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 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.
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.
Can Mary and Cliff claim from Susan for the damage fto their mini-tractor, chicken coop, house, pool, eggs and chicken?
Can Mary and Cliff claim from Susan for mental shock due to attack by Benji and the shock suffered by them due to fire in their house?
The Law of tort is very wide and covers a lot of laws, one of which is the law of Negligence. The law of negligence was developed in order to protect the injured, who suffers injury due to no fault on his part and thus compensation must be provided to the injured by the person who is the defaulter. Law of Negligence is made in order to compensate injured when he faces loss. It puts obligation upon the defendant to act in a proper and careful manner so that no person is injured by his acts. The law of Donoghue v. Stevenson (1932) leads to the development of negligence. (Gibson & Ase 2008)
A defendant is considered to be negligent when three ingredients of negligence are met: (Norman 2004)
- Duty of care –Itis the duty on the defendant under which he is under an obligation to act in such manner so that his acts must not cause any harm to any third person. But, against whom the defendant must incur the duty of care. In Donoghue case, the principal of neighborhood was established. As per this principal, anybody who is near or in proximity of the defendant is his neighbor and the defendant must act properly and should not harm any of his neighbors. (The Law Hand Book 2014)
Further, it is very important to imposed duty of care against the defendant provided the neighbor/plaintiff must be the person who is foreseeability by the defendant and is held in the leading case of Tame v New South Wales (2002).
- Breach of duty of care - The defendant is said to be in breach of duty of care, when he does not takes adequate care while performing his acts and thus the injury is inflicted upon any of his neighbor due to his acts. The breach is said to happen when the level or the standard of care which should had been adopted by the defendant in certain circumstances are not taken care of by the defendant. In case level of care is not appropriate as per the circumstances, then, the defendant is liable for breach of duty of care and is held inBolton v Stone (1951). Proper care is such which a prudent person would had taken in the said situation must be adopted, then only the defendant can said to had not breached the duty of care and is held in Blyth v Birmingham Waterworks Co (1856). (The Law vision 2008)
- The injury caused - The injury caused to the neighbor due to the breach of duty of care is the last step to establish that the defendant is negligent. The injury must be caused due to the act of the defendant. The injury caused should be foreseeable in nature. If the injury that is caused to the injured is not reasonably foreseeable by a prudent person in the said circumstances, then, in that case the defendant cannot be held liable. The defendant is only liable when the act of the defendant is proximate to the damage caused to the inured. In case of missing of element of proximity or reasonable foreseableness, the defendant cannot be held liable as the injury must be foreseeable and there must be proximity and causation between the act and the injury. In case injury is caused but not due to act of the defendant then in that case injured cannot claim from the injured under the law of negligence and is held in South Australia Asset ManagementCo v York Montague (1996). (McLure 2008)
There are two defenses that are available to the defendant by which the defendant can reduce or skip the liability under the law of negligence.
- When the plaintiff is injured by his own acts and inspite of knowing about the danger he chose to act and thus is injured, then, there is applicability of volenti non fit injuria, which means that a defendant is not liable in case where he brings the danger to the notice of the injured and injured then also moves ahead. This term means that one who voluntarily assents to the danger cannot claim in case of injury as he was having knowledge of the danger.
- When the defendant can prove that inspite of his negligence there was wrong committed by the injured himself also which lead to so much loss to the injured. This concept is known as contributory negligence. In case the injured had been vigilant or careful then such amount of loss must not had happened to the injured. In such a case the liability for injury are divided among the defendant and injured accordingly and is held in Joslyn v Berryman.
In case the above defenses are proved by the defendant then he can get away from the liability or get the liability reduced accordingly.
Susan has a bush land in Victoria. she was having a pet which is Bengal Tiger with whom she lived away from crowded place. She uses Benji to perform in local age care homes. She has all the permits which were required to keep Benji. Benji is docile but he has thirst for milk and also likes chasing of the balls with strings. Susan had a strong compound and keeps Benji there only. Susan realizes that outsiders may not think that Benji was safe for them.
Now, there are various acts that took place and which require independent analysis in order to under the liability of Susan.
Claim of Mary and Cliff - Susan for the damage to their mini-tractor, chicken coop, house, pool, eggs and chicken?
Now, it is submitted that Kim, who was a small child, was the neighbor of Susan. He comes to see Benji when Susan is at home. Also, Cliff and Mary were the parents of Kim who are the neighbors of Susan.
It is submitted that Susan owns a duty of care towards all the three, that is, Kim, Cliff and Mary.
It is submitted that Suisan is aware of the presence of Kim, Cliff and Mary. Susan can reasonably foresee the presence of all the three, thus, as per Tame v New South Wales there is reasonable forseeability. Also, Suisan is aware that she has kept a pet who is very dangerous in nature. she is also aware that of anything dangerous is committed by Bejni then the same might affect Cliff, Kim and Mary as they are living in the same locality. Thus, there is closeness amid Susan with all these three persons considering the fact that Kim visits the house of Susan to play with Benji. Thus, there is proximity amid Susan and all the three other individuals and thus by applying the law in Donoghue v. Stevenson, Susan is sharing a relationship of neighborhood with them
Thus, since there is presence of reasonable forseeability and proximity, thus, Susan owns a duty of care against all these three persons.
But, one day Susan was not at her home and Kim came over to her house and got the keys of compound and opened it. It is submitted that since a small child has the ability to take the keys of the compound of Benji, thus, it can be interpreted that the level of care that is needed in the given situation, considering a fact that a Bengal Tiger is kept by Susan, is not met. As per Blyth v Birmingham Waterworks Co the level of care that is expected from Susan is not comply with. so there is breach of duty of care.
Now, when Kim opened the door, Benji jumped out and start looking for milk and pounced and pushed Kim. Now, Susan can be held liable for the damage to the mini-tractor, chicken coop, house, pool, eggs and chicken provided the elements of damages are proved:
It is submitted that Benji saw Kim’s father Cliff while Cliff was marking a new vegetable garden with a ball of string. Benji went on to chase the string. Cliff who was climbing on the tractor having ball of string did not noticed that Benji was coming towards the tractor. Benji as a result jumped on the tractor for taking string from Cliff’s hand but Cliff fell by which the gear of tractor was knocked into drive.
- Now, because of moving of the tractor without the presence of Cliff, the tractor ran through Cliff’s house and Mary Cliff’s wife was shocked as a result of which the pan of cooking oil was dropped on the cook top which in turn lead to fire in the house.
It is submitted that the fire that is caused is not because of the acts of Benji but because if an unarmed tractor. This loss is very remote and thus this loss is not covered under the law of negligence;
- Further, the tractor did not stopped thereafter and ran through their property and tractor ran through a chicken coop which released all the chickens. The release of the chicken is not because of the acts of Susan or Benji. The act was not at all related because of the breach of duty on the part of Susan. So, there is no causation and thus, Suisan is not liable for the loss that is caused to the chicken;
- Eventually the tractor fell into the swimming pool and caused damage to pool and tractor also. The loss to the pool and the tractor itself is very remote and cannot be predicted by any reasonable person in the like situation. Also, the los is not caused because of the breach of duty of care on the part of the Susan. So, there is no presence of causation also. So, Susan is not liable to the said losses.
Thus, it is submitted that Susan cannot be held liable for the losses that are caused to Mary and Cliff mainly because such losses were too remote to predict and were not because of the breach of duty of care on the part of the Susan. So, Mary and Cliff cannot sue Susan for such losses.
Because of the escape of Benji, both Cliff and Mary were in mental shock as they had been attacked by Benji and the shock of fire in the house. It is submitted that this loss can be anticipated by Susan as it was very obvious that any reasonable person will come in shock after seeing a Bengal tiger in front of them unarmed. Thus, this damage can be reasonable predictable by Susan and is caused because of the breach of duty of care on the part of Susan. Thus, Cliff and Mary can sue Susan for mental shock.
But, Susan can prove that the loss that is caused to them were mainly because they were aware that a Bengal tiger is living next to them and still they take no action to get rid away from such danger. Thus, they has also contributed to the loss that is caused to them/ thus, Susan can rely on the defense of contributory negligence.
Thus, Susan is not liable for any other loss apart from the loss of mental shock that is incurred to Mary and Cliff because of the escape of Benji.
Gibson and Ase 2008, Business Law, Pearson Education Australia, Prentice Hall 3rd Ed.
Norman, K 2004, "Who then in law is my neighbour?" <https://eprints.qut.edu.au/5213/1/5213_1.pdf>;
McLure, CJ 2008, A Practical Guide To The Resolution Of Causation Issues In Negligence. < https://www.aila.com.au/docs/default-source/speaker-papers/a-practical-guide-to-the-resolution-of-causation-issues-in-negligence.pdf?sfvrsn=2>;
Bolton v Stone (1951).
Blyth v Birmingham Waterworks Co (1856)
Donoghue v. Stevenson (1932).
Joslyn v Berryman .
South Australia Asset Management Co v York Montague (1996).
Tame v New South Wales (2002)
The Law Hand Book, 2014, Duty of Care. <https://www.lawhandbook.org.au/handbook/ch06s03s02.php>;
The Law vision, 2008, The Law of Tort.< https://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf>;