Semester 3 – 2025
Summer Semester 2025
Marks: 20
Due: Week 9
Marks: 40
Due: Week 12
Please note: As Week 12 is the last week of the semester, extensions may be difficult. Students are advised to make an early start on this assessment.
The case scenario relates to the Law of Negligence and Torts.
Jerry and Samy work in the Tourist Hospitality Industry in Melbourne. Jerry owns and drives a Mercedes, which transports tourists from the train stations to the city. Samy was recently promoted to the position of General Manager of a chain of hotels in Sydney Harbour.
Jerry wanted to reward Samy with a gift — an all-expenses-paid dinner at the famous Meera’s Restaurant in Geelong, Coastal Victoria. Jerry made the booking, and they drove together from Melbourne to the ocean views in Geelong.
On arrival at the reception desk of the restaurant, they failed to notice a large sign that stated:
“Warning – As a result of our refrigerator breaking down two days ago, our prawns have not been freshly frozen. We exclude all liability whatsoever for any injuries caused by our prawn meals.”
Meera, the owner and manager, had not taken the prawns off the menu because she believed she might suffer a huge financial loss. She was already experiencing financial difficulties due to recent lockdowns and pandemic-related interruptions.
Meera gave them a table overlooking the ocean. As she handed them the menus, she made no comment about the prawns not being properly refrigerated. Samy ordered the prawns, and Jerry ordered the king yabbies.
While eating their meals:
As Jerry poured the last glass of wine from the bottle, he noticed a dead decomposed worm in his glass. He felt nauseous and complained of stomach pain. Likewise, after eating the prawns, Samy became violently ill.
As they hurried to the local hospital, Meera demanded that they pay for their meals and beverages. Jerry paid under protest. Meera blamed the manufacturer of the red wine, Murphy Wines, for the worm in the bottle.
Both Jerry and Samy received medical treatment for gastroenteritis, food poisoning, and skin rashes caused by the prawns and wine.
a. Loss of profits – $10,000
b. Medical expenses – $10,000
c. Loss of an English Government Contract for the sale of Australian apples – $20,000
(Jerry had no previous exporting experience but accepted the unusual contract because his Mercedes business was not performing well after the pandemic. As a result of food poisoning and medical treatment, Jerry was unable to deliver and therefore lost the government contract.)
a. Medical costs – $5,000
b. Loss of earnings – $11,000
c. Loss of hotel accommodation deposit – $4,000
(Samy had paid a deposit for holiday accommodation at the Deepa Hotel in Perth. Due to gastroenteritis and medical treatment, he cancelled his holiday. The accommodation deposit was non-refundable.)
Ensure each question is numbered and answered separately.
Identify and discuss the three (3) elements of negligence that Samy (Plaintiff) must prove.
Discuss the two (2) defences that Meera (Defendant) may argue.
Explain and discuss whether Samy is likely to recover damages for:
Support your answer with case law precedents.
Identify and explain the three (3) elements of negligence that Jerry (Plaintiff) must prove.
Discuss the two (2) defences that Meera (Defendant) may argue.
Discuss whether Jerry is likely to recover damages for:
Support your answer with relevant case law and precedents.
A. Have you included in-text referencing?
Yes / No (2 marks)
B. Have you included a reference list?
Yes / No (2 marks)
Marks will be deducted if this requirement is not met.
You are required to use a range of legal resources in addition to textbooks, including supporting evidence for arguments, analysis, and discussion of the assignment questions.
Refer to the rubric, which indicates the separate marking criteria and allocation.
Feedback and marks will be provided via the LMS within two weeks of submission.
Please avoid the use of AI, ChatGPT, Grammarly, direct copying, or any tools resulting in similarity. Plagiarism must be avoided.
Note: This report is provided as a sample for reference purposes only. For further guidance, detailed solutions, or personalized assignment support, please contact us directly.
(14 marks)
To succeed in an action for negligence, Samy must establish the following three elements:
A duty of care exists where it is reasonably foreseeable that the defendant’s conduct could cause harm to the plaintiff. In Donoghue v Stevenson (1932), the court established that manufacturers and suppliers owe a duty of care to consumers to ensure products are safe.
In this case, Meera, as the owner and manager of Meera’s Restaurant, owed Samy a duty of care as a lawful customer. Restaurants owe a clear duty to ensure that food served is safe and fit for human consumption. It was reasonably foreseeable that serving unrefrigerated prawns could cause food poisoning.
Therefore, Meera owed Samy a duty of care.
A breach occurs when the defendant fails to meet the standard of care expected of a reasonable person in the same circumstances (Wyong Shire Council v Shirt (1980)).
Meera was aware that the refrigerator had broken down and that the prawns were not properly frozen. Despite this knowledge, she:
A reasonable restaurant owner would have removed unsafe food from sale. Meera’s actions clearly fall below the standard of care, constituting a breach of duty.
Under March v Stramare (1991), the plaintiff must prove that the damage suffered was caused by the defendant’s breach.
Samy became violently ill shortly after consuming the prawns and required medical treatment for gastroenteritis and food poisoning. This establishes a direct causal link between Meera’s breach and Samy’s injuries. Samy also suffered financial loss due to medical expenses and loss of earnings.
Thus, the element of causation and damage is satisfied.
Meera may argue that Samy voluntarily accepted the risk by dining at the restaurant where a warning sign was displayed. However, for this defence to succeed, Samy must have been fully aware of the risk and freely accepted it (Rootes v Shelton (1967)).
The sign was not brought to Samy’s attention, and Meera made no verbal warning. Therefore, it is unlikely Samy knowingly accepted the risk.
Meera may rely on the disclaimer sign excluding liability. However, exclusion clauses in negligence are strictly interpreted. Under Australian Consumer Law and common law principles, businesses cannot exclude liability for personal injury caused by negligence in many circumstances.
Given the seriousness of the risk and Meera’s knowledge, this defence is unlikely to succeed.
(4 marks)
Samy is likely to recover damages for the following reasons:
Overall, Samy is likely to recover all claimed losses.
(14 marks)
Meera owed Jerry a duty of care as a customer of the restaurant. Additionally, food and beverages served must be safe for consumption. This duty extends to ensuring that drinks are free from contamination.
The presence of a decomposed worm in a sealed wine bottle suggests a serious failure in food safety standards. While Meera blames Murphy Wines, she still had a duty to ensure the safety of products served to customers (Grant v Australian Knitting Mills (1936)).
Failing to inspect or properly manage food safety constitutes a breach.
Jerry suffered nausea, stomach pain, and required medical treatment. The contaminated wine directly caused his injuries, satisfying causation under March v Stramare (1991).
Meera may argue that Murphy Wines was responsible. However, this does not absolve Meera of liability to Jerry. She may seek contribution later but remains liable to the customer.
As with Samy, the exclusion clause is unlikely to protect Meera from liability for personal injury.
(4 marks)
Therefore, Jerry is unlikely to recover damages for the lost government contract.
A. Have you included in-text referencing? Yes
B. Have you included a reference list? Yes
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