The Course of the Case
Chloe is a naturopath practitioner whose business is steadily picking up. Recently she has been thinking of opening a meditation studio in the leafy suburb of Burnside. She found a perfect place but before signing the 2 year lease with the landlord, she went to the Burnside Council to check if there were any building works scheduled to happen close to her intended premises as she needed a quiet environment for her meditation practice. She spoke to the person sitting in the front desk attending to general enquiries and told him about her business and that she wanted to check before signing the 2 year lease. The council officer checked on the computer to see if there were any planning approvals close to Chloe’s intended studio. While doing this he was called away to attend to another matter. Upon returning to his desk, he has a cursory glance at the screen and said “it should be fine”. Chloe signed the 2 year lease. 6 months after opening her business, big heavy machineries arrived at the property next door. When Chloe asked the workmen what was happening, she was told that they were doing a major renovation next door including knocking down a few walls. The noise made it impossible for Chloe to continue her practice. With the on-going noise and the failure of her business Chloe is now suffering a nervous disorder. Had she known there was going to be building work next door she would not have leased the premises. Chloe has moved out of the premises and stopped paying rent. She wants to get out of her contract with her landlord as she is now no longer able to continue her practice. The landlord is threatening to sue Chloe for breach of contract. Chloe comes to you for advise. She wants to sue the Burnside Council. Will she be successful?
The main issue associated with the case of Chloe is, if she will be successful in suing Burnside Council successfully?
Considering the above mentioned case, the rules under Tort of negligence is needed to be discussed. Under of tort of negligence, duty of care of refers to circumstances in which one individual owns another person the duty of care which is, associated with performing or not performing certain duties that a reasonable individual would be needed or refrains from doing. In this context, in certain cases elements of negligence may be noticed which results in arising legal concerns (Accaglobal, 2018). Negligence in tort of negligence refers to performing or failing in performing certain activities which a reasonable individual in the same position will be performing or will refrain from performing. The failure of performing the specific task or performing the task due to negligence would result in causing loss, injury or damage to another individual. The case of Blyth v. Birmingham Waterworks Company (1856) 11 Ex Ch 781 is mentionable here in which it was stated that for judging the actions of the defendant the standard of reasonable man is needed to be considered (revolvy, 2018).
The Relevant Tort: Negligence
In order to determine if negligence has occurred, there are four question which are needed to be satisfied which are as follows:
- If the defendant owned the plaintiff a duty of care? In other words, if the individual who is being sued owed the aggrieved individual a duty of care?
- If the defendant breached his/her duty of care?
- If the plaintiff suffer any damage or injury?
- If the injury or damage experienced on the part of the aggrieved individual was the result of breach of duty of care (Barker, 2012)?
In order to come to the conclusion that negligence has occurred in a particular case scenario, it is essential of all the mentioned questions to be satisfied. In case, even one of the questions is fails to be established the plaintiff will not be able to establish negligence on the part of defendant. In this context the case of, Caparo Industries plc v. Dickman  UKHL 2 can be referred (scienzegiuridiche, 2018). It is in this case, the House of Lords established the requirements for determining the presence of duty of care.
This makes it essential to discuss the concept of duty of care in an in-depth manner. Duty of care can be considered to be a legal obligation for the purpose of avoiding harm and incase chances of harm occurs which is reasonably foreseeable in nature care is needed to be taken. It is worth mentioning here that, for the purpose of presence of duty of care, there is needed to be sufficient closeness and proximity between two individuals.
In South Australia, for the purpose of assessing the negligence of individuals and liability which is faced on the part of the defendant due to negligent acts, Civil Liability Act 1936 (SA) is used (carternewell, 2018).
For the purpose of determining if duty of care has been breached the court will take in consideration standard of care which is expected in the particular situation. It is gets determined with the help pg analyzing what a reasonable individual would do or not do in the same situation. In case, it gets established that the defendant has acted in an unreasonable manner or the action taken on their part is below stand expected it will be considered that duty of care has been breached on the part of the defendant (Trindade et al., 2007). If breach of duty of care for determining that what has resulted in injury, in certain cases the reason of injury is obvious. However in certain cases in determining the cause of injury it may be complex in nature wherein it becomes difficult in determining if one particular reason caused in the injury or there was a combination of factors that resulted in the injury.
In case of vicarious liability when one individual is held liable for the negligent actions of another individual it is referred to as vicarious liability. It is usually observed in case of negligence of an employee in carrying out its duty in which the company is held to be vicariously liable. For the purpose of making claim for breach of duty of care, it is needed to be determined if making a claim is worthwhile (Morgan, 2011). For this purpose, legal advice is needed for the purpose of determining is there is any legal edifice in making the claim, the person who can be sued in this case, the scope of success and the costs associated with going to court like court fees.
Duty of Care
In cases involving duty of care, on the part of the aggrieved part, the defendant may be sued. It implies that the aggrieved individual is seeking financial compensation for the damage. In these cases, the defendant is seeking to be placed in the position in which he/she would have been in the absence of the negligence.
Referring to the provided case, the case of Jolley v. Sutton London Borough Council: HL 24 May (2000) may be referred in which a local authority failed in removing an abandoned boat for the purpose of repairing (swarb, 2016). In this case the authority was held liable as the authority had awareness that the child regularly played on the boat.
On the basis of the above made discussion if the provided case of Chloe is analyzed it may be observed Burnside Council, when approached by Chloe, owed duty of care to Chloe for providing her with accurate information which was demanded by her. On analyzing the case further, it may be observed that it was the lack of affectivity of the council officer on analyzing the planning approvals effectively, in which his casual approach can be observed with the help of the fact that he gave a hasty glance at the screen. It is on the basis of this hasty glance, he made the comment that it should be fine. It information turned out to be wrong when 6 months later heavy machineries arrived near the property. On this basis, the negligence of the council officer can be clearly established (lawhandbook, 2018). In addition to that, as the officer was an employee of the council, it makes Burnside Council vicariously liable for the lack of affectivity of the officer that resulted in her loss in business and made her suffer of nervous disorder. In addition to that, for the purpose of determining if negligence has occurred, on the basis of above mentioned the 4 questions if this case is analyzed it is noticeable that:
- Burnside Council owed duty of care to Chloe
- There was breach of duty of care because of negligent act of the officer
- Chloe suffered damage in loss of her business and nervous breakdown
- The underlying reason behind which being the act of the officer.
In this context it may be needed to determine if the breach of duty of care resulted in her injury. In this context it may be observed that is was the negligent act of the officer which resulted in making her the wrong choice for lease of the property that made it impossible for her to practice (Accaglobal, 2018). This resulted in her loss in the business and caused nervous break. In this case, the underlying reason of her damage was the act of the officer establishing that breach of duty of care resulted in her injury.
Thus, it is due to this breach of duty of care on the part of the officer, which makes Burnside Council vicarious liable to Chloe for which she can sue Burnside Council for its negligence which implies that she is seeking financial compensation for her loss.
Thus in the conclusion it may be stated that, it was the negligence in the part of council officer, due to which Burnside Council can be help vicariously liable as it resulted in her loss or damage which is foreseeable in nature due to which he will be able to successfully sue Burnside Council.
Accaglobal. (2018). Key aspects of the law of contract and the tort of negligence. [online] Available at: https://www.accaglobal.com/ca/en/student/exam-support-resources/fundamentals-exams-study-resources/f4/technical-articles/key-aspects-of-the-law-of-contract-and-the-tort-of-negligence.html [Accessed 15 May 2018].
Barker, K. (2012). The law of torts in Australia. South Melbourne: Oxford University Press.
carternewell. (2018). The Law of Negligence?– Scope of Duty of Care. [online] Available at: https://www.carternewell.com/publications/Australian-Civil-Liability-Guide-9th-Edition/files/assets/basic-html/page208.html [Accessed 15 May 2018].
lawhandbook. (2018). Negligence. [online] Available at: https://www.lawhandbook.sa.gov.au/ch01s05.php [Accessed 15 May 2018].
Morgan, P. (2011). Distorting Vicarious Liability. The Modern Law Review, 74(6), pp.932-946.
revolvy. (2018). Blyth v Birmingham Waterworks Co. [online] Available at: https://www.revolvy.com/main/index.php?s=Blyth+v+Birmingham+Waterworks+Co [Accessed 15 May 2018].
scienzegiuridiche. (2018). Caparo Industries plc v Dickman. [online] Available at: https://www.scienzegiuridiche.uniroma1.it/sites/default/files/docenti/alpa/Caparo_Industries.pdf [Accessed 15 May 2018].
swarb. (2016). Jolley v Sutton London Borough Council: HL 24 May 2000. [online] Available at: https://swarb.co.uk/jolley-v-sutton-london-borough-council-hl-24-may-2000/ [Accessed 15 May 2018].
Trindade, F., Cane, P. and Lunney, M. (2007). The law of torts in Australia. South Melbourne: Oxford University Press.