Australian business law

            In the case at hand, it is clear that a certain liability exists on the part of Fine Follicles Ltd for the injury that was caused to Nadia.  In order to arrive at a better understanding of the issue and a resolution of such, it is important to first provide a brief discussion on the legal issues of the case.

The basic rule in Tort Law is that a person who by act or omission causes damage to another is liable to the offended for damages (Weiss, 2005).  The principle involved in negligence actions alleging injury from unsafe substances or other tortuous acts is similar to this (Weiss, 2005).  Under the principle of Res Ipsa Loqitur, which literally means the thing speaks for itself, the presumption of the negligence of the plaintiff arises when it has been shown that injury has been caused by the toxic substances or negligent acts.  There is no burden on the part of the injured party to show that it was the negligence of the plaintiff that caused the injury since such is already presumed by the occurrence of the injury (Weiss, 2005).  This makes it more difficult for plaintiffs because the only defense in these cases is by showing that there was no negligence and that the incident causing the injury was one that was caused by force majeure or unforeseen and inevitable circumstances.  In this case, it can be reasonably argued that a person, who can establish a direct and logical link between the food in the restaurant and the succeeding illness, should be able to recover from the owner by tort (Bagley and Savage, 2006).  In the cases that have been mentioned, there is no showing by any of the plaintiffs that there is an “unreasonable danger” or “gross negligence” that constitutes a violation of a person’s rights thus causing injury (Bagley and Savage, 2006).

Another legal theory that must be properly applied in the analysis of these cases is the concept of contributory negligence which covers the responsibility of the complainant for the consequences of his or her actions.  In several cases of the Supreme Court, it has been shown that when the complainant is shown to be equally liable for the resulting injury the award of damages is equitably reduced.

The principle of law that must be remembered in all of these cases is that when resort can be made to settle the controversy amicably, such must be done.  All the frivolous lawsuits that are filed not only clog up the dockets of courts but also waste valuable resources and time that can be used to settle more important issues (Bagley and Savage, 2006).  Cases such as these not only prevent other individuals from protecting their rights but also encourage the filing of more baseless suits.

            In determining the liability of Fine Follicles Ltd for the injuries that were caused to Nadia, it is important to establish the causation between the injury caused and the alleged negligent acts of the Fine Follicles Ltd employees.  Based on the foregoing, it is clear that the employee of Fine Follicles Ltd was clearly negligent in cutting the hair of Nadia.  The test for Duty of Care requires that a reasonable person exercise the care that is necessary to prevent accident or injury.

            An examination of the facts reveals that the implement that was used was a pair of scissors.  There is always a certain amount of danger to be expected from haircutting because of the nature of the business.  The sharp implements and tools that are used on sensitive parts and particularly vulnerable parts of one’s body requires a higher standard of care.  The negligent act of the hair stylist in not paying attention and instead chatting to another person shows that there was no care at all that was exercised and as such it fails to comply with the Duty of Care rule.  As the case of Levi v Colgate-Palmolive Pty Ltd (1941)] shows, there is a degree of care that is required in certain acts especially when dealing with people who have an “abnormal susceptibility.”  Therefore, under this principle, Nadia is entitled to recover for damages.  Another rule that is applied in this case is the Contributory Negligence of Nadia for the injuries that were caused.  As shown in the case, Nadia informed the hair stylists that she had a very sensitive scalp and was allergic to animal fat.  This is similar to the case of March v Stramare (1991) 171 CLR 506 where complainant was found to be negligent as well, contributing to the gravity of the injuries that were sustained.  As lain down in Wyong Shire Council v Shirt (1980) 146 CLR 40, the test of reasonableness dictates that prior warning would be sufficient to alert the hair stylist.  Given that the hair stylist had ignored Nadia’s prior instructions, he or she can also be held liable fully.

            It must be pointed out, however, that there will be a difference if animal fat is an integral component in all shampoos that are used.  The reason for this is that the request of Nadia would then become unreasonable and arguably impossible to carry out.  This would mean that if Nadia allowed her scalp to be shampooed there would be a degree of negligence on her part that could possibly absolve Fine Follicles Ltd (March v Stramare (1991) 171 CLR 506).

            The presence of the autoimmune disease that made the injury to the ear worse is not necessarily a factor in contributory negligence if it is shown that the hair stylist was grossly negligent in his or her actions.  This is different of course from the concept of voluntary assumption of risk as decided in the case of Moore v Woodforth[2003] NSWCA 9.  As previously established, the hair stylist exercised no degree of care whatsoever even though the chance of injury to the person of Nadia was high.  As such, Fine Follicles Ltd must still be held liable for all the complications that are caused because of the principle that if the injury is caused then all complications arising out of such without the intervention of the injured party are still the liability of the company.

The reasonable causation and link between the injuries that were inflicted on Nadia would show that Fine Follicles Ltd is liable not only for the initial injuries but any complications that may have risen after the incident (The Wagon Mound No 1 [1961] and The Wagon Mound No 2 [1966]]).  There is no contributory negligence in this case because it does not show that Nadia was negligent in any of the acts and did not contribute to the complications that arose thereafter.

Bibliography:

Bagley, C.E. & Savage, D.W. (2006). Managers and the legal environment: Strategies for the 21st century (5th ed.). Mason, OH: Southwestern-Cengage Learning. Chapter 9, pp. 295- 329 and Chapter 10, pp.335-362.

Linden, Allen M (2002). “The American Influence on Canadian Tort Law,” 50 UCLA L. Rev. 407, 414

Swanton, J., (1981) ‘Contributory Negligence as a Defence to actions for Breach of Contract’, (1981) 55 Australian Law Journal 278 at 279-80

Weiss, Stewart J.  (2005); Missouri V. Seibert: Two-Stepping towards the Apocalypse Journal of Criminal Law and Criminology, Vol. 95, 2005

Cases Cited:

Donoghue (or M’Alister) v Stevenson ([1932] A.C. 562, 1932 S.C. (H.L.) 31, [1932] )

Levi v Colgate-Palmolive Pty Ltd (1941) 41 SR (NSW) 48

Wyong Shire Council v Shirt (1980) 146 CLR 40

March v. E & MH Stramare Pty Limited (1991)

Chapel v Hart (1998) 156 CLR 157

March v Stramare (1991) 171 CLR 506

Moore v Woodforth[2003] NSWCA 9