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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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