In The Best Weddings (INC) Appelute In The Australian

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IN THE SUPREME COURT OF WESTERN AUSTRALIA

BETWEEN

THE WEST COAST BEAGLES (INC.) Appellant

And

BETTY BOOK Respondent

The Facts:

1. An AFL football team, the West Coast Beagles, decided to establish and grow a commercial manufacturing and processing operation. They began manufacturing and distributing a range of products, including a heavily marketed energy drink, named the Rocket.

2. The Rocket was a new product promoted by the Beagles footballers including Chris Bolton, Jude Judd and Ben Kerr, their leading players.

3. Betty Book was an ardent Beagles fan who was a long term member of the club. On the 1st April, 2013 she met with her friend, Mr Joshua Worm. They met at the Beagle Inn which is run and owned by the West Coast Beagles at their Club and Training Facilities in the suburb of Success in Perth, Western Australia. Mr Worm and Miss Book had been close friends over a number of years. Mr Worm ordered and paid for their meals which consisted of garden salad with coffee for Worm and Garden Salad and a bottle of Rocket for Book.

4. Their lunchtime conversation was lively and when Worm noticed that Book’s cup was empty he poured some more Rocket from the bottle into Book’s cup.

5. At first Book was not paying close attention, rather eating her garden salad and locked in animated conversation with Worm. When Book looked down she saw a snail floating in her cup. At first it still appeared to be alive and wriggling but the Rocket drink quickly killed it.

6. Miss Book subsequently felt sick and succumbed to gastro-enteritis. She was also deeply distressed and disturbed by this event.

7. The plastic container in which the Rocket drink came had a large amount of advertising material by way of labels on it. The contents of the drink were partially visible but there was heavy labelling advertising the virtues of the drink and the West Coast Beagles.

8. Miss Book also alleged that her injuries so weakened her that she was unable to contest the Australian Track and Field Championships and, as a consequence, she was unable to represent Australia in the javelin at the World Championships and so lost lucrative sporting promotional contracts.

9. On the DUTY OF CARE issue in this negligence action Rasputin J opined that “In my opinion, the duty of care owed by the defendant relevantly extended to preventing injury to the plaintiff from the manufacture and consumption of their product which, through its packaging, provided no reasonable means for intermediate inspection. This case is especially close factually to the seminal case of Donoghue v Stevenson [1932] AC 562; [1932] All ER Rep 1 (House of Lords). In all the circumstances present here, a duty of care was owed to prevent reasonably foreseeable harm such as that which occurred. The events were deplorable and speak for themselves. A duty of care is clearly owed.”

10. BREACH FINDING: Rasputin J came to the conclusion that (i) there was a foreseeable risk of harm to the consumer here, (ii) the risk of harm was not insignificant, (iii) the probability that harm would occur was high, and (iv) there was little social utility involved in protecting footballing teams that enter the manufacturing business from harm engendered by their enterprise. Therefore, there was breach of duty of care in negligence.

11. CAUSATION FINDING: The primary Judge, Rasputin J, also found that the effective cause of the injury was relatable to the manufacture of the product, the Rocket sports drink, and that “scope of liability” considerations were sufficient to extend the duty of care to cover these circumstances. While His Honour expressed some concern over the evidence that the snail still appeared to be alive when it was first seen, he argued that there was sufficient evidence to sustain the existence of causation in this case. Rasputin J said that “but for the presence
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