My relationship with torts remained tumultuous. Although there had been moments where I considered dumping my torts textbook, now known as Law Baby, on the steps of the law library, there were other times when I found the subject fascinating.
In the same week that our lecturer introduced us to Zanner v Zanner, she also gave us a case called Strong v Woolworths Ltd; the connection between the two was the ‘but for’ test.
It’s commonly used in cases of negligence. In dealing with negligence there are three things you need to prove. First, does one person (the defendant) owe the other (the plaintiff) a duty of care? Second, is there a legally determined standard of care? And, finally, was there damage caused as a result of the negligence?
Sounds simple, I know and it is, if the case if black and white. Perhaps an example would be useful.
Jenny is driving to pick up little Johnny from soccer training and receives a text from a friend about Johnny’s behavior at a recent party. His habit of licking icing off slices of cake and putting the slices back is beginning to create dramas with the other mothers. Jenny, so enraged that her friend dare talk ill of her little Johnny, replies while driving, misses the fact the light has turned red, goes through the intersection and runs into another car.
We already know that Jenny owes a duty to the other driver. We also know that there’s a legally determined standard of care – there are clear road rules about texting while driving and we’re obligated to drive in accordance with these to avoid hurting other road users. You may disagree with me, given how poorly Brisbaneites drive, but just head to India and you’ll see what I mean. There are levels of bad driving, Brisbane’s not great but it sure beats Bangalore in terms of the white-knuckle experience.
Like I said, it’s simple – when it’s black and white. But what happens if the other driver was my poor checkout operator from Aldi, who’d been given half a bottle of whisky to deal with his shock encounter with the crazed law student from earlier in the day? Desperate to get home and drink more, he speeds through the light, while inebriated and gets T-boned by Jenny. His new V6 Holden ute is a write-off. Poor Aldi boy, he’s not having a good day at all.
That’s where the ‘but for’ test comes in. Would Aldi boy have suffered harm ‘but for’ Jenny’s breach? The answer here is no. Alcohol and speed aside, the damage caused was the result of Jenny’s negligence.
Strong v Woolworths Ltd captured my attention because the case revolved around a hot chip. A woman on crutches was shopping at Big W around lunchtime when one of her crutches hit a cold greasy chip and she slipped, injuring herself. She sued them for negligence.
I know what you’re thinking – the same thing I did when I started studying negligence. Why can’t people just accept that, sometimes, bad things happen and get on with it? I remember working with a girl who sued the council after tripping over on a piece of uneven footpath and she broke her foot. My advice? Watch where you’re going, it’s a useful tool in avoiding life’s little mishaps.
That was in the era where suing people had become a bit of a trend. Luckily legislation stopped us from reaching anywhere near American-levels of suedom. Reluctant to set precedents that will open the floodgates, judges are very careful when making decisions. They have nifty tools like the ‘but for’ test. They are also required to give a ratio decidendi, It’s a Latin phrase and is basically the core reason for their decision.
I’d hope that my mad Latin skills would become a useful party trick but it turns out that using Latin in a non-legal setting just makes you a wanker. I also know, should I ever write for a girl’s magazine, that Learn Latin will not be included in a Top 10 list on how to impress boys.
In instances where the court feels a person deserves to be compensated but they’re wary of setting a precedent that will create chaos, each judge will give a different ratio decidendi, particularly in cases that heard by the High Court, which is where Strong v Woolworths Ltd had ended up.
The shopping centre where the chip slip took place had a regular cleaning procedure in place and floors were to be inspected every 15 to 20 minutes. Big W, however, did not have such a system. The questions to be considered by the High Court included:
- Did Woolworths not having a system in place cause the plaintiff’s injury?
- Would the plaintiff have suffered the harm ‘but for’ Woolworth’s breach?
The defendant argued that it was lunchtime and, as such, it was most likely the chip had been recently dropped on the ground. Long story short – even if there were a cleaning system in place, it wouldn’t have made any difference.
The High Court disagreed and their justification for doing so had far-reaching implications, well beyond the justice system:
The lecturer, about to bounce out of skin with excitement, quoted the High Court’s statement:
“There was no basis for concluding that chips are more likely to be eaten for lunch than for breakfast or as a snack during the course of the morning”
I almost fell out of my chair. Will has been a friend since forever. Laura, a more recent addition, was now a permanent fixture. They knew of each other but hadn’t really spent time together. A boozy weekend at the Gold Coast at the end of last year remedied that. It can be tricky introducing close friends from different circles; even though you have high hopes, sometimes it doesn’t go according to plan and you’re left in the role of intermediary. Luckily Laura and Will’s love of hot chips prevented me from having to take on this role.
An afternoon spent drinking wine on the deck of a Gold Coast apartment culminated in a trip to the local takeaway. I’m certain we burnt over a thousand calories while in search of the take away joint – Laura, determined it was in one direction and Will, equally determined it was in the other, led to us backtracking multiple times.
It gave us plenty of time to discuss what constituted the perfect chip and whether or not there was ever an instance where hot chips were not a permissible meal preference. The answer was no – day or night – hot chips are an acceptable option.
Will and Laura, so enamoured by hot chips, had concocted an iPhone app to ensure access to good quality hot chips was guaranteed. Certain the app would be a hit, we encouraged Will, an IT geek, to develop the app asap, make a shitload of money and keep us in a life of chip luxury. We’d quit our jobs, eat chips and then spend the rest of the day exercising so we didn’t get too fat.
The backing of the High Court would only seek to make our iPhone app even more popular and I couldn’t wait to update both Will and Laura. I added in the lecturer’s note to reference the High Court’s decision if you’re ever in the position where you need to justify eating hot chips whenever you want, took a screen shot and sent it via text message to both Will and Laura:
The lecturer continued, as did my conversation with Will and Laura:
We even managed to incorporate legal jargon, making us feel very professional…
…bordering on bullying towards the end.
Turns out studying torts does have its perks. For now.