Duty Of Care In Tort Of Negligence: Application And Relevant Law

Whether Catherine can hold Harry and Smith liable for negligence?
Whether Meghan can hold Harry and Smith liable for negligence.

Issues

The Law of negligence is part of the law of tort. The Law of negligence fastens the duty on the performer of the act to perform his acts in such a manner so that nobody is injured by him. The act by the performer must be carried with due care and diligence so that nobody is harmed by his acts. The three ingredients to hold a performer liable under the tort of negligence are:

Duty of Care – Under the Duty of Care, the performer of the act should perform his acts in a proper and diligent manner, so, that his acts must not harm anybody. The basic requirements to fasten duty of care on the performer are:
A performer has the duty of care towards his neighbor. It is his duty to protect his neighbor from any harm. This neighbor can be anybody who is in close proximity to the performer. A person who might be affected by the acts of the performer is the neighbor of the performer.
The injured must be reasonably foreseeable, it is then only the duty of care can be imposed on the performer.

The duty of care is imposed upon the performer when the above ingredients are satisfied.

Breach of duty of care- The Breach of duty of Care is said to occur when the duty of care imposed upon the performer is not taken care of by him. The proper care as per the situation must be taken by the performer. The level of care varies with the situation, that is, if the risk is more than the level of care must be higher. Also the care must be adequate and proper otherwise the breach is said to occur.
Resultant Damage – Apart from the breach of duty of care, there must be Damage caused or loss suffered by the injured due to said breach, it is then only the performer can be held liable for negligence. If the loss is suffered to the injured but not due to the act of the performer, then, the performer cannot be held liable for such loss. There must be proximity between the act of the performer and the loss caused to the injured. The damage caused must not be too remote and must be foreseeable.

However, there are certain defenses that are available to the wrongdoer:

Contributory negligence – It states that when the injured himself contributes to his own injury, then, in such case the compensation of the performer is reduced proportionately.
Volenti non fit injuria – When the injured knowingly assented to the risk after having knowledge that he might get injured, then, in such case the performer is not liable for the loss caused to the injured as he voluntarily assented to the danger.

Will and Harry were employed at Australian post in mail sorting Centre. They noticed a bulging parcel. Suspecting the parcel might contain something dangerous they placed the same in a cupboard which was unlocked and inform the police regarding the same.

Will and Harry know about the fact that the parcel contains something dangerous which are bulging in nature. Still they kept them in a unlock cupboard. Before arrival of police the snakes escaped and went on to the street.

Now, Will and Harry has a duty of care against all the persons who may come in contact with the snake as they can foresee such persons and are their neighbours. Also, by keeping the same in an unlocked cupboard they have violated their duty of care.

Now,

Issue 1

A pedestrian named Megan was so distressed to see the snakes that she suffered heart attack. Here the damage is too remote as nobody could had analysed or assessed that by looking at the snake Megan might have suffered. So in this case, Megan will not be able to claim from Will and Harry.

Issue 2

Catherine was also bitten by one of the snake. She was taken to hospital and doctor administered her with drug which was not effective against the snake venom and due to the wrong treatment given by the doctor she is now no longer able to walk.

In this case, the plea of contributory negligence on the part of doctor will hold good as the doctor is negligent in giving her the wrong medicine. If she would had been given right medication then Catherine would not have suffered damages. Hence Catherine will be able to claim from Will and Harry but they can reduce their liability by taking plea of contributory negligence on the part of doctor.

Conclusion

Will and Harry have liability towards Catherine which can be reduced proportionately but no liability in case of Megan.

Whether BNQ or Merlyn have any duty of care towards Edward and his family?

The duty of care is the main element that holds a doer liable for the injury sustained to the injured.

Duty of care suggest that the doer of the act must take due and proper care and thus should not perform his acts carelessly so as they could harm any third person. The duty of care exists:

Against all the persons who are in close proximity to him and are his neighbor. The neighbor might suffer because of the act of the doer directly. The neighborhood principal was held in Donoghue v Stevensonwhich states that the doer has responsibility towards each and every person who is near him and who might gets affected by his acts.
The duty of care is fastened upon the doer when neighbor is reasonably foreseeable.

Now, a person who has the expertise in any field must give proper and diligent advice to the person seeking his advice as if his advice leads to economic loss to the person, then, in that case there is breach of duty of care which ought to had been taken care of by the expert and is held in Hedly v Heller.

Relevant law

When a layman takes advice from expert and rely on such advice then the expert having expertise in such particular field is duty bound to act with due care and diligence and reasonable and proper care must be adopted by the expert while granting his services to the advice seeker as the advice seeker is purely relying on the expert’s advice and is held in Shaddock v Parramatta City Council.

Edvard and Frida had no business experience as both have been on cleaning jobs since 1989. They relied on advice from their solicitor (Caveat) who gave them advice on investment issue.

Caveat suggested them to consult BNQ financial institution. They met Merlin who then proposed various alternative investments in property. He suggested investing in northern New South Wales as there was prospect of income and capital gain as Sydney properties have poor rental. Merlyn showed university town and told them it was fully let out to students during year and to overseas visitors during vacations. Merlin also offered that he will look after conveyancing at low cost but told them not to tell anything to Caveat. Edvard and Frida bought two units but did not got any rent for same and upon contacting Merlin at BNQ but got no response. They contacted BNQ but were told Merlin had left the job with them and that Merlin was not authorized to promote investment in real estate.

Now, Edvard and his family totally relied upon the expert advice of Merlyn who as per them was well versed with the property business. Merlyn also knew that his advice will be relied upon by Edvard and his family and then also he did not took due care and does not acted reasonably and thus lead to loss to Edvard and his family.

BNQ also owed duty of care towards Edward and his family as Merlyn was employed under BNQ, hence they relied on the company as well as Merlyn, hence BNQ is liable for the acts of its employee. The plea of BNQ that Merlyn was not authorized to promote the investment will not absolve the company from having duty of care against. Edvard and his family could not have thought that Merlyn was not authorized represent BNQ. BNQ must keep a check on the acts of its employees and thus BNQ was negligence in not keeping check on its employees and thus the duty of care is established on part of BNQ and Merlyn.

Merlyn acted from the office of BNQ and for BNQ hence there is clear duty of care upon both as the clients who are paying them are paying for their expertise in the field hence they cannot absolve from the duty of care.

Conclusion

In this case Merlyn and BNQ owed with duty of care towards Edvard and his family as Merlyn was representing BNQ and thus Edvard believing on Merlyn as a expert in the field, purchased the property as per the expert advice of Merlyn.

Reference List

Books/Articles/Journals

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

Case Laws

Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 61 A.L.J.R. 180.

Council of the Shire of Sutherland v Heyman – [1985] HCA 41.

Donoghue v Stevenson [1932].

Hedly v Heller [1964] AC 465.

Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394.

Mcphersons Ltd v Eaton (2005) 65 NSWLR 187

Madbury triangle Shopping Centre Pty Ltd v Anzil (2000)

Shaddock v Parramatta City Council (1990)