READ THE FOLLOWING CASE STUDY

Tony is a chef and proprietor of a restaurant called ‘Taste of Italy'. Tony's pasta sauces are highly acclaimed and his restaurant is always busy. Max, a real estate agent, often eats at Tony's restaurant, where he also entertains his clients. To celebrate a recent successful deal in which he earned a good commission, Max invited his client, Joe, a builder, to have dinner with him at Taste of Italy. Max insisted on paying for the dinner. He went up to the counter and ordered a ham and cheese pizza for himself and a plate of pasta for Joe. Max also purchased a bottle of expensive champagne to toast the sale of Joe's property.

Tony personally brought their meals to the table and stopped for a chat. After a brief conversation about business, family and the weather he left Max and Joe to enjoy their meals. The champagne went down well and the meals were delicious. It was a wonderful occasion until something unexpected occurred!!! As Joe chewed and swallowed what he believed to be part of a black olive the bitter taste alerted him to something unusual on his plate. Upon closer examination it was revealed to be part of an insect, a cockroach in fact, and that he had already eaten most of it. He pushed back his chair and ran to the bathroom where he was violently ill for some time. He was eventually taken to hospital by ambulance where he remained for a week recovering from a severe case of food
poisoning.

Tony quickly learned that the tomato sauce he had used in the pasta that day was obviously contaminated by more than one cockroach. The sauce had been obtained from Presto Products, manufacturers, in sealed plastic tubs. Obviously the insects were already in the container before it was filled with the sauce. Since pasta sauces often contain black olives Tony assumed that the particles in the sauce he was using in his cooking were bits of olive.

Joe incurred medical expenses and was unable to travel to Sydney to attend the Australian Builders' Conference held in the week he spent recovering in hospital. Since he could not get a refund for accommodation costs he forfeited $1,000. In addition, Joe has now developed an eating disorder which his counsellor attributes to the trauma of the food poisoning experience. He will be required to attend ongoing counselling sessions and needs to take a further 3 months break from his building business.

Joe is contemplating taking legal action for his loss against Taste of Italy and Presto Products and has come to you for advice.

Question 1: Advise Joe against whom he should take legal action for his loss?

Question 2: Is the action that Joe is considering taking described as civil or criminal?

What cause of action will Joe take?

Who is the plaintiff and who is the defendant?

Question 3: List the elements of the cause of action that must be proved by Joe in order to succeed in his action.

Question 4: Which earlier decision could be used as a precedent for Joe's case?

What was the ratio decidendi of that case.

Question 5: What remedy is Joe seeking from a sucessful action against the defendant?