In the given case, Meghan and Catherine have sustained the physical injuries in the form of heart attack and the disability to walk respectively. This was because of the loose snakes that escaped from the parcel from the Australian Post Department. The issue is whether Meghan and Catherine can sue the employees of the Australian Post Department under the tort of negligence.
The law for the negligence in Australia has been prescribed under the Tort law for negligence. According to the tort for negligence, negligence has been defined as the failure of exercising diligence and due care that would have been reasonably exercised by a prudent person in the given circumstances (Latimer, 2016). The tort of negligence expressly covers the harm caused by carelessness. According to the tort of negligence, the first party (the plaintiff) must establish the following explained elements of negligence claims, in order to sue the second party (defendant), in negligence. The elements of fault have been widely established under the various case laws, the most popular being the Donoghue v. Stevenson [1932] AC 562.
Vicarious Liability: The term is used to denote the existence of the secondary liability in certain contracts (ACAS, 2018). The relationship of the employer and employee is that of an agency relationship and the indirect liability arises in the case of the employer- employee relationship. This is applicable on the grounds of the acceptance of the responsibility for the acts done by the subordinates. As a result, the employer can be made liable for the acts of the employee and this is applicable in cases of negligence under tort law too.
On application of the rules as stated above, the following findings must be noted.
Duty of care- The employees Harry and Will had suspected existence of some dangerous or illegal thing in the box. Their suspicion is well depicted by the fact that they called the police for the same. Thus, there existed duty to take care of the parcel on the part of Harry and Will, as responsible employees of the Australian Post Department.
Breach of Duty- The placing of the suspected box in an unlocked cupboard is the clear breach of the duty on the part of the employees. Being the employees of the Australian Post Department, it was anyway the duty of the employees to take the reasonable care of the parcel box, and thus to keep it safely and properly.
Causation- Meghan and Catherine sustained harm due to the escaping of the snakes from the box, which was not duly placed in a safe place by the employees. Thus, there is a direct impact of the breach of the duty causing harm to Meghan and Catherine.
Harm- As stated in the case study, while Meghan suffered a heart attack because she was distressed to see the snakes, Catherine was bitten by one of the snakes. Both Meghan and Catherine have sustained severe and grave injuries to be able to sue under the negligence.
Vicarious Liability: As the Australian post shares the employer employee relationship with Harry and Will, the employer will be secondary liable and responsible for the acts done by the employee, in the same capacity while on the duty. I the given case, Harry and Will were sorting out the mails when they came across the box and instead of keeping it properly, they left it in open. Thus, the department of Australian post is also liable for the acts done by its employees, due to the vicarious liability on its part.
Thus, as per the discussions conducted in the previous parts, it can be concluded that Meghan and Catherine can successfully sue the employees Harry and Will under the tort of negligence for the injuries sustained because of the escaping of snakes. On application of the rules of the relevant laws, it can be established that the given case study fulfils the criteria laid down in this behalf. Moreover, they both can also sue the Australian Post, as the same is equally liable for the negligence caused by its employees while on the employment.
The issue in the given case study is that whether there was an existence of duty of care and the liability on the financial institution or its employee and financial adviser Merlin, in the light of the given circumstances of the case study.
The duty of care is the essence of the tort of negligence. The absence of the duty of care will render the other elements of the tort, i.e. the existence of damage, harm, breach of the duty and others, to be meaningless. The duty of care refers to the responsibility to act with diligence and due care in the given circumstances, in way that a prudent person would do so (Kelly, Schwartz and Partlett, 2015). The existence of the duty to care varies from case to case, depending upon the events. However, the tort law has prescribed certain relationships, in which the duty of care is said to be implied (Mulheron, 2016). These relationships are that of-
In the above-mentioned relationships, law regards that the first person owes a duty to care towards the second person, even when it is not expressly mentioned about the same.
Apart from the above-mentioned implied relationships, there have been prescribed certain conditions to be fulfilled to regard that the duty of care exist in the given situation. The conditions were famously established in the case of Caparo Industries Plc v Dickman [1990] 2 AC 605. These have been listed as follows.
The fulfilment of all the three mentioned conditions, states that there existed a duty of care. In addition to this, the secondary liability arises for the employer, on account of the employer employment relationship. Thus, if an employee has a duty to care, the employer by default would be liable for the same and the acts done by the employee in the said capacity.
In the given case the family members were not acquainted with the English language and as per the background of the family member, they were not versed and capable enough of entering into business transactions on their own. As a result, the solicitor advised them to avail the services of the financial institution named BNQ. One of the employees of the said financial institution, Mr Merlin, the financial advisor provided inadequate and irresponsible services to the family members.
On application of the rules of the duty of care, it can be said that there existed a proximate nature of relationship between Merlin, being the financial adviser of the family and the family members. In addition to the above, being knowledgeable about the nature of the transaction, Merlin would have been aware of the consequences of the transactions that the family members had entered into, on the basis of the advice rendered. Thus, it can be said that the principles of the Caparo Industries Plc v Dickman, are being established and that there existed a duty of care on the part of Merlin, in the capacity of the financial adviser, to take reasonable and due care.
Conclusion
Thus, as per the discussions conducted in the previous parts it can be concluded that there was an existence of the duty of care on the part of Merlin. Being negligent towards performing his duty reasonably and prudently, he will be liable under the tort of negligence. In addition to the above, the employer entity BNQ will also be liable for the acts done by its employee.
References
ACAS, (2018) Understanding what vicarious liability means for employers. [online] Available from: https://www.acas.org.uk/index.aspx?articleid=3715 [Accessed on 09/09/2018]
Caparo Industries Plc v Dickman [1990] 2 AC 605
Donoghue v. Stevenson [1932] AC 562.
Elaw Resources. (2018) Negligence [online] Available from: https://www.e-lawresources.co.uk/Negligence.php [Accessed on 09/09/2018].
Kelly, K., Schwartz, V. E. and Partlett, D. F. (2015) Prosser, Wade, Schwartz, Kelly, and Partlett’s Torts, Cases and Materials. US: Foundation Press.
Latimer, P. (2016) Australian Business Law 2016. Sydney, NSW: CCH Australia Limited.
Mulheron, R. (2016) Principles of tort law. UK: Cambridge University Press.
Stickley, A. P. (2016) Australian torts law. LexisNexis Butterworths.
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303.
Vaughan v Menlove (1837) 3 Bing. N.C. 467
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