Case Study – a Note on the Cuban Cigar Industry

Whether our club owe a duty of care to the customers?

The principle that reasonable foreseeability of injury is necessary in any finding that a duty of care exists, just as in case ‘Donoghue v Stevenson’. The manufacturer Stevenson had actually failed to exercise reasonable care and his lack of care had caused Donoghue suffered shock and gastroenteritis. And the case Sennett v Hancock and Peters, a repair was liable to a pedestrian who was injured when a wheel came off a vehicle repaired by the defendant. The manufacturer who sold a product owed a duty to consumers of the products to take reasonable care. Because it was reasonably foreseeable that if such care was not taken, the consumer could be injured.

It was reasonable to foresee that sharks are very dangerous. If manufacture fail to build barriers around the lake, the crowds may fall into the lake and would be eaten by sharks.

The company would probably breach its duty of care to customers who may be in danger.

Therefore, the company owe a duty of care to the consumers.

Whether the club breach the standard of care owed to consumers?

According to Australian Law, a person is not negligent if the risk is foreseeable and significant. And a reasonable person would take precautions. As Mason J in Wyong Shire Council v Shirt people should take reasonable care for their won safety. It is a question of fact, whether the risk is obvious or not, not precedent and will depend upon the circumstances.

The risk is very significant because the sharks may attack people and drag people into the water just as what they did previous to the staff. And a reasonable people would take precautions, but what the club did is only placing a warning sign. No barriers were built around the lake since children would be very naughty.

As all the things mentioned above, the club breach the standard of care to the consumers.

Whether the losses caused by the defendant’s negligence and whether the losses reasonably foreseeable?

To obtain damages, the plaintiff must establish that the negligence caused the damage. In the case ’Perre v Apand P/L (1999)’(p75) The farmer’s potato crop unable to be sold because of neighbor’s infected crops, and the court held manufacturer liable to framer.

But for the carelessness of our service and the danger brought by the sharks, children and our guests would get injury. Thus they may get some losses.

The damage must not only have been a direct consequence of the negligent act, but must also have been reasonably foreseeable. In the case ‘Overseas Tankship (UK) Ltd V The Miller Steamship Co Pty Ltd’(p79). It was reasonably foreseeable to a ship’s engineer that the oil might catch fire, so the defendant was held liable in damages. Due to the dangerous sharks, the children may get hurt directly, and this not remote. Therefore, the company would cause the losses to customers by the negligence and the losses are reasonably foreseeable.

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