Tort Law Essay: Negligence And Vicarious Liability Analysis.

The Duty of Care in Negligence Cases

Harry and Will are employees of Australia Post at a mail sorting centre in suburban Sydney. A few weeks ago, they noticed a large bulging parcel that had arrived while they were sorting the mail.  Suspecting that it might contain something dangerous or illegal, they placed it in an unlocked cupboard and notified the police.

Unknown to both Harry and Will, the parcel contained a number of live snakes that were being transported illegally.  Before the police arrived, the snakes escaped from the parcel and found their way onto the street where they were seen by a number of people.

Meghan, a pedestrian, was so distressed when she saw the snakes that she suffered a heart attack.

Catherine was bitten when she tried to retrieve one of the snakes.  She was rushed to the nearest hospital where a doctor administered a drug that was not effective against the snake venom.  Catherine has been severely affected by the venom and can no longer walk.  Had she been given the correct treatment she would have fully recovered.

Meghan and Catherine have approached you for advice as to who they can sue in these circumstances and the likelihood of success if they sue in the tort of negligence.  Advise the parties.

Pablo was a young man who had suffered extensive injuries in a motor vehicle accident and was confined to a wheelchair.  He had sued the driver of the car responsible for his accident and was awarded $3.2 million by way of damages.  Pablo’s parents, Edvard and Frida, had no business experience, both having worked in cleaning jobs since arriving in Australia in 1989.  Their English was competent for everyday needs but not adequate for complex matters.  All three relied heavily on advice from Caveat, their solicitor, whom they asked to help them with investment advice.

Caveat suggested that they consult BNQ, a financial institution in suburban Sydney, which offered a service advising clients about investment opportunities and possible savings and investment plans. When the parents attended the first appointment they met Merlin, a young financial adviser who took all details of their circumstances and then proposed a range of investments, principally in property which could earn income plus a capital gain. He offered to organise flights for them to inspect the properties, which were in northern New South Wales.  He said it was impossible to recommend properties within Sydney, as rental prospects were quite poor.

The parents were flown to a university town in northern New South Wales and shown several blocks of units which Merlin described as fully let to students during the year and to overseas visitors during the summer vacations.  Merlin also offered to organise conveyancing services at low cost through the estate agents.  Merlin suggested that it would be better not to discuss all details of the investment with Caveat as many solicitors were jealous of cut-price conveyancers who undercut their fees.  

The parents decided to buy two units. The estate agents sent all documents to them in Sydney, and they and Pablo signed them.  Several months later the family had not received any rents.  Whenever they tried to contact Merlin at BNQ he was unavailable or did not return their calls.  When the parents phoned the estate agents they said the flats were mostly untenanted as there had been a downturn in the number of overseas students at the university, and local students couldn’t afford to live off campus.

The family contacted BNQ but was told Merlin no longer worked there, and BNQ had no interest in them, particularly as Merlin was not authorised to be promoting investments in real estate.  

Analyse this situation, advising the family of all reasonable legal arguments as to whether a duty of care was owed to them and if so by whom.  Explain who might be held liable.  

The involved issue in the case is to check that whether Meghan and Catherine, two of the claimant so the case can bring an action for negligence under tort law and what is the possibility of their success.

Negligence is one of the aspects of Tort Law. As the name implies it reflects a situation where a person does not perform his/her duty with due care (Cohen, 2009). What is the duty of care is important to know? The duty of care is a liability of a person to behave as a responsible and reasonable person. But, what if a person fails to perform the same? In such a scenario it becomes the responsibility of the guilty person to pay the damages to the victim party. Although in addition to the existence of a duty of care and breach thereof, some other conditions are also need to be there in the case of negligience. These conditions have well defined in the case of Donoghue v Stevenson [1932] AC 562. According to the decisions given in the case of this case, following are the conditions that need to be there to bring an action under negligence area of Tort Law

1. There must be a duty of care that a defendant must perform.
2. The defendant must breach the duty of care.
3. There must be a loss to claimant cause of negligence of the defendant.
4. Such loss/damage must not be too remote (Findlaw, 2018).

Losses: - This is to mention here that loss happened to a claimant can be in any form. A victim under negligence can suffer either from personal injury or economic loss or psychiatric injury. As per the decision given in the case of Re Polemis & Furness Withy & Company Ltd. [1921] 3 KB 560 such losses must be a direct result of the negligence of the defendant.

Vicarious liability:- This is also an important aspect of Tort Law. According to this term, an employer is a principal of it is an employee and therefore an agency relationship exists there in between employer an employee (ACAS, 2018). As in agency, a principal is responsible for the acts of his/her agent, similarly, in an employment; an employer is liable for the deeds of his/her employee. The mandatory thing to know here is that an employer is only responsible for those act that his/her employee does in the regular and ordinary course of business. This is the reason that whenever a person commits a tort whiles his/her job, his/her employer will be held liable for the same under the Vicarious Liability rule.

In the studied case, two people named Harry and Will were employed in Australia Post. This person was basically employed at a mail sorting center where they were doing the act of sorting the mails. One day when they were doing their regular duty, they have found a big parcel. They both were doubtful about the same and therefore did not open the same. Further, they have put this big box in an unlocked cupboard and invited police for the inquiry. The subjective box consisted of live snakes. Because the cupboard was not locked, the snakes came out of the box and started running on the streets. As the area was opened, Meghan one of the pedestrian suffered a heart attack by seeing snakes on the road.

Application of the Duty of Care in this Case

Apart from Meghan, Catherine is another victim in this case. She was bitten by one of the snakes. When she went to the doctor, he has not provided the efficient treatment of Catherine. Cause of such inefficient treatment, Catherine did not remain able to walk further. By looking after the pre-requisites set out under the case of Donoghue v Stevenson , this is to say that both Harry and Will owed a standard of care. As the nature of their work involved a certain risk and they were also doubtful about the safety of the parcel, it was their responsibility to place the box in a locked cupboard. They can review the harmful consequences that were expected to occur in case of placing the box in an opened cupboard. They have behaved negligently and not perform their duty of care. Two of the pre-requisites are satisfied till. Further, both of the victims i.e. Meghan and Catherine have suffered from a physical injury. Meghan got a heart attack and Catherine became permanently incapable in walking. If review the forces behind these injuries, the only reason was negligence of Harry and will.

Applying the rules of vicarious liability, the employer of Harry and Will i.e. Australian Post is also liable for the negligence as both of these people were acting on behalf of Austrian Post.

Catherine can also bring an action against the doctor who did not diagnose well because the doctor also owed the duty of care towards Catherine and failed to perform the same. If Catherine had provided proper treatment, she would be fully recovered.

Conclusion

Harry and Will hold the duty of care. They have breached the duty. Cause of such breach two of the people out of public named Meghan and Catherine suffered from a physical injury loss. Because of application of vicarious Liability rule, Austrian post will also be held responsible for the negligence of Harry and Will, as both these people were performing their duty according to the ordinary nature of the business. The doctor also owed a duty of care but only for Catherine and can be held liable for the negligence.

The issue is to inspect that whether any standard of care was there in the case. If yes, then who owed such duty and in respect to whom. Further, this is also to check that who can be held responsible in this case.

Tort is a subject that is all about duty if care. Until unless there is a no duty of care, there will be no question of Tort. the first question is that what is the duty of care. In reply to the question, this is to say that duty of care is a situation where one needs to behave responsibly and responsibility in respect to other. Now, the other issue is that where and when such duty of care does exist. This is to answer as many of the situations and relationships are defined under Tort law, where it is assumed that one person owes a duty of care in respect to another person. Some of these relationships are hereunder

• Solicitor-Client (Proneg.co.uk, 2018)
• Doctor-patient
• Parent-Children

Vicarious Liability and Employers

Apart from the defined relationships, where a person can come to know that duty of care exists or not. The decision and facts of the case Caparo Industries Plc v Dickman [1990] 2 AC 605 is significant here. It was decided in the case that what are the situations where the duty of care exists (Cleaver Fulton Rankin, 2016).

According to the decision given in this case, the following are the circumstance:-

1. The defendant must be in a situation that he/she reasonably foresee the harm.
2. The defendant and claimant must be in a proximate relationship.
3. The imposition of duty must be reasonable, just and fair according to the circumstances of the case and parties (E-law Resources, 2018).

 If all the above three conditions get satisfied in a case, then this is to assume that a duty of care exists. An employer will be held liable for the negligent acts and deed of his/her employee under the vicarious liability rule.

In the given case, not all three family members were capable enough to enter into a business transaction. The young member of the family was in a wheelchair and his parents were not so much well versed in English. Further, they were engaged in the work of cleaning and had no relations with business. Their solicitor Caveat refereed the couple to a financial institution named as BNQ. One of the employees of BNQ Merlin, a financial advisor has provided wrong advice to the couple. Applying the provisions of Caparo Industries Plc v Dickman, Merlin owed a duty of care towards the couple being a financial advisor he might be aware with the consequences of transactions in which the couple has entered on the basis of advice of Merlin.  A proximate relation was also there between the couple and Merlin as he was acting in the capacity of their financial, advisor. At last duty of care can be imposed in such circumstance because it was the liability of Merlin to provide the suitable advise to couple as the couple did not know anything about business transactions as they were completely relying upon Merlin.

Further BNQ will also be liable for the negligent of it is employee Merlin regardless of the fact that Merlin has left the organization.

Conclusion

In conclusion of the issue, this to say that yes, the duty of care was there. It was the responsibility of Merlin to provide suitable advice to the couple and being a financial advisor the same was aware of every fact yet behaved negligently. In addition to Merlin, BNQ financial institution is also liable as Merlin was acting in the capacity of an employee of this firm.

References

ACAS, (2018) Understanding what vicarious liability means for employers.[online] Available from: https://www.acas.org.uk/index.aspx?articleid=3715 [Accessed on 09/09/2018] 

Caparo Industries Plc v Dickman [1990] 2 AC 605

Cleaver Fulton Rankin. (2016) The Tort of Negligence – Establishing a Duty of Care. [online] Available from: https://www.cfrlaw.co.uk/article/2806/ [Accessed on 09/09/2018] 

Cohen, T., H. (2009) Tort Bench and Jury Trials in State Courts (2005). US: DIANE Publishing,

Donoghue v Stevenson [1932] AC 562
E-law Resources, (2018) Negligence - duty of care. [online] Available from: https://www.e-lawresources.co.uk/Duty-of-care.php [Accessed on 09/09/2018]

Findlaw. (2018). Elements of a Negligence Case. [online] Available from: https://injury.findlaw.com/accident-injury-law/elements-of-a-negligence-case.html [Accessed on 09/09/2018]

Proneg.co.uk. (2018) What is a 'Duty of Care'? - Professional Negligence Definition.[online] Available from: https://www.proneg.co.uk/professional-negligence/duty-of-care [Accessed on 09/09/2018] 

Re Polemis & Furness Withy & Company Ltd. [1921] 3 KB 560