Legal Opinion On Corporate Liability Of Wild Animals: Susan's Case

Issue

You are a newly graduated lawyer and have just gained a position at the law firm of Ejusdem & Generis. You were hired due to your outstanding article on corporate liability of wild animals based on the case of Shorten v Grafton District Golf course NSWCA 58. Your employer has just asked you to prepare a legal opinion for one of the firm’s clients, Susan.

A legal opinion is an essay based on the IRAC structure. It does not prosecute a position for one person. It is an evaluation of the merits of a case, based on balancing the law as it is applicable to both parties.

The facts of the problem are as follows:

Susan has a five-acre native bush block of land just outside Geelong in Victoria, Australia. She bought this as she likes being away from the crowded town and she wanted somewhere to keep her pet Bengal Tiger who she calls Benji. Susan uses Benji in her magic show and is a favourite at the local age care homes where Susan and Benji perform for free. Susan has all the correct permits to keep Benji. Benji was raised by Susan from a cub. Benji thinks that she is in fact a small domestic cat. Benji is very docile and would not hurt anyone or anything but has an unquenchable thirst for milk and has a desire to chase balls of string. Susan built a very strong compound to keep Benji in. She realises that although Benji is very safe, some people may not agree with her. One day Kim, a small child who lives next door, came to visit Benji. Kim plays with Benji all the time when Susan is there. On this day however, Susan was not at home. Kim knew where Susan kept the key for Benji’s compound. Kim unlocked and opened the door to Benji’s compound. Benji was just too strong for Kim and pushed past her looking for milk. Benji spotted Kim’s father, Cliff, marking out a new vegetable garden with a ball of string and went to chase the string. Cliff 5 was just climbing onto his mini-tractor with the ball of string and did not see Benji coming. Benji jumped onto the tractor to take the string from Cliff’s hand. Startled Cliff fell backward falling off the mini-tractor, knocking the gearshift into drive as he did so.

The uncontrolled tractor ran through his house shocking his wife Mary, who dropped a pan of cooking oil on to the cook top. This instantly caught fire and did considerable damage to the house. The tractor continued on its way through Cliff and Mary’s property, running through a chicken coop releasing all the chickens, until it fell into their swimming pool causing a great deal of damage to both the tractor and the pool. The chickens escaped and could not be located, as a result Cliff and Mary could no longer have fresh eggs.

Cliff and Mary now want to sue Susan for the damage to their house, mini-tractor, chicken coop, and pool, and for the loss of the chickens and eggs. Both Cliff and Mary also want to sue for mental shock of being attacked by Benji and the shock of the house fire.

Question: Using common law principles only and not using legislation, advise your employer of the merits of Cliff and Mary’s claim, any remedies that they may hope to achieve, and any defences that Susan may have. Be sure to use Australian legal authorities. This is a civil case. As this task is a legal opinion you are concerned only with the law and its application. It is not your role to look at jurisprudential issues, ethical or moral issues. 

The issue in this case study is whether Susan is liable to Cliff and Mary to pay them compensation for the loss suffered by them caused due to the release of Benji? If Susan is liable, then whether she can rely on any defences of negligence?

In situations where a party owed a duty of care towards another individual, then a suit for negligence can be filed in case the party failed to do something which a reasonable person would in the particular situation to avoid causing damages to the third party. The breach of duty due to which another party suffered a substantial loss can raise a liability of the person under the suit for negligence. The injury suffered by the party must be caused directly due to the negligent actions of the party. Moreover, the damages which are caused due to negligent actions of a party must not be too remote because damages can be claimed by the party on for those injuries which are foreseeable (Tuck 2013). Negligence is often considered as a difficult area of law because the court is required to analyse the elements of negligence in a particular case while providing its judgement. The evaluation of the facts and judgement of Donoghue v Stevenson (1932) AC 562 assist in understanding how a party can sue for a suit for negligence. In this case, Mrs Donoghue ordered a ginger beer in the café and suffered critical illness after drinking the beer. It was later found out that the beer has remains of a dead snail and after drinking them Mrs Donoghue become seriously ill. A suit for negligence was filed against the manufacturer of the ginger beer by Mrs Donoghue (Twigg-Flesner 2017). The judgement of the court was given in favour of Mrs Donoghue.

The court provided that the manufacturer owed a duty which was breached due to negligence and the illness suffered by Mrs Donoghue was the result of such negligence, thus, Mrs Donoghue can claim compensation from the manufacturer. The court provided that the first element is the presence of a duty of care. The neighbour test which established, in this case, is used by the court in order to determine whether a party owed a duty. The test evaluates the duty based on two elements; the first element is reasonable foresight or risks and the second element is proximity relationship (McArdle 2013). A party owes a duty of care in case the risks are foreseeable, and proximity exists in the relationship between the parties. Based on this test, the court provided that a manufacturer owes a duty of care towards customers while producing goods as given in the case of MacPherson v Buick Motor Co (1916) 217 NY 382. The duty must be breached by the party due to failure to do something in order to protect another party from an injury. Without breach of the duty of care by a party, the suit for negligence cannot be filed. While determining the duty of care, the court uses an objective test. The test focuses on identifying the fact that whether a reasonable standard of care is maintained by the party which a reasonable person would in the particular situation. In Paris v Stepney Borough Council (1950) UKHL 3 case, an employee becomes blind because safety goggles were not provided by the employer. The defendant argued that there is no legal obligation to provide the claimant with goggles (Greene 2017).

Rule

The court provided that the duty was breached because the seriousness of the harm was present and the risk was foreseeable as well. Thus, the defendant failed to ensure that the appropriate standard is maintained regarding the security of the employees due to which the claimant suffered a personal injury. Another example was given in Vaughan v Menlove (1837) 3 Bing N.C. 467 case, in which the haystack of the claimant was burned because the defendant did not take appropriate precautionary measures. The defendant provided that as per his best judgement, the fire was not a major risk factor. The court provided that the best judgement of a party is not enough and the party are required to take a standard of care which is expected from a reasonable person (Duffy 2012). In the case of pet owners, they are required to ensure that reasonable precautions are taken by them to protect other parties from their pets; however, the court provided in Lopez v Trujillo 397 P.3d 370 (Colo. 2017) case that they are not liable in case the injury is suffered by the party due to their own fears. In this case, a kid was hit by a van because two pit bulls barked and lunged at him. Both the dogs were strapped to a chain behind the fences, thus, the court provided that a reasonable standard of care was taken by the pet owner and the duty was not breached (Leagle 2017). In the case of children, they are expected to maintain a standard of care as per their age.

In Mullin v Richards (1998) 1 WLR 1304 case, a girl become blind due to the negligence of another 15-year-old school girl. The court provided that a suit to recover the damages cannot be filed because children are required to maintain a standard of care as per their age (Bridgeman 2013). Another element is causation which provides that the damages suffered by the party must be caused due to negligent actions of the defendant. If the duty of breached by the defendant, but, the injury suffered by the party is not caused due to the negligent actions, then a suit for negligence cannot be filed against a party. The court uses ‘but for’ test while determining that the injury would have been suffered by the claimant if a standard of care had maintained by the party. In Barnett v Chelsea & Kensington Hospital (1969) 1 QB 438 case, the court provided that although an injury is suffered by the claimant but it is not the result of the breach of duty by the defendant, thus, thus, a suit to recover the damages cannot be filed by the party. The court also used the test while providing the judgement in Cork v Kirby MacLean Ltd (1952) 2 All ER 402 case. Furthermore, the damages or injuries suffered by a party must be foreseeable because the court did not award compensation for the damages which are too remote (Kotecha 2014). In the Wagon Mound no 1 (1961) AC 388 case, crew members of a ship failed to close the tap of oil due to which it leaked in Sydney Harbour.

Application

Some employees were welding in a nearby Wharf, and they did not consider the fact that the oil can be flammable. The oil caught fire which resulted in causing serious damage to the Wharf. However, the court declined the claim for recovery of damages by providing that the injury was too remote, therefore, the party is not liable to claim compensation. The court evaluates all these elements to determine whether a party is liable to pay compensation under the suit for negligence (Carr 2013). There are various defences available for the defendant as well based on which the amount of damages can be reduced by the court, or the liability can be eliminated completely. The defendant can rely on the voluntary assumption of risk defences which provides that if the claimant has given his/her consent to accept the risk, then a suit for negligence cannot be filed by him after suffering an injury. The consent given by the party must be voluntary and given by the claimant himself without any external factor. An agreement must be constituted between the parties regarding the acceptance of the risk as given in Nettleship v Weston (1971) 3 WLR 370 case. Lastly, the party must have the complete knowledge regarding the risk before entering into an agreement with the party. Another key defence available is contributory negligence; if an injury is suffered by a party partial due to his/her and partially due to another person’s negligence, then the amount of damages can be reduced by the court as per the contribution of the claimant (Murphy & Beh 2014). In Liftronic Pty Ltd v Unver (2001) HCA 24 case, the court reduced the damage of the negligence by 60 percent based on the contributory negligence of the party.

Benji is a Bengal tiger, and she can easily cause damage to people, therefore, it is important that Susan take appropriate care to avoid causing damages to others. According to the principles of neighbour test given in Donoghue v Stevenson case, Susan owes a duty towards Cliff and Mary because they live right next to her and the risk is foreseeable. A standard of care is maintained by Susan since she ensures that Benji is locked in a strong compound from where she cannot get out. The injuries suffered by Cliff and Mary were the result of the release of Benji from her compound by Kim, the daughter of Cliff and Mary. Since Kim is a kid, she did not owe a duty to maintain a standard of care based on which she cannot be held liable for the damages as given in Mullin v Richards case. On the other hand, as a pet owner, Susan owes a duty of care to ensure that Benji did not cause harm to other parties. By keeping her into a strong compound, Susan ensured that a care is maintained by her to ensure that Benji did not cause harm to another individual.

Conclusion

She cannot be held liable for any other outside factor which resulted in causing damages to another party due to Benji as given in Lopez v Trujillo case. Furthermore, the damages suffered by Cliff and Mary were too remote because Susan has taken appropriate care to avoid Benji from causing harm to others, however, when she was not at home, Kim released Benji. This was not expected by Susan, and the foreseeability of these damages was too remote (Wagon Mound no 1). Since all the elements of negligence are not present in the case, a suit for negligence cannot be filed against Susan. The duty which was owed by Susan was not violated by her due to whom she cannot be held liable by the court to pay compensation to Cliff and Mary for the loss suffered by them. Cliff and Mary did not have any contribution in the occurrence of damages, and they did not enter into an agreement to accept the risk, thus, the defence of contributory negligence and voluntary assumption of risk did not apply in this case. Susan cannot rely on these defences, however, she is not required to pay the damages to Cliff and Mary for the loss suffered by them since she did not breach her duty of care.

Conclusion

Susan cannot be held liable by the court to pay damages to Cliff and Mary for the loss suffered by them due to the release of Benji from her compound. Moreover, the defences of negligence are not available in this case since Susan did not have to give compensation to Cliff and Mary.

References

Barnett v Chelsea & Kensington Hospital (1969) 1 QB 438

Bridgeman, J 2013, ‘Unrelated Adults and Unaccompanied Children: Obligations, Risks, and Responsibilities’, Child & Fam. LQ, vol. 25, p. 159.

Carr, C 2013, Course notes: Medical law and ethics, Routledge, Abingdon.

Cork v Kirby MacLean Ltd (1952) 2 All ER 402

Donoghue v Stevenson (1932) AC 562

Duffy, MJ 2012, ‘Testing good securities disclosure: tales of the reasonable investor’, Monash UL Rev., vol. 38, p. 25.

Greene, B 2017, Optimize Tort Law, Routledge, Abingdon.

Kotecha, B 2014, Q&A Torts, Routledge, Abingdon.

Leagle, 2017, ‘N.M. EX REL. LOPEZ v. TRUJILLO’, Leagle (online) 12^th September 2018 < https://www.leagle.com/decision/incoco20170626042>.

Liftronic Pty Ltd v Unver (2001) HCA 24

Lopez v Trujillo 397 P.3d 370 (Colo. 2017)

MacPherson v Buick Motor Co (1916) 217 NY 382

McArdle, D 2013, Football Society & The Law, Routledge, Abingdon.

Mullin v Richards (1998) 1 WLR 1304

Murphy, KL & Beh, HG 2014, ‘The standard of care and the assumption of risk defense in a negligence injury case in a physical education class’, Journal of Physical Education, Recreation and Dance, vol. 85, no. 8, pp. 41-43.

Nettleship v Weston (1971) 3 WLR 370

Paris v Stepney Borough Council (1950) UKHL 3

Tuck, S 2013, ‘To the Rescue: Liability in Negligence for third party criminal acts in the United States and Australia’, Ind. Int’I & Comp. L. Rev., vol. 23, p. 183.

Twigg-Flesner, C 2017, Consumer product guarantees, Routledge, Abingdon.

Vaughan v Menlove (1837) 3 Bing N.C. 467

Wagon Mound no 1 (1961) AC 388