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Establishing the Duty of Care

Discuss about the Contributory Negligence Historical and Comparative.

The given case study which revolves around Sebastian Surtees Pty Ltd and Clay Hawthorne relates to the tort of negligence. In particular, it relates to the breach of duty of care and the ensuing damages.

A tort is deemed as a civil wrong done, whereby the actions of one person, harm the other. There are different torts in Australia, and a leading one amongst these is the tort of negligence (Statsky 2011). Negligence can be defined as a breach of duty of care, which a person P owes to person R, due to the actions which were undertaken by person P which had the potential of injuring or harming the person R. So, when P careless undertakes an activity which requires care towards R due to the possibility of P’s actions harming or injuring R, it would result in negligence. And when a case of negligence is present, the aggrieved party can claim damages for the harm or loss which they had to incur as a result of the undertaken actions of the tortfeasor (Trindade, Cane and Lunney 2007).

It is the duty of the plaintiff to show before the court of law that they have been injured or harmed due to the actions of the defendant, in order to claim the damages under a civil action brought before the court of law. In order to establish a case of negligence, the aggrieved party has to establish the presence of certain key elements, included in which is the duty of care (Kolah 2013). This is followed by proving that this duty of care had been contravened by party P. And lastly, there is a need to establish that the person R was actually harmed or damaged due to this failure of P in exercising his duty of care. Once all of these elements can be shown in a single claim, the aggrieved party is awarded damages by the court of law, based on the magnitude of damage cause to such person R (Kennedy 2009).

The first and foremost step, when it comes to making a case of negligence, is to show that a duty of care was present and that the same was owed by person P to person R (Lunney and Oliphant 2013). With regards to establishing that a duty of care was present, the leading English case of Donoghue v Stevenson [1932] AC 562 proves to be of help. In this case, Donoghue consumed a ginger beer, from a bottle which contained a dead snail. As a result of this consumption, she got sick and initiated legal action against Stevenson, who was the beer manufacturer. Her claims were initially discarded by the court as this drink had been purchased by Donoghue’s friend and not Donoghue herself. However, on further appeal it was held that the actions of Stevenson were such that they had the capability of affecting Donoghue, due to the customer-manufacturer relationship. The judges held that there was reasonable foreseeability in a contaminated drinks leading to the sickness of a consumer and that there was proximity between the parties, which had the capacity of impacting the other. As a result of this, the court held that the manufacturer was indeed liable and owed a duty of care towards Stevenson. And as a result of the breach of this duty of care, followed by injury of Donoghue, Stevenson was asked to compensate her for her losses.

Breach of Duty of Care

Another helpful case which helps in establishing the presence of duty of care is that of Caparo Industries plc v Dickman [1990] 2 AC 605. In this case, the court presented a threefold test, whereby in order to show the presence of duty of care, it had to be shown before the court that the injury was reasonably foreseeable, that there was proximity between the parties in such a manner that the actions of one, affected the other, and lastly, that if penalties are imposed, it would be just and reasonable (Latimer 2012).

Upon successfully showing that a duty of care had indeed been owed, the aggrieved party than has to show that the same had been contravened, in the sense that the defendant had failed in fulfilling his obligations (Martin and Lancer 2013). Vaughan v Menlove (1837) 3 Bing NC 467 was a case in which the haystack of the defendant caught fire as a result of the poor ventilation. On different occasions, the defendant had been warned that if he continued to leave his haystack, this was bound to happen. And on this, the defendant argued that using his best judgement, a risk of fire was not reasonably foreseeable. However, the court held that the judgment of the defendant was not enough and there was a need to apply standards as per a reasonable person. Hence, it has to be shown that a reasonable person would have undertaken the precautions owing to the reasonable foreseeability of such risk of harm.

The next step is to consider the consequences of the undertaken actions, or the lack of it for that matter (Turner 2013). In the case of Paris v Stepney Borough Council [1951] AC 367, Paris was already blind in one eye. And he was employed by the Council for undertaking certain work. The Council was aware of the condition of Paris and yet they did not provide him with the safety gear, particularly protective goggles. While working on a rusty bolt, a chip flew into the good eye of Paris, resulting in his complete blindness. The failure of the Council in providing the requisite safety gear was deemed as a breach of duty of care by the court of law which led to Paris being awarded damages for his blindness.

There is also a need to show that a reasonable person would have considered the degree of risk which was associated with the actions undertaken by a person (Gibson and Fraser, 2014). Bolton v Stone [1951] AC 850 is a case in which Stone was struck with a cricket ball, while she was standing outside her home, due to the ball flying away from the stadium, which was around hundred yards away from Bolton’s home. As per the facts of the last thirty years, it was depicted that the ball could only fly off outside the stadium six times only. So, as a reasonable person there was only a need to build the fence, this had been done. And so, a breach of duty of care was not upheld in this case.

Causation and Award of Damages

When it comes to the professionals, they are required to show a standard in their practice (Greene 2013). Rogers v Whitaker (1992) 175 CLR 479 was one of such cases in which the responded was not made aware of the consequences of the surgery which was being undertaken. This meant that she could not take the proper and informed decision when it came to the operation. As a skilled person, the doctor was under an obligation to deploy more care than an ordinary person. And due to these reasons, the doctor was held liable for negligence. With regards to the engineers, they are required to show a standard of competent practice. In Consultants Group International v John Worman Ltd (1987) 9 Con LR 46, Worman had agreed to constrict the abattoir, for the reasons of being a contractor, on strict conditions with regards to the designs which had been stated by the architects, i.e., by CGI. A consultant was hired by Worman for carrying out the work and this hired constructor, contravened the design conditions. It was held by the court that the duty of care of Worman towards CGI was equal to the duty of care of consultant towards Worman. And as a result of this, the consultant was held liable for compensating for the economic losses.

Upon the successful completion of the above two aspects, the final requirement is to show that the plaintiff had been actually harmed/ injured or had to bear a loss, in order for the remedies to be awarded under negligence. In order to show that damages need to be awarded to the aggrieved party, there is a need to show that there was a direct causation between the injury of plaintiff and the breach of duty of care of the defendant; and that the damages were foreseeable in a reasonable manner, which was substantial in nature and not remote (Emanuel and Emanuel 2008).


The damages are only to be awarded when they were reasonable foreseeable by a rationale individual and when the same were not too remote. In the case of Wagon Mound (No.1) [1961] AC 388, the plaintiff could not succeed in his claims of negligence due to the failure of the plaintiff in showing that a reasonable person would have predicted the kind of fire damage which actually took place. And so, no damages were awarded to the plaintiff. Though, in Wagon Mound (No.2) [1967] AC 61, the court held that the damage of oil spill in a second case, was different from the previous incident and this foreseeability led to the damages being awarded to the plaintiff.

There is a need to show direct causation between the injury and the damages, in terms of cause and effect based on the common sense and on the basis of the facts of the particular case (Martin and Lancer, 2013). In the case of Yates v Jones (1990) ATR 81, as a result of the defendant, the plaintiff got in an accident. Later on, she was offered heroine for dealing with her pain by a friend. When she sued Jones, she claimed the costs of her addition to heroine from Jones. However, the court held that there was a lack direct causation between the breaches of duty of care of Jones and between her addictions to heroine. Thus, the damages were not awarded to her.

The amount of damages which are awarded to the aggrieved party, i.e., the plaintiff, can at times be reduced or completely reduced. This is in the cases of contributory negligence. This is a famous defence under the negligence as per which the plaintiff is considered to have contributed towards the damage caused to them. And when such happens, the court deems it necessary to reduce the amount of remedies which were awarded to the plaintiff (Dongen, 2014). Froom v Butcher [1976] 1 QB 286 was a case in which the plaintiff was injured due to the accident which was caused due to the mistake of the defendant. The defendant had been drunk, which led to the accident. However, the plaintiff was not wearing the seatbelt at the time of the accident. This was deemed as the contributory negligence of the plaintiff and as a result of this, the damages which were awarded to the plaintiff were reduced by the value of £100 by the court.

Davies v Swan Motor Co [1949] 2 KB 291 was a case in which the plaintiff had been standing on the side of the dust lorry and this place was deemed as a dangerous place to stand on. While the lorry was travelling down a narrow road, the bus tried to pass the lorry and unfortunately, Davies was killed. The court held Davies as 1/5th responsible for the damage caused and accordingly, the damages was reduced.

This principle is born from the agency law and as per this principle, for the acts undertaken by the subordinates, the superior is held liable, particularly towards the third parties when it comes to the employer-employee relationship. In order for an employer to be held liable for the tortious acts of their employee, there is a need to prove negligence, followed by the presence of employer-employee relationship (Giliker 2010). In this regard, Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16 proves to be of help. In this case, the court held that different factors had to be applied for upholding the presence of employer-employee relationship, which was not present in this case. Apart from these two requirements, there is also a need to show that the undertaken tortious act by the employee was within the scope of their employment, for holding the employer liable.


As per the facts of the case study, it is very clear that Clay was the neighbour of Surtees and that his front office had been damaged badly, apart from his engine building workshop and the vehicles around it, which were charred from the fire which started at Surtees. The distance between the two places thus can be assumed to be very less, and there was proximity between the parties in a manner that the actions of one impacted the other. Applying the neighbours’ principle given in the case of Donoghue v Stevenson to the present case study, it can be established that the actions of Surtees affected Clay as a result of the proximity between the parties, making it reasonably foreseeable for Clay to be affected by acts of Surtees.   

Applying the threefold test given in Caparo Industries plc v Dickman, the injury was reasonably foreseeable due to the proximity between the parties, and where damages are awarded to clay for the loss they had to bear from the resulting fire, it would be just and reasonable. So, on the basis of both of these cases, Surtees owed a duty of care towards Clay.

As the duty of care has been established, the next requirement is to show its breach. For this, the reasonable foreseeability has to be established. There was a reasonable risk of overheating of machines resulting in fire and this is the reason why the machine was turned off on daily basis. Not shutting down the machine made it reasonably foreseeable to heat up and cause fire. To further this incident, the door of fire proof room was left open. As an engineer, the Surtees was required to deploy standard of professional care as per Rogers v Whitaker and Consultants Group International v John Worman Ltd. This was not done, resulting in fire, thus breaching the duty of care which was owed towards the Clay’s.

The failure of closing the fire proof door and not shutting down the machine was not what a reasonable person would have done as per Vaughan v Menlove. Hence, the failure in taking the precautions owing to the reasonable foreseeability of such risk of harm resulted in a breach of duty of care. This can further be strengthen with the case of Paris v Stepney Borough Council where there was a lack of deploying the requisite safety measure and this was deemed by the court as not upholding the duty of care. Even if Surtees cites that they had taken the reasonable care by installing the fire proof glass based on Bolton v Stone, it would not be upheld as firstly, the door was not closed, and secondly, fire was something which could spread across boundaries, unlike a cricket ball of the quoted case. Thus, it is very clear that the duty which Surtees owed towards the Clay’s was not upheld and was instead contravened.

As the first two requirements have been fulfilled, there is a need to show that damages would be justified in this case. It is very clear that the damage which Clay got was directly due to the fault of Surtees in shutting down the machine and in shutting down the fire proof door. This action caused fire which directly destroyed a lot of material of Clay. Unlike Wagon Mound (No.1), here it can be shown that the overheating kind of fire damage was reasonably predictable and so, as was held in the case of Wagon Mound (No.2) damages would be awarded to Clay’s. Further, the direct causation has been highlighted ample times in this case which would mean that unlike the case of Yates v Jones, damages would be awarded to the Clay’s.  But the costs which are sought by Clay for $15,000 for the cost of airfare tickets would not be liability of Surtees as this was not caused directly from the fire, based on Yates v Jones and only $460,000 would be awarded to Clay.


However, the amount of damages which would be awarded to Clay, as a result of negligence of Surtees would be reduced by their contributory negligence. Even though the fire was caused from the overheating of machines and leaving open the door by Surtees, but by leaving containers with residue solvent outside, Clay’s contributed to their injuries. And based on Froom v Butcher and Davies v Swan Motor Co, the damages awarded to Clay would be brought down proportionately.

The negligence has already been established. And the technician was employed at the workshop of Surtees which proves that unlike Stevens v Brodribb Sawmilling, he was an employee, which would make Surtees vicariously liable for the acts of their employee.

Conclusions

Hence, it can be concluded that Surtees indulged in negligence by breaching the owed duty of care towards Clay and would have to compensate Clay for their losses. But the amount of damages awarded to Clay would be reduced due to their contributory negligence, in proportion of their carelessness.

References 

Dongen, E.V. 2014. Contributory Negligence: A Historical and Comparative Study. Boston: Brill Nijhoff.

Emanuel, S., and Emanuel, L. 2008. Torts. New York: Aspen Publishers.

Gibson, A., and Fraser, D. 2014. Business Law 2014. 8th ed. Melbourne: Pearson Education Australia.

Giliker, P. 2010. Vicarious Liability in Tort: A Comparative Perspective. Cambridge: Cambridge University Press.

Greene, B. 2013. Course Notes: Tort Law. Oxon: Routledge.

Kennedy, R. 2009. Duty of Care in the Human Services: Mishaps, Misdeeds ad the Law. Victoria: Cambridge University Press.

Kolah, A. 2013. Essential Law for Marketers. 2nd ed. United States: Kogan Page Limited.

Latimer, P. 2012. Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited.

Lunney, M., and Oliphant, K. 2013. Tort Law: Text and Materials. 5th ed. Oxford: Oxford University Press.

Martin, J., and Lancer, D. 2013. AQA Law for AS Fifth Edition. 5th ed. Oxon: Hachette UK.

Statsky, W.P. 2011. Essentials of Torts. 3rd ed. New York: Cengage Learning.

Trindade, F., Cane, P., and Lunney, M. 2007. The law of torts in Australia. 4th ed. South Melbourne: Oxford University Press.

Turner, C. 2013. Unlocking Torts. 3rd ed. Oxon: Routledge.

Bolton v Stone [1951] AC 850

Caparo Industries plc v Dickman [1990] 2 AC 605

Consultants Group International v John Worman Ltd (1987) 9 Con LR 46

Davies v Swan Motor Co [1949] 2 KB 291

Donoghue v Stevenson [1932] AC 562

Froom v Butcher [1976] 1 QB 286

Paris v Stepney Borough Council [1951] AC 367

Rogers v Whitaker (1992) 175 CLR 479

Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16

Vaughan v Menlove (1837) 3 Bing NC 467

Wagon Mound (No.1) [1961] AC 388

Wagon Mound (No.2) [1967] AC 61

Yates v Jones (1990) ATR 81

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