Can Mary and Cliff claim from Susan for the damage fto their mini-tractor, chicken coop, house, pool, eggs and chicken?
Can Mary and Cliff claim from Susan for mental shock due to attack by Benji and the shock suffered by them due to fire in their house?
The Law of tort is very wide and covers a lot of laws, one of which is the law of Negligence. The law of negligence was developed in order to protect the injured, who suffers injury due to no fault on his part and thus compensation must be provided to the injured by the person who is the defaulter. Law of Negligence is made in order to compensate injured when he faces loss. It puts obligation upon the defendant to act in a proper and careful manner so that no person is injured by his acts. The law of Donoghue v. Stevenson (1932) leads to the development of negligence. (Gibson & Ase 2008)
A defendant is considered to be negligent when three ingredients of negligence are met: (Norman 2004)
Further, it is very important to imposed duty of care against the defendant provided the neighbor/plaintiff must be the person who is foreseeability by the defendant and is held in the leading case of Tame v New South Wales (2002).
There are two defenses that are available to the defendant by which the defendant can reduce or skip the liability under the law of negligence.
In case the above defenses are proved by the defendant then he can get away from the liability or get the liability reduced accordingly.
Susan has a bush land in Victoria. she was having a pet which is Bengal Tiger with whom she lived away from crowded place. She uses Benji to perform in local age care homes. She has all the permits which were required to keep Benji. Benji is docile but he has thirst for milk and also likes chasing of the balls with strings. Susan had a strong compound and keeps Benji there only. Susan realizes that outsiders may not think that Benji was safe for them.
Now, there are various acts that took place and which require independent analysis in order to under the liability of Susan.
Claim of Mary and Cliff – Susan for the damage to their mini-tractor, chicken coop, house, pool, eggs and chicken?
Now, it is submitted that Kim, who was a small child, was the neighbor of Susan. He comes to see Benji when Susan is at home. Also, Cliff and Mary were the parents of Kim who are the neighbors of Susan.
It is submitted that Susan owns a duty of care towards all the three, that is, Kim, Cliff and Mary.
It is submitted that Suisan is aware of the presence of Kim, Cliff and Mary. Susan can reasonably foresee the presence of all the three, thus, as per Tame v New South Wales there is reasonable forseeability. Also, Suisan is aware that she has kept a pet who is very dangerous in nature. she is also aware that of anything dangerous is committed by Bejni then the same might affect Cliff, Kim and Mary as they are living in the same locality. Thus, there is closeness amid Susan with all these three persons considering the fact that Kim visits the house of Susan to play with Benji. Thus, there is proximity amid Susan and all the three other individuals and thus by applying the law in Donoghue v. Stevenson, Susan is sharing a relationship of neighborhood with them
Thus, since there is presence of reasonable forseeability and proximity, thus, Susan owns a duty of care against all these three persons.
But, one day Susan was not at her home and Kim came over to her house and got the keys of compound and opened it. It is submitted that since a small child has the ability to take the keys of the compound of Benji, thus, it can be interpreted that the level of care that is needed in the given situation, considering a fact that a Bengal Tiger is kept by Susan, is not met. As per Blyth v Birmingham Waterworks Co the level of care that is expected from Susan is not comply with. so there is breach of duty of care.
Now, when Kim opened the door, Benji jumped out and start looking for milk and pounced and pushed Kim. Now, Susan can be held liable for the damage to the mini-tractor, chicken coop, house, pool, eggs and chicken provided the elements of damages are proved:
It is submitted that Benji saw Kim’s father Cliff while Cliff was marking a new vegetable garden with a ball of string. Benji went on to chase the string. Cliff who was climbing on the tractor having ball of string did not noticed that Benji was coming towards the tractor. Benji as a result jumped on the tractor for taking string from Cliff’s hand but Cliff fell by which the gear of tractor was knocked into drive.
It is submitted that the fire that is caused is not because of the acts of Benji but because if an unarmed tractor. This loss is very remote and thus this loss is not covered under the law of negligence;
Further,
Thus, it is submitted that Susan cannot be held liable for the losses that are caused to Mary and Cliff mainly because such losses were too remote to predict and were not because of the breach of duty of care on the part of the Susan. So, Mary and Cliff cannot sue Susan for such losses.
Because of the escape of Benji, both Cliff and Mary were in mental shock as they had been attacked by Benji and the shock of fire in the house. It is submitted that this loss can be anticipated by Susan as it was very obvious that any reasonable person will come in shock after seeing a Bengal tiger in front of them unarmed. Thus, this damage can be reasonable predictable by Susan and is caused because of the breach of duty of care on the part of Susan. Thus, Cliff and Mary can sue Susan for mental shock.
But, Susan can prove that the loss that is caused to them were mainly because they were aware that a Bengal tiger is living next to them and still they take no action to get rid away from such danger. Thus, they has also contributed to the loss that is caused to them/ thus, Susan can rely on the defense of contributory negligence.
Conclusion
Thus, Susan is not liable for any other loss apart from the loss of mental shock that is incurred to Mary and Cliff because of the escape of Benji.
References
Gibson and Ase 2008, Business Law, Pearson Education Australia, Prentice Hall 3rd Ed.
Norman, K 2004, “Who then in law is my neighbour?” <https://eprints.qut.edu.au/5213/1/5213_1.pdf>;
McLure, CJ 2008, A Practical Guide To The Resolution Of Causation Issues In Negligence. < https://www.aila.com.au/docs/default-source/speaker-papers/a-practical-guide-to-the-resolution-of-causation-issues-in-negligence.pdf?sfvrsn=2>;
Case laws
Bolton v Stone (1951).
Blyth v Birmingham Waterworks Co (1856)
Donoghue v. Stevenson (1932).
Joslyn v Berryman [2003].
South Australia Asset Management Co v York Montague (1996).
Tame v New South Wales (2002)
Online Material
The Law Hand Book, 2014, Duty of Care. <https://www.lawhandbook.org.au/handbook/ch06s03s02.php>;
The Law vision, 2008, The Law of Tort.< https://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf>;
Essay Writing Service Features
Our Experience
No matter how complex your assignment is, we can find the right professional for your specific task. Contact Essay is an essay writing company that hires only the smartest minds to help you with your projects. Our expertise allows us to provide students with high-quality academic writing, editing & proofreading services.Free Features
Free revision policy
$10Free bibliography & reference
$8Free title page
$8Free formatting
$8How Our Essay Writing Service Works
First, you will need to complete an order form. It's not difficult but, in case there is anything you find not to be clear, you may always call us so that we can guide you through it. On the order form, you will need to include some basic information concerning your order: subject, topic, number of pages, etc. We also encourage our clients to upload any relevant information or sources that will help.
Complete the order formOnce we have all the information and instructions that we need, we select the most suitable writer for your assignment. While everything seems to be clear, the writer, who has complete knowledge of the subject, may need clarification from you. It is at that point that you would receive a call or email from us.
Writer’s assignmentAs soon as the writer has finished, it will be delivered both to the website and to your email address so that you will not miss it. If your deadline is close at hand, we will place a call to you to make sure that you receive the paper on time.
Completing the order and download