Legal Opinion On Corporate Liability Of Wild Animals: Case Of Shorten V Grafton District Golf Course NSWCA 58

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 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, [marks will be deducted for 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 and the IRAC format.

This is a civil case, marks will be deducted for attempting to bring criminal charges. 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.

1. Whether Cliff and Mary sue Susan for the damage to their house, mini-tractor, chicken coop, and pool, and for the loss of the chickens and eggs?

2. Whether Cliff and Mary sue for mental shock of being attacked by Benji and the shock of the house fire?

The law of negligence is a very important piece of legislation. It is a law of tort and aims at compensating the aggrieved parties who have suffered losses because of the wrongful actions of the defendants.

An act is construed to be a negligent act when an obligation of protecting the plaintiff is not comply with by the defendant as per the required standard resulting in breach and causing damages to the plaintiff (Donoghue v Stevenson [1932]). A defendant is considered to be liable under the law of negligence when the three essentials of the law of negligee are established against the defendant. The same are: (Latimer, 2012)

1. Duty of care – A defendant should acknowledge that fact that no loss must be incurred to the aggrieved/plaintiff because defendant’s actions. However, no liability can be imposed on the defendant for every loss that is caused to the plaintiff (Anns v Merton London Borough Council[1978]. The two required elements are:

a. Proximity – There is proximity amid the defendant and the plaintiff. The proximity submits that the parties must be so connected so that the actions of the defendant must make an impact on the plaintiff directly (Bourhill v Young[1943]). There is should be nearness amid the two and both of them must be considered to be the neighbor of each other.

b. Reasonable forseeability – It is also very necessary that the presence of the plaintiff must be reasonably foreseeable by the defendant (Home Office v Dorset Yacht Co Ltd[1970]. If the defendant cannot predict that the plaintiff is spotted at a position wherein he can be considered as his neighbor, then, there cannot be any kind of duty on the defendant (Topp v London Country Bus [1993].

2. Breach – There should be non-performance of duty by the defendant. When the desired level and standard of care and protection is not met then there is breach. The level must be measured as what a normal prudent man thinks in the given situation (San Sebastian Pty Ltd v. Minister Administering the Environmental Planning and Assessment Act 1979(1987). The level of care caries with the situation, that is, if the plaintiff is vulnerable then the duty is high, if the risk is high then the duty is higher Reid v Commercial Club (Albury) Ltd [2014]. Thus it is the standard care which is when not met results in the violation ((Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009]

3. Damages – It is necessary that because of the breach there should be injury sustained by the aggrieved/ plaintiff (Australian Safeway Stores Pty Ltd v. Zaluzna(1987). But, it is not every loss that must be compensated by the defendant. The main elements of damage are:

Applicable Law

a. Causation – the injury caused is the results of the defendants actions otherwise, such loss does not comes in the arena of negligence (Overseas Tankship (U.K.) Ltd. Moris Dock and Engineering Co. Ltd(1961).

b. Remoteness – That the loss that is caused must not be remote in nature which cannot be reasonably foreseeable by the defendant. Damages which are remote is not covered under the law of negligence (Lindeman Ltd V Colvin [1946]

A defendant can protect himself by relying on the defense of volenti non fit injuria by establishing that the plaintiff injury is because of his own fault. The defense of contributory negligence can also be relied by proving that the loss that is caused is because of the negligence of both the plaintiff and the defendant.  

Susan is the owner of a land situated in Victoria, Australia. She has a pet Bengal Tiger, Benji, and has requisites permissions to keep Benji with her. Benji and Susan work at the magic show of Susan where the people of the local age care homes are fond of the performance of Benji. She treats Benji as her small domestic cat.

It is submitted that Susan is found to be negligent on several accessions, but it is necessary to prove all the elements of negligence against Susan.

It is submitted that Susan is aware that Benji is a quite pet and generally does not harm any person but she is also aware that Benji has a thirst for milk and has a desire to chase balls of string. A string compound was built in by Susan wherein Benji is kept. She also acknowledges the fact that keeping Benji is safe but there are people who might not agree with the same.

Now, Susan owns a duty of care against Kim mainly because:

1. Kim, a small child who lives the next day, visits Susan to meet Benji. Kim usually plays with Benji when Susan is present. Thus, Kim and Susan share a relationship of proximity as any act of Susan with respect to Benji might affect Kim directly. Thus, Kim is the neighboir of Susan.

2. Also, Susan can reasonably foresee the presence of Kim.

So, there is duty of care that is imposed upon Susan to not to indulge in  any act that might harm Kim.

It is found that one day Susan was not present and Kim has knowledge as to where the keys of Benji compound are kept. Kim unlocked the door and at that time Benji pushed Kim at a side and start looking for milk.

It is submitted that Susan has a duty to make sure that the keys of the compound must be kept at a place so that it must not be accessible by any other person apart from her. But, the keys were placed at a place where in a child, Kim, can also access the same. So, the level of care that is expected from Susan was not met by her.

Duty of care

Because of such breach of duty, Kim unlocked the door and at that time Benji pushed Kim at a side and start looking for milk.

 It is submitted that Susan has kept a tiger in her premises. Thus, it is her duty to make sure that the tiger must be kept in such manner so that it does not cause any harm to any persons especially to the persons who are living in her vicinity.

Father of Kim, Cliff, was also living next to the house of Susan. Thus, Susan is aware that of Benji escapes then there are chances that he might cause injury to the neighbors including cliff. Thus, Cliff and Susan are in the relationship of proximity. Also, the presence of Cliff is reasonably foreseeable by Susan.

So, Susan is under duty towards Cliff and must take actions so that no loss is caused to Cliff because of any acts of Susan.

But, there is breach of this duty on the part of Susan as she kept the keys of the compound of Benji at such a place that it was easily accessible by a child. So, the level of care that is expected from Susan was not met.

 It is submitted that when Benji escaped from its compound he spotted Cliff who was 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.

However, there was no loss that is caused to Cliff because of the acts of Benji.

Thus, Susan cannot be held liable towards Cliff as no loss is caused to Cliff.

 Mary was the wife of Cliff. She is also living adjacent to Susan. Thus, Mary is the neighbor of Susan and is reasonably foreseeable by Susan. Thus, Susan owns a duty of care against Mary so that no loss is caused to Mary because of the acts of Susan.

Now, by keeping the keys at a vulnerable position there was breach on the part of Susan.

It is further submitted that when Cliff fell backward, there was knocking of the gearshift which result it in motion. 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.

It is submitted that loss is caused to the house of Mary and Cliff. But, the damage to the house is not because of the due to breach of Susan. The loss that is caused is too remote to be anticipated by Susan or any reasonable person in the given situation. Also, the loss is not caused because of the breach and thus there is no presence of causation.

Thus, Susan is not responsible for the loss that is caused the house of Mary and Cliff.

Breach

 It is submitted that 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.

It is submitted that Susan owns a duty which was breached by her. Because of the breach Benji attached Cliff who losses his balance resulting in making the tractor in motion. Because of the same the tractor run 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 chicken also escaped and could not be located.

But, it is submitted that the loss that is caused to the tractor and the pool and chicken is the loss that is not caused because of the breach on the part of Susan. But, the loss that is caused is because of Cliff loosing it (unintentionally) and not because of the acts of Susan. So, there is no causation. Also, the loss is too remote to anticipate.

Since the chickens could not be located it result Cliff and Mary could no longer have fresh eggs. This injury is remote to anticipate and thus Susan is not accountable.

Thus, Susan cannot be held liable for the same.

Now, Cliff and Mary can sue Susan for mental shock of being attacked by Benji. Susan is aware that of Benji would left open then it is not a normal thing as he being a Bengal tiger has the capacity to gave shock to people. So, the damage of shock can be easily anticipated by Susan. So, Susan must be held liable for the shock.

But, Susan cannot be held liable for the shock of the house fire. This is because the shock of the house of fire is the loss that cannot be anticipated by Susan normally. This loss is too remote to predict.

Conclusion:

So,  Cliff and Mary cannot sue Susan for the damage to their house, mini-tractor, chicken coop, and pool, and for the loss of the chickens and eggs. They can sue for mental shock of being attacked by Benji. But, Susan cannot be sued for the shock of the house fire as such loss is too remote to anticipate.

Also, Susan can establish the Cliff and Mary are aware of the presence of Benji but still they prefer to stay nearby and thus they have contributed to their own loss and thus rely on contributory negligence.

Reference:

Books/Articles/Journals

Paul Latimer, Australian Business Law. 2012. CCH Australia Limited.

 Case laws

Anns v Merton London Borough Council [1978] AC 728  

Australian Safeway Stores Pty Ltd v. Zaluzna (1987).
Bourhill v Young [1943] AC 92  

Donoghue v Stevenson [1932].
Home Office v Dorset Yacht Co Ltd [1970] AC 1004;

Lindeman Ltd V Colvin [1946].

Overseas Tankship (U.K.) Ltd. Moris Dock and Engineering Co. Ltd (1961).

Reid v Commercial Club (Albury) Ltd [2014].

Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009]

San Sebastian Pty Ltd v. Minister Administering the Environmental Planning and Assessment Act 1979 (1987).

Topp v London Country Bus [1993] 1 WLR 976