Readers may have heard of the recent report of an Adelaide woman suing McDonalds over the spillage of a cup of coffee which is alleged to have caused severe burns. It sounds similar to the US case from two decades ago in which an elderly lady pursued a similar claim, resulting in a significant damages award. [An interesting analysis of the facts of that case can be found at www.lectlaw.com/files/cur78.htm suggesting that the public's understanding of the case may not have been entirely accurate].
It begs the question: what are we in Australia to make of such claims and what approach should we be taking here to allocate risk consistently and fairly?
It is tempting to conclude that, as a society, we are becoming increasingly comfortable with the idea of shifting blame to others and increasingly less willing to assume that risks are ours alone (see for example Ashley Crisp's article here).
Occupational Health and Safety is an illustration of how risk awareness is now greater than ever, with breaches prominent in the headlines and employers commonly held accountable for failing to assess and respond to risks in the workplace.
From a resources point of view, it can be argued that employers (and service providers) are generally in a better overall position to address health and safety issues. In practice, the responsibility is often shared with the employee, which makes perfect sense where the employer relies on its employees for information. If we simply allocate responsibility to the party with the best resources, it quickly becomes an argument for strict liability, with the consumer invariably the least well-resourced.
However, the overall cost to society needs to be taken into account as well as the incentive to guard ourselves, where reasonable to do so, against risk. As ever, it is a question of finely balancing competing needs and interests.
Where does this leave the latest McDonald's case? In this seemingly David v Goliath contest, it's tempting to take sides but without the full facts, and without speculating on the arguments, we must rely on the wisdom of the judiciary to determine the matter. The beauty of the common law system is that the facts, issues, needs and competing interests are all considered on a case by case basis in order to reach a fair, balanced and accountable outcome. Thankfully, we are still some way from a "fast food" justice system.
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