One of the rules law students in Germany learn when commencing their studies is the rule of ‘culpa in contrahendo’. It basically means that whoever offers the conclusion of a contract is liable for any accident which occurs during the process even if no contract is later entered into. Usually lecturers refer to (actual) case of the pensioner who, while shopping at a big department store, slipped on a banana skin on the floor and broke her hip before she got to the counter and could pay for her groceries. There was no contract entered into as grandma had not paid for her groceries yet. The store was not liable in negligence as it had a cleaning roster in place, so the banana was just one of those things which could happen no matter how careful you are.
But the German court would not buy it (sic!) and ordered the store to pay for the damages under the intended, but not concluded grocery-purchase contract. Why? Because, the store invited customers to visit the store and shop and it was therefore only fair for the contractual rules to also apply even if no contract was later entered into. The rule was later extended to apply also to customers who had no intention of buying anything and has remained a corner stone of German civil liability law ever since.
And here we are in 2012 and the old case comes up again at Woolworth in Australia.
Here, we have a woman on crutches who fell on a greasy chip just outside Woolworth entrance and suffered a serious spinal injury. Woolworth, which didnt have a system in place to clean the area, argued that the plaintiff could not prove when the chip fell on the floor. Didnt help – the Court held that all the plaintiff needed to prove was that a proper system would have probably prevented the accident.
Of course, the case was decided as a negligence (tort) claim. It would be interesting to see whether the Court would have also imposed a contractual obligation if Woolworth had had a cleaning system in place at the time and did check the area just before the accident. Lets wait for the next banana skin on the floor.