Word Length: 2000 words excluding references
Task Weight: 40%.
Date Due: End of Week 12
Task Requirements: The ‘Case Scenario’ on the topic related to Torts, Negligence, Employment Law, Work Place Health and Safety.
CASE STUDY – Torts, Negligence, Employment Law, Hospitality, Work Place Health and Safety.
Roma and Mona are close friends living in St.Albans in Perth. Every day, they travel by public transport to Elizabeth Street to work in Central Library. During Easter break they decided to visit ‘Mama Mia’ Restaurant to enjoy delicious meals and drinks. They were impressed by the quality of food and drinks served by ‘Mama Mia’. On 19 June 2018, they invited their friends Charles and William, to join them for a 5 Course dinner.
While, they relished the delicious dishes served by Mama Mia, Roma and Mona, were busy sharing their happy moments with each other. Both Roma and Mona ordered for Chocolate Ice cream and Cream Soda. After consuming more than 75% of the drink [Cream Soda], Mona shrieked in fear and distress on finding a rotten, dark brown cockroach. Roma, who was seated beside Mona was also under shock and distress.
Charles and William, who were watching Mona and Roma were so upset that they called the Waiter, Sam who had served Mona and Roma. The Waiter immediately denied his responsibility and stated that, he was not aware of any cockroach in the drink, served to Mona. He also explained that he only serves, what is available in the Special Cream Soda opaque bottles. Hearing, this denial, they now called the Manager of ‘Mama Mia’, who also stated that, he was not responsible for the presence of rotten cockroach in the drink and explained that, his restaurant, ‘Mama Mia’ only serves drinks supplied by the manufacturer, Andrew.
Charles, William, Mona and Roma visit your office to seek your advice. In this scenario, you should address questions given below in order to provide advice to Charles, William, Mona and Roma. Please answer the following questions:
Is the Waiter, Sam an employee of ‘Mama Mia’? If so, who is his employer under the Employment Law? Has Sam breached any duty towards Roma and Mona? Does Sam have to pay any compensation to Roma and Mona?
Support your answer with cases, precedents, legal principles and legislation.
What are Mona’s rights against the Waiter Sam, against the Manager and against the Manufacturer, Andrew? Do Mona and Roma have any claims under the law of torts? Explain in detail.
Support your answer with cases, precedents, legal principles and legislation.
Has ‘Mama Mia’ breached the Work Place Health and Safety Laws? If so, who is liable for the breaches and what are the remedies available to Roma, Mona, Charles and William?
Note: please ensure that you address the relevant Case Studies (precedents), Legal Principles and Statutory Provisions.
REQUIREMENTS ( ESSAY OR REPORT FORMAT)
Your Essay or Report should be in the following format:
Use of Resources
You are required to use a range of legal resources in addition to the textbooks including at least Eight (8) Online Legal Resources; and One (1) Statute... as supporting evidence for the arguments, analysis and discussion of the given Assignment questions.
CRITERIA USED TO GRADE THIS TASK
See Separate Marking criteria and allocation
Assignment must be uploaded online via the Turnitin Drop Box and
Please email your assignment as an attachment to your Lecturer,
FEEDBACK AND RETURN OF WORK
Feedback and marks will be provided via the LMS within two weeks of submission
Case Study Analysis
In this report, negligence and tort case analysis have been made. This report has shown the breach of the liabilities and employer under the employment law. In addition to this, deep analysis of the case under the tort and breach of the employment law has also been discussed. This report revolve around the applicability’s of the tort and negligence law of the Mona, Roma, Charles and William which arise due to the negligence arise from the part of the hotel. This case analysis shows how Mona, Roma, Charles and William found the case at the part of the negligent and tort.
Mona, Roma, Charles and William went to a restaurant Mama Mia for dinner. Initially the quality of food attracted them all. Meanwhile, they were consuming the Cream Soda and when it was almost finished, Mona found a dark brown and rotten cockroach in the same. They initially approached the waiter and stated their concern. But the waiter denied his responsibility on the same and stated that he has nothing to do with the same.
The Mama Mia restaurant is operating in Perth. Sam is the waiter at the restaurant where the four friends went. Working in Mama Mia makes Sam an employee of that place. The same is stated as per the provisions of the Employment law. As per the case law of Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), it is held that the person who works under someone in lieu of payment is stated as the employee. The waiter Sam works in the restaurant against his salary, which makes him the employee (Moriya, Selden, & Simon, 2016).
As per the employment law, the person who gives work to others and pays them for the same is considered as the employer. He in other ways is the owner of the business. In the given case, the manager is not the employer, but the owner of the place. He has hired Sam to work at the restaurant against a decided salary (Tanwar, & Prasad, 2016).
As per generally accepted perceptions, a waiter is required to be nice and decent while dealing with the customers. He is liable to serve the customers in the best possible manner. He just serves the food that is being prepared in the kitchen. They have nothing to do with the content of the edibles (Storey, 2018).
In the given case, the rotten cockroach found in the drink is not because of the fault of the waiter. The waiter just served the drink which has been received from the suppliers seal packed in the opaque bottles. The contents on the same were not known to him even. Mona and Roma called the waiter and expected him to compensate. But, given the circumstances, Sam has not breached any duty towards Mona and Roma. He was just serving the food and drink. He was not negligent. The same is evident by the fact that each of the four friends loved the quality of the food and drinks that were served initially. However, it could also be supported with the fact that the person does not fall under the negligent behaviour and he could take shield of that case.
The drink is directly served from the bottles taken from the manufacturer. After that the manager of the restaurant was called and the situation was explained to him. The manager again denied his duty and said the same. He also stated that the drink was only the one that was directly served from the bottles received from the supplier Andrew. As per the case, OKLAHOMA COCA-COLA BOTTLING CO. v. DILLARD (decided on 1st In case of CHASTAIN v. OKLAHOMA CITY 1953 OK 166 258 P.2d 635 208 Okla 604 it was held that October, 1953 by the Supreme Court of Oklahoma), if beverage is served in bottled form the consumers in the original and sealed form, i.e. in the manner it was received from the manufacturer, then the doctrine that applies in the condition is res ipsa loquitur. This doctrine makes the manufacturer liable because of his negligence (Plitt, & Plitt, 2017).
As per this doctrine and the stated case Sam is not liable to compensate Roma and Mona. There had been no negligence on part of the waiter. He was just indulged in the work of serving the drink in the manner it was received from the manufacturer (Bal, & Brenner, 2015).
Against the manufacturer
As per the case, OKLAHOMA COCA-COLA BOTTLING CO. v. DILLARD (decided on 1st October, 1953 by the Supreme Court of Oklahoma), when drinks or any beverage is served to the consumers in the original form in which the manufacturer supplies and on sealed basis, then the presence of any foreign particle or substance in the same is considered as the negligence of the manufacturer. The restaurant serving the same is not considered to be negligent. The doctrine of res ipsa loquitur applies in this case and considers the prima facie negligence of the bottler or the manufacturer (König, Graf-Vlachy, Bundy, & Little, 2018).
Hence, Roma and Mona have a complete right to sue the manufacturer Andrew. The drink that was served is completely unfit for human consumption. A case can be filed in the consumer courts. Mona is the plaintiff here and the manufacturer is the defendant. Further, if any injuries are caused to them on the consumption of the beverage, the case could even be filed for the injuries caused due to consumption of drink inappropriate or unfit for human consumption.
Against the waiter and manager
As per the law of Torts, the probable defendants can use the defence of inevitable accident. As per this defense if any injury is caused to the plaintiff in a circumstance, but the event is the one that cannot be foreseen or prevented or avoided by the defendant even when he applied reasonable care, then the defendant cannot be blamed. Here, reasonable care means that the accident is certain to happen, irrespective of any control that the defendant might have applied (Goldberg, 2018).
In the given case, the manager would have been responsible if the drink had been served in the kitchen premises and the same were unhygienic and the traces of cockroaches were present. The waiter on the other hand would have been responsible if he has not opened the seal in front of the Roma and Mona. Both the manager and waiter are unaware of the presence of any cockroach or any other foreign substance in the drink. Applying this defence, the waiter and the manager are prevented from any claim.
Claims that Roma and Mona have
The first and direct claim that Mona and Roma have is against the manufacturer Andrew. As the drink supplied by him has lacked the quality that makes it fit for humans to consume. A rotten cockroach might have made it highly poisonous even. Roma and Mona could completely knock the legal doors to sue the manufacturer for the same. Claim can be filed by using the NEGLIGENCE case of Torts. As per the case of BALTIMORE AND OHIO R.R. V. GOODMAN, 275 U.S. 66 (1927), it was held that the manufacturer Andrew is the defendant, and Mona is the plaintiff. However, this case is applicable to claim because: the manufacturer owed a duty of care against Mona and the same is breached by the manufacturer. Although injury is not yet evident up to the time for which case is reflected, but the same could have happened. Hence, the claim for negligence can be filed against the manufacturer (Epstein, & Sharkey, 2016).
Although the manager and the waiter are under no claim as such because for the sealed bottle that has directly served in its original form to Mona, they owed no duty of care. As there was no duty in first place, there does not come any breach. As evident, there is no claim under the law of Tort. But, being a hospitality chain, the restaurant is obliged to serve the customers with a good and pleasant experience. Such incident as mentioned above has certainly ruined the same. Although the event or incident cannot be forgotten but Mona and her friends could be compensated by extending a generous apology. Along with, their 5 course meal should either be made completely free or a partial charge must be charged. This would somehow compensate Mona, Roma, Charles and Williams against their bad experience.
Any unhygienic environment causes risk to the health and same must be tried to be eliminated (Ross, 2018).
In the given case, Mona ordered a drink and same had a rotten cockroach. This initially suggests that the restaurant had an unhygienic environment which led to the presence of cockroaches that spoilt the drink. But the actual situation is not the one that is assumed. This case may also lead the case which is related to misrepresentation to clients by the hotel. Mama Mia’s waiter Sam just served a drink that was acquired directly from the manufacturer and was sealed until the same was served. However, the case was confused with the fact that drink was purchased from the manufacture and hotel has nothing to do with that. The restaurant was not involved in the processing of the drink any further, once it was received. The presence of cockroach in the same is not because of the workplace hygiene of Mama Mia. The food served at the restaurant depicts the hygiene of Mama Mia. The same was of good quality (Shea, De Cieri, Donohue, Cooper, & Sheehan, 2016).
Considering all the facts, it seems that Mama Mia has not breached the workplace health and Safety Laws. It has just served the drink exactly in the manner it was received. Considering that Mama Mia has not breached the Workplace health and safety laws, the manufacturer but not Mama Mia is liable. No case for breaching the same could be held against the restaurant, or its owner, or the waiter, or the manager.
After assessing the case, it could be inferred that Mama Mia has not breached the workplace health and safety laws and he has nothing to violate with applicable laws under the contract law. In this case, it was held that Mama Mia will not be held liable for the negligent and violation of the employment law but hotel and restaurant, or its owner, or the waiter, or the manager will be liable to compensate client for his loss.