Whether Susan can be held liable under the suit of negligence filed by Cliff and Mary for the loss which they suffered?
The tort of negligence provides that a person can be held liable if another person suffers a loss due to the negligence of the party. Negligence is different from carelessness or thoughtlessness; in case a person owed a legal duty of care, and another party suffered an injury or loss due to the breach of such duty, then a suit for negligence can be filed. While claiming compensation from a party for his/her negligent actions, it is necessary that all the elements of the negligence must be present in the case. The key elements of negligence were given in the case of Donoghue v Stevenson (1932) AC 562 in which the modern law of negligence was established. In this case, the claimant suffered a personal injury which was caused by drinking a ginger beer which was manufactured by the defendant. The claimant ordered ginger beer in the café of the defendant in which the remains of a snail were present. After drinking the beer, the claimant suffered a personal injury which was caused due to the negligence of the defendant. The suit for recovery of damages was filed by the claimant that was accepted by the court. It was held that the injury was a result of the breach of duty by the defendant, thus, the claimant has the right to recover compensation from the defendant (Asuzu 2017). In this case, the court provided that while claiming for compensation in a suit of negligence, the parties are required to prove that a duty is owed by the defendant and due to a breach of such duty the claimant suffered a loss.
The neighbour test is used by the court in order to determine the duty of the defendant which evaluates the situation based on the proximity in the relationship of both parties and the reasonable foresight of the harm suffered by the claimant. In Topp v London Country Bus (1993) 1 WLR 976 case, the bus driver did not turn up for the shift due to which the bus was stolen by thieves. Due to the accident on the bus, a woman was killed. A suit for negligence was filed against the bus company by the husband. The court provided that the damages were not foreseeable based on which the suit for negligence cannot be filed (Dyson 2015). Moreover, the ‘Caparo test’ is another way based on which the court evaluates the duty of care of a party. The test was established in the case of Caparo Industries Ltd v Dickman (1990) 2 AC 605 case. This test also evaluates the duty of a party based on the fact that whether proximity exists in the relationship between the parties. The second element which is significant in the suit of negligence is the breach of duty by the defendant. While evaluating whether the duty of care is breached by the party or not, the court relies on the objective test. This test was established in the case of Vaughan v Menlove (1837) 3 Bing N.C. 467 case in which the claimant suffered substantial loss due to the fire caught in his haystack because of the negligence of the defendant.
The defendant argued in the court that he used his best judgement based on which he did not foresee the fire caught in the haystack. The court provided that reliance on the best judgement is not enough and the parties are required to take steps which a reasonable person would in the particular situation (Partington 2014). Thus, the objective test is used by the court to determine whether the duty is breached by the party or not. Another key element of the suit for negligence is causation which means that the damages suffered by the claimant must be caused directly due to the negligent actions of the defendant. The injury which is not caused due to the breach of duty by the defendant is not liable for compensation under the suit for negligence. While determining this element, the court applies the ‘but for’ test in order to identify whether the damages suffered by a party is caused due to the negligent actions of the defendant. In Barnett v Chelsea & Kensington Hospital (1969) 1 QB 428 case, the test was established which evaluates that the plaintiff would not have suffered any loss or injury but for the actions of the defendant the injury or loss has occurred. This test was used by the court while defining the negligence liability of the pet owner (Lynch 2016). In Lopez v Trujillo 397 P.3d 370 (Colo. 2017) case, the court provided that the pet owners are only liable towards people to ensure that their pets did not harm them, however, this duty did not extend to everyone. In this case, two pit bulls were chained behind the fences and they barked on an eight year old kid who was walking nearby.
Due to the barking, the kid got scared and starting running into the street. A van hit the kid while he was running in the street; his parents field a suit against the dog owner. The court provided that the owner is not liable because a standard of care was maintained by him to ensure that dogs did not cause damage to anyone (Gjelten 2018). The last element of negligence is that the damages which are suffered by the party must not be too remote or else the claim for negligence cannot be demanded by the party. The judgement was given by the court in The Wagon Mound no 1 (1961) AC 388 case is relevant to understand this element. The facts of this case provide the crew members of a ship failed to shut down the tap of oil due to which oil leaked into Sydney Harbour. Some workers were welding near a wharf when they saw the oil in the harbour. They thought that the oil is not flammable, and they continued their work. Due to the welding, the oil caught fire, and the wharf was damaged badly. A suit for negligence was filed in the court, but the court rejected the claim by providing that the damages were too remote based on which the claimant did not have the right to recover compensation for damaging the wharf by the defendant. In case all these elements are present, then a suit for negligence can be filed against the defendant. In the suit for negligence, the defendant can rely on certain defences in order to reduce the compensation paid to the party or eliminate it completely.
Firstly, a warning can be given to the claimant to take appropriate care in order to reduce the liability of the defendant. Moreover, the voluntary assumption of risk is another defence which is available for the defendant. This defence provides that if the claimant provides the consent to accept the risk, then the claimant did not have the right to hold the defendant liable for negligence. The defence can only apply if it is made voluntary by the claimant and a prior agreement is formed between the parties to accept the risk. As given in the judgement of Wooldridge v Sumner & Anor (1963) 2 QB 43 case, it was held that the claimant must have the complete knowledge of the risk in order to apply the provision of voluntary assumption of risk (Goodrich 2015). A similar judgement was given by the court in Smith v Charles Baker & Sons (1891) AC 325 case. Furthermore, contributory negligence is another defence available in the suit of negligence. If the damages suffered by the party caused due to the negligence of another party and partially due to his/her own fault, then the defendant has the right to rely on the defence of contributory negligence. The defence of contributory negligence was applied by the court in Pitts v Hunt (1990) 3 All ER 344 case.
In the given case, a substantial loss is suffered by Cliff and Mary due to Benji. Susan knew that Benji could be dangerous, thus, she ensures that Benji is locked in a strong compound. Based on the ‘Caparo test’, Susan owed a duty of care toward Cliff and Mary. All three parties were neighbours of each other due to which it is expected from Susan that she kept a standard of care to avoid causing harm to another party which is caused due to Benji. The damages which are suffered by both Cliff and Mary were caused as the result of the release of Benji from her compound. Thus, the element of causation is present in the case because the damages would not have occurred if Benji would remain in her compound. However, Susan has taken all the necessary measures which a reasonable person would in the particular situation to ensure that an injury is not suffered by Cliff and Mary or any other parties as discussed in Lopez v Trujillo case. However, Benji went out of her compound due to Kim who is the daughter of Cliff and Mary. Kim went to Susan’s house when she was not there and unlocked Benji.
Since the duty of care is not breached by Susan, a suit for negligence cannot be filed by the Cliff and Mary against her to recover damages for the loss suffered by them. Cliff and Mary should understand that Kim is a child who did not understand the consequences of her actions; therefore, they should ensure that she is not going alone to Susan’s house when she is not there. The defences of the negligence including contributory negligence and voluntary assumption of risk did not apply to this situation because the whole incident was caused due to Kim who did not owe a duty of care since she is just a child. The duty to maintain a standard of care was kept by Susan because she has completed her part. The damages which are suffered by Cliff and Mary are too remote because Susan cannot foresee the fact that Kim could unlock the compound of Benji when she is not home and release her which caused damages to Cliff and Mary. Thus, Cliff and Mary cannot demand compensation from Susan for the loss suffered by them.
Conclusion
Based on the analysis of relevant laws and facts of the case, it can be concluded that a duty of care was owed by Susan to ensure that she kept a standard of care to avoid causing damages to third parties due to Benji. However, such duty was not breached by her when the loss is suffered by Cliff and Mary due to release of Benji by Kim. The damages were too remote, and the duty of care was not breached, thus, Cliff and Mary cannot hold Susan liable for negligence and demand compensation for the loss suffered by them.
References
Asuzu, C 2017, Brief-Writing Masterclass, Partridge Africa, Bryanston.
Barnett v Chelsea & Kensington Hospital (1969) 1 QB 428
Caparo Industries Ltd v Dickman (1990) 2 AC 605
Chester v Afshar (2004) 3 WLR 927
Donoghue v Stevenson (1932) AC 562
Dyson, M 2015, Comparing Tort and Crime: Learning from Across and Within Legal Systems, Cambridge University Press, Cambridge.
Gjelten, EA 2018, ‘A Negligent Dog Owner’s Liability’, Nolo (online) 11 September 2018 <https://www.nolo.com/legal-encyclopedia/a-negligent-dog-owners-liability.html>.
Goodrich, O 2015, ‘Crazy Horses? Exploring the risk to spectators at Equestrian events’, Laws of the Game, vol. 1, no. 1, p. 10.
Lynch, J 2016, Consent to treatment, CRC Press, Florida.
Partington, N 2014, ‘Legal liability of coaches: A UK perspective’, The International Sports Law Journal, vol. 14, no. 3-4, pp. 232-241.
Pitts v Hunt (1990) 3 All ER 344
Smith v Charles Baker & Sons (1891) AC 325
The Wagon Mound no 1 (1961) AC 388
Topp v London Country Bus (1993) 1 WLR 976
Vaughan v Menlove (1837) 3 Bing N.C. 467
Wooldridge v Sumner & Anor (1963) 2 QB 43
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