Legal Opinion: Liability Of Susan In Negligence Case Of Cliff And Mary V Susan

Facts of the Case

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.

1. Whether Cliff and Mary claim anything from Susan under the law of negligence?
2. Whether there are any defenses that can be raised by Susan in order to protect her position?

The law of negligence is applicable in the give situation.

In Donoghue v. Stevenson [1932], the law of negligence was rightly established and it was held that when the defendant who owns a duty of care against the plaintiff failed to comply with such duty, then, it is necessary that some harm must be caused to the plaintiff in order to make the defendant liable under the law of negligence. The three main elements that are required to make any defendant liable for negligence are: (Gibson and  Fraser 2014)

1. Duty of care – Every defendant when comply with any of his actions or any of his omissions then it is his responsibly to make sure that nothing must be done by him so that it hampers the result of the plaintiff. Now, the main concern is understand as to against whom the duty is imposed. The duty is not imposed against each and every plaintiff but there are two requirements that must be met in order to make defendant duty bound against defendant (Grant v Australian Knitting Mills (1936).

Neighborhood principle – it is necessary that the defendant and the plaintiff must be neighbors of each other, a person is considered to be the neighbors when the acts of the defendant will hamper the plaintiff without any intervention Liverpool Catholic Club Ltd v Moor [2014]. The parties are so connected and are in proximate with each other that it is the duty of the defendant to make sure that nothing harmful is caused to the plaintiff because of the acts of the defendant Chapman v. Hearse (1961)..

Reasonable foreseeability – A plaintiff is considered to be the neighbor of the defendant and the defendant is only duty bound provided the plaintiff against whom the duty is casted is reasonably foreseeable by the defendant. If the plaintiff cannot be foresee by the defendant then there is no duty on the defendant to provide any kind of protection to the plaintiff Wyong Shire Council v Shirt (1980). (Latimer, 2012)

2. Breach of duty of care – now, as soon as the principle of neighborhood is comply with and the plaintiff is reasonably foreseeable by the defendant the it is his duty to make sure that no loss is caused to the plaintiff because of his actions or omissions. But, it is also submitted that when this duty of care is not met by the defendant as expected from him, then, there is breach of duty of care. Now, the breach of duty is not incurred when the level and degree of protection that is needed from the defendant in the given situation is not met by him, then, such duty is considered to be violated Paris v Stepney Borough Council (1951).

Application of Law of Negligence

3. Loss – it is also necessary that there must be some loss that is caused to the plaintiff in order to make the defendant liable under the law of negligence. It is established that the loss that is caused must be because of the breach of duty of care on the part of the defendant, if the loss is caused because of any other reason than such loss does not comes in the preview of the negligence (Australian Safeway Stores Pty Ltd v. Zaluzna (1987). Also the loss that is caused to the plaintiff was reasonably foreseeable by the defendant, defendant is aware that of he will result in any kind of breach to the duty of care then there are full chances that some loss might be incurred to the plaintiff Smith v Leech Brain& Co [1962].

It is submitted when all the three ingredients are comply with then the defendant is found to be negligent in his actions.

However, if the defendant can prove that the damage that is caused to the plaintiff is not because of the negligence of the defendant also but the damage is result of the negligent acts on the part of the plaintiff as well then the defense of contributory negligence can be raised and the defendant is not liable for the loss that is caused because of the negligence of the plaintiff.

The law that is stated above is now applied in the given situation. There are two main issues that are raised and both of them are now analyzed here: The initial fact submits that Benji is a Bengal tiger which is raised by Susan since the time he was a cub. He was very docile and does not harm anybody. The only thing he is vulnerable and attracted to is milk and to chase the balls of string. Susan treats him like a domestic cat and has also uses her in magic shows. Susan has all the permissions to keep Benji.

In order to understand whether Cliff and Mary can sue Susan for the losses suffered by them, it is necessary to understand whether Susan is found to be liable under all the three ingredients of the law of negligence:

a. Is Susan owns duty of care – Susan is the owner of Benji. A duty of care can be imposed on Susan against Cliff and Mary if it can be proved that the two main ingredients of duty of care, that is, proximity and foreseeability exists.

Duty of Care

It is submitted that Cliff and Mary are the neighbors of Susan. Benji is not a normal animal that is kept by Susan although she has the requite permits to keep the tiger with her. However, she is aware, considering the basis nature of a tiger, that if Benji at any time become violent then it might harm her neighbors. Susan can anticipate that any actions by Benji will hamper the interest of Cliff and Mary directly without any intervention. Thus, both Mary and Cliff should be considered to be the neighbor of Susan.

Furthermore, Cliff and Mary are reasonably foreseeable by Susan like a normal prudent could have foresee in the give situation.

Thus, conspiring the situation, it is submitted that Susan owns a duty of care against both Mary and Cliff.

b. Whether the duty of violated – it is submitted that the duty of care that is imposed on Susan against Mary and Cliff is not met by her. It is found that a compound is made by Susan for keeping Benji. The compound is very strong. She is of the opinion that although she treat Benji as her cat but there are people around who did not approve of the presence of Benji. Considering these fact, it is the duty of Susan that every effort must be made so that Benji could not be escaped in any manner whatsoever. Also, Kim, son of Mary and Cliff generally comes and play with Benji in the presence of Susan. But, Kim once come and meet Benji when Susan was not around and open the compound by taking the keys from a place where Susan normally puts. As soon as the door is opened, Benji push Kim and leave the compound.

It is thus submitted that considering that the people around are not approving the presence of Benji and also that the keys are left at such a place that it is accessible to Kim as well shows that the degree of care that is required from Susan considering the damage that can caused by Benji if left free, is not met and fall short of what is expected by a normal prudent man in the given situation. Thus, there is clear breach on the part of Susan.

c. Are the damages caused comes in the preview of negligence – there are several damages that are incurred when Benji left the compound of Susan. It is submitted that all the losses that are caused will not be imposed on Susan as all the losses are very remote and lack causation.

Breach of Duty

It is submitted that Benji first attacked Cliff. Cliff was carrying a ball of string and was climbing his tractor. Benji jumped on the tractor in order to take the string. Cliff did not know the facts that Benji is approaching him lost his balance and fell backward. Now, though cliff has fallen backward but there is no injury that is caused to him. Thus, no liability can be imposed on Susan if no damage is caused ton Cliff because of the negligence of her. So, Susan is not liable to cliff.

Also, when the Cliff fell of from the mini tractor, the gear of the tractor moved which has resulted in making the tractor in motion. The tractor become uncontrollable ran through the house of Cliff where his wife Mary was cooking. The pan was dropped resulting in fire which damaged the house. It is herein also submitted that the damage to the house is not because of the attack of Benji but the same is caused because Mary has dropped the pan. So, the damage was not near but was too remote and thus Susan cannot be held liable for the loss of the damage in any manner whatsoever.

The running tractor also resulted in releasing all the chickened from coop which escaped and could not be located. Thus, the fresh eggs are not available now. It is established that the escape of chicks from the broken coop is a damage which cannot be predicted by any reasonable man in the given situation, so, this damage is also not anticipated and will not make the Susan liable for the same.

The tractor fell the pool causing damage to the pool and the tractor. These damages are also very remote in nature and cannot be held liable Susan.

Thus,

The main defense in the present issue that can be raised by Susan is the damages that are caused to their house, mini-tractor, chicken coop, and pool, and for the loss of the chickens and eggs are so remote in nature and thus cannot make Susan liable for the same.

But, mental shock is also caused to Cliff and Mary when they are attacked by Benji. This is a damage which a normal prudent person in the like situation can anticipate and thus Susan can be held liable for the same.

Conclusion

It is concluded that Susan owns a duty of care as she was keeping dangerously animal, that is, tiger in her vicinity. This duty if violated by her as she has kept the keys at a place which is not secure.  Also, the damage caused to their house, mini-tractor, chicken coop, and pool, and for the loss of the chickens and eggs are very remote in nature and will not make her liable.

But, mental shock is also caused to Cliff and Mary when they are attacked by Benji. This is a damage which a normal prudent person in the like situation can anticipate and thus Susan can be held liable for the same.

Reference list

Books/Articles/Journals

Gibson, A. and Fraser, D 2014, Business Law. 8th ed. Sydney: Pearson Publications.

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

Australian Safeway Stores Pty Ltd v. Zaluzna (1987).

Chapman v. Hearse (1961)

Donoghue v. Stevenson [1932] AC 562

Grant v Australian Knitting Mills (1936)

Paris v Stepney Borough Council (1951).

Liverpool Catholic Club Ltd v Moor [2014]

Smith v Leech Brain & Co [1962] 2 QB 405.

Wyong Shire Council v Shirt (1980) 146 CLR 40