22(2)(a) of the Occupational health, safety and welfare act. The facts included are that the defendant school failed to remove the tree in question prior to the school sports day, and that the wind conditions on the day were severe, but the school did not ensure that activities were not conducted under or near the tree.

7. The Tree The tree had actually been surveyed by an arborist in 2005, and designated as a tree needing high priority pruning, at an estimated cost of $690. This pruning had not been carried out. Again in 2007 a further arboricultural survey was carried out which recommended the removal of the tree in question at a cost of $1950. The tree was recommended for removal within 6-18 months, and the life of the tree was estimated at less then 5 years. At the time of the incident, 21 months had passed since this survey. The tree was finally removed on the day after the incident.

8. The case The case was heard in the Magistrates Court of South Australia. The case was between Symons, David and Cedar College Incorporated. The hearing dates were the 14 and 22 of December 2011 and was herd under the judgment of Industrial Magistrate M Ardlie. Since the incident was reasonably foreseeable, and the injuries had been potentially fatal the school pleaded guilty to an offence. When sentencing the school the Magistrate took into account the early guilty plea and the schools willing co-operation with the case. However although the school had shown they had gotten the large number of trees looked at, they didn't’t actually take in the arborists recommendations. His Honor found that the general and specific deterrence would be better served by a conviction and penalty. The maximum penalty for a body corporate under the act is $300 000. Taking into account a discount of 25% for the early plea and cooperation, His honor recorded a conviction and fine plus costs of $109 917.