Elements Of Negligence Torts And Defences In Negligence Cases Essay.

a) Demonstrate a working knowledge and understanding of the principles of Australian Business Law within the context of the prescribed readings.

b) Identify and analyse relevant facts, problems and legal issues from a given scenario and develop an argument in response, discussing available options in the context of business law.

c) Interpret business law legislation and cases and complete questions based on that legislation and relevant case law in class.

d) Appreciate the role of compliance and the requirement that organisations and individuals must follow the laws that apply to their industry areas.

e) Understand and apply the law related to establishing, managing and controlling enterprises

• Whether a successful suit for negligence can be filed by Cliff and Mary against Susan to enforce her to pay for the loss which they suffered due to Benji?
• Whether any defences are available for Susan against the suit for negligence?

Negligence torts are not defined as deliberated actions; instead, they are referred to the failure of an individual or entity act reasonably towards another person to whom a duty of care is owed. The tort of negligence covered the specific torts which resulted in causing monetary losses or personal injury to a party. There are certain elements which constitute a negligence tort which must be present in order to demand compensation. Firstly, a person must owe a duty to the victim in question regarding maintaining a standard of care. Secondly, such standard or obligation must be violated by the party (Barker et al. 2012). Thirdly, an injury must arise due to that specific violation of the obligation. Lastly, the injury which caused as the result of the negligent actions must have been reasonably foreseeable. In Donoghue v Stevenson (1932) AC 562 case, the elements of negligence were established by the court which applies to modern suits filed for negligent actions of parties. The claimant ordered ginger beer in the café and went ill after drinking the beer. The illness was caused due to the remains of a dead snail which were present in the bottle. A suit for recovery of damages under the tort of negligence was filed by the claimant against the manufacturer. The judgement of the court was given based on the elements of the negligence. Firstly, a duty of care was owed by the manufacturer towards its customers to ensure that a standard of care is maintained by manufacturing the beer bottles. Such duty was violated because the remains of a snail were present in the bottle (Barravecchio 2013).

The illness of the claimant was caused due to the negligence of the defendant, and the injury was not too remote as well. While deciding the duty of the party, the court used the ‘neighbour test’ to evaluate whether the manufacturer owed a duty or not. The test provides two key elements which must be present in order to establish the duty of a party. Firstly, the risks must be foreseeable, and proximity must exist between the relationships between parties. Based on this test, the court provided a judgement in the case of O’Dwyer v Leo Buring Pty Ltd (1966) WAR 67 in which it was held that a manufacturer owed a duty while designing the goods. Furthermore, a duty of service is also owed by the party while packing the goods as given in Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) HCA 44 case to ensure that the goods are safe for customers (Latimer 2011). After proving that a standard of care is owed by the defendant, the parties are required to prove that such a standard must be violated by the party. The breach of the duty of care is recognised by the party based on an objective test. The objective test evaluates whether a reasonable standard of care is maintained by the party which a reasonable person would in the particular situation. In Vaughan v Menlove (1837) 3 Bing N.C. 467 case, the court provided that a reasonable standard of care must be established by the party to avoid causing loss to another person. The haystack of the claimant was burned because a standard of care was not maintained by the defendant.

Duty of Care

The claimant was given many warnings to the defendant before to ensure that a standard of care is maintained by him. The defendant provided in the court that as per his best judgement, a reasonable standard was taken by him, however, the court provided that the best judgement is not enough. It is expected that a standard of care should be maintained which a reasonable person would in the particular situation. Thus, the court held the defendant liable for negligence. In the case of Mullin v Richards (1998) 1 WLR 1304, the court provided that children be expected to ensure a standard of care according to their age. In this case, some 15-year-old girls were fighting, and due to the negligence of a girl, another girl suffered an injury to the eye due to which her eyesight was lost. A suit for negligent was filed against the girl; the court provided that the girl was expected to maintain a standard of care which a 15-year-old girl should, thus, she cannot be held personally liable (Dyson 2015). The injury or damages which arise must be the result of the negligent actions of the defendant which is referred to causation. The cause of the injury suffered by the party must be the negligence of the defendant to maintain a standard of care. In order to determine this element, the court uses ‘but for’ test which was given in Barnett v Chelsea & Kensington Hospital (1969) 1 QB 428 case. This test determines whether the injury which is suffered by the parties would have occurred even if the defendant would not have conducted negligence.

Due to the presence of the negligent actions of the defendant, an injury or damages is suffered by the claimant. If the negligence would not have occurred, then the injury of the claimant could have been prevented. Thus, this test established a link between the injuries of the party along with the negligent actions which is necessary to be established while filing a suit for negligence. In case of the injury suffered by the party is too remote then the claimant did not have the right to claim compensation. Therefore, the remoteness of the damages is also evaluated by the court while issuing an award in the case of negligence. Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] UKPC 1 is a good example to understand how remoteness of the damages is relevant for the suit of negligence. This case is famously known as The Wagon Mound No 1 case. The crew members on a ship forgot to close the tap of the oil barrel due to which oil leaked in Sydney Harbour. Some employees were welding near the Sydney Harbour on a wharf. They saw the oil but did not think that it could be flammable. The oil caught fire due to welding due to which the wharf was damaged. A suit for negligence was constituted to recover the damages for the wharf; however, the claim was rejected by the court by providing that the damages are too remote (Charman, Vanstone & Sherratt 2012). Since the damage was not foreseeable, the court provided that a claim for negligence cannot be filed.

Standard of Care

The court evaluates all these elements when a suit for negligence is filed by the party to determine whether or not the innocent party has the right to recover damages. The defendant can rely on various defences in a suit for negligence to reduce the overall compensation or end the liability. The defendant can rely on contributory negligence, for example, if a pedestrian is crossing a road carelessly and get hit by a reckless driver, then the compensation paid for the injury suffered by the pedestrian will be reduced based on his/her contribution in the injury. A good example was given in Imbree v McNeilly (2008) HCA 40 case in which the liability of a driver was reduced by 30 percent based on the contributory negligence of the passenger (Arvind & Steele 2012). A similar judgement was given by the court in Reeves v Commissioner of Police of the Metropolis (2000) 1 AC 360 case. Voluntary assumption of risk is another defence available in the case of negligence which provides that a person cannot demand compensation for damage suffered by him from a risk in which he/she has given his/her consent. For example, demanding compensation after getting a lift from a drunk driver. The consent must be given voluntarily by the party, and an agreement must be formed between the parties prior to giving the consent for the risk as given in Smith v Charles Baker & Sons (1891) AC 325 case. The party must have complete knowledge regarding the full nature and extent of the risk while relying on the defence of voluntary assumption of risks.

Susan is keeping a Bengal tiger named Benji in her house which she uses in her magic shows. Although Benji is harmless and did not cause any harm to other parties, however, she can cause serious injury to people. Susan understands her duty of care towards Benji; therefore, she kept her into a strong compound. Susan has maintained appropriate care to ensure that Benji did not get out and cause injury to other individuals. Cliff and Mary are the neighbours of Susan, thus, proximity exists in their relationship. The element of foreseeable of the risk is also available since Benji is a big tiger. As per the neighbour test discussed in Donoghue v Stevenson case, a duty of care is owed by Susan toward Cliff and Mary. The element of causation is also available; the injuries faced by Cliff and Mary were caused due to Benji (Barnett v Chelsea & Kensington Hospital). However, Benji went out of her compound due to Kim rather than Susan. Since Kim is just a child, she is required to maintain a standard of care which is expected from a child, thus, she cannot be held liable for negligence as discussed in Mullin v Richards case. Susan was not available in the house when Kim released Benji from her compound.

Breach of Duty

By keeping Benji into a strong compound, Susan has maintained her duty of care which is expected. Thus, she cannot be held liable for breach of the duty of care. Moreover, the damages were not foreseeable since Susan cannot expect that someone would release Benji from her compound. Thus, as discussed in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd case, Cliff and Mary did not have the right to claim compensation under the suit of negligence from Susan. Since Cliff and Mary did not breach the standard of care which is expected of them, Susan cannot rely on the defence of contributory negligence. Furthermore, an agreement did not form between the parties based on which the defence of voluntary assumption of risk cannot be applied. However, Susan did not have to pay compensation to Cliff and Mary since she did not breach the standard of care while keeping Benji in her house. Moreover, the damages suffered by them were too remote based on which they cannot hold Susan liable for the loss suffered by them.

Conclusion

To conclude, a successful suit against Susan cannot be filed by Cliff and Mary to recover damages from her because all the elements of negligence are not present. The damages suffered by them were too remote, and Susan did not breach her duty of care. Susan cannot rely on the defences of negligence; however, she did not have to pay compensation to Cliff and Mary.

References

Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) HCA 44

Arvind, TT & Steele, J 2012, Tort law and the legislature: common law, statute and the dynamics of legal change, Bloomsbury Publishing, London.

Barker, K, Cane, P, Lunney, M & Trindade, F 2012, The law of torts in Australia, Oxford University Press, Oxford.

Barnett v Chelsea & Kensington Hospital (1969) 1 QB 428

Barravecchio, JA 2013, ‘The tort of negligence’, Legaldate, vol. 25, no. 4, p. 4.

Charman, M, Vanstone, B & Sherratt, L 2012, As Law, Willan, Abingdon.

Donoghue v Stevenson (1932) AC 562

Dyson, M 2015, Comparing Tort and Crime: Learning from Across and Within Legal Systems, Cambridge University Press, Cambridge.

Imbree v McNeilly (2008) HCA 40

Latimer, P 2012, Australian Business Law 2012, CCH Australia Limited, Sydney.

Mullin v Richards (1998) 1 WLR 1304

O’Dwyer v Leo Buring Pty Ltd (1966) WAR 67

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] UKPC 1

Reeves v Commissioner of Police of the Metropolis (2000) 1 AC 360

Smith v Charles Baker & Sons (1891) AC 325

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