LAW2447 – Commercial Law Asm 1


This case note is an analysis of the “Jenny Korda v Aldi Foods Pty Limited and Brice Australia (NSW} Pty Limited” case. The case was judged by judge Magistrate Theakston at the Magistrates Court of the Australian Capital Territory on the 2nd of November 2016. A discussion will be established within this case note about the legal issues followed by a set of legal rules applied by the court in decision making. Finally, a summary will be drawn at the end to deliver a final decision of the case.


Identification of the legal issue(s)

In this case, the plaintiff is a 64 years old Australian lady named Jenny Korda and the defendant is Aldi Foods pty Limited, a German supermarket chain. On the 19th December 2013, Korda was casually going shopping at Canberra Centre Aldi Store. The incident happened as she was passing through the metal swinging gates with a trolley, unfortunately, the gates were unable to open automatically as they used to. Consequently, the trolley collided with the metal gates; as it was stopped all the sudden, the plaintiff hit her left shin against the shopping cart. The incident left Korda with significant pain and on-going infection that had to involve many surgeries.



Duty of Care (DOC)

The court determined the relationship between Aldi Foods pty Limited (the defendant) and Jenny Korda (the plaintiff) as occupiers and entrants of premises. Which can be said that the defendant has to ensure the protection of the plaintiff and others do not suffer harms because of the premises’ condition, according to the rules provided in by s 168: Australian Safeway Stores Pty Ltd v Za/ozna (1987) 162 CLR 479 at 488; Brozinic v ISS Facility Services Australia Ltd[2014] ACTSC 8 (7 February 2014) (Brozinic). As the relationship falls within the established categories of DOC, the defendant therefore owed the plaintiff a duty of care for the incident; agreed with the court’s decision.


Breach Duty of Care 

To consider whether the defendant would act as a reasonable person would have done in the circumstance, the judge has taken into account three factors: the probability of harm, the seriousness of harm and the cost of taking precautions. 

Even though there were claims that the gates sometimes did not open or shoppers being unable to exit and kids hurted playing with the gates, the judge asserted that the possibility of injury is low due to the absence of evidence as well as proves in terms of trolley structure and human’s anatomy which may increase the probability. The same for the seriousness of the injury, it is convincing for the judge to claim that such significant damage would not happen at walking speed; even in the worst scenario, application of ice packs would be enough. It can be said that the seriousness of harm in this case is insignificant. 


Keeping in mind of the previous incidents and times when the gates could not open, potential problems are foreseeable. The court applied the rules in Vairy v Wyong Shire Council (2005) 223 CLR 422 at 499 and 461-462; Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at 438 and it is agreeable for the judge to say that the occupier could have taken action beforehand rather than in hindsight. Considering the cost of precautions, the risk in this case could have been eliminated easily just by adding a precaution sign noting ‘Malfunctioning gates – mind your step when passing through’. In the same opinion with the court, it is a straightforward and cheap action that can be done without any burden. 


After looking at the elements above, the probability of harm and  the likely seriousness of harm are both low, the same for the cost of precautions and there is social utility of the conduct for reducing theft that is considered cost-effective which is understandable. Above all, it can be said that the defendant breached the duty of care to the plaintiff.


Causation & Contributory Negligence

Applied the ‘but for’ test (Yates v Jones 1990), if we return to the day of the accident and remove the defendant’s careless conduct, the plaintiff would not have suffered the injury. The gates were claimed to sometimes not open as usual in the past so if the sensor was fixed to be more sensitive in detecting moving objects, the elderly plaintiff could pass through the gates without harm. Therefore, the ‘but for’ test is satisfied, the defendant’s conduct caused the plaintiff to suffer harm. However, the information showed that Korda was distracted by the biscuits display and not paying attention while entering the supermarket through the gates. Korda’s careless act contributed to her injury, therefore, making contributory negligence. It is agreed for the judge to lower the plaintiff responsibility for the damage by 50% from her contributory negligence.  



In summary, it can be said that both the plaintiff and the defendant have to take the liability equally. However, the defendant’s negligence did cause the injury to the plaintiff and so, breached the duty of care to the plaintiff. 


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