The tort of negligence in Australia

Issue

The issue in the given case is that whether Meghan and Catherine can sue Harry and Will successfully, the employees of the Australian Post Department, under the tort of negligence. In the given case study, both Meghan and Catherine have suffered injuries due to escaping of the snakes from the parcel box of the Australian Post Department, which was found during sorting by Harry and Will.

In general, the term negligence is referred to as carelessness. The tort law of negligence in Australia covers the cases of negligence. As per the said law, the negligence is referred to as failure to exercise the due standards of care, which a prudent and a responsible man should have exercised in the concerned circumstances (Terry and Giugni, 2016). Negligence is a mode, which may lead to a number of harms, when the adequate precautions are not taken, while the same were required to do be taken. In order to establish that a party has been negligent in the performance of his or her duties, the following four elements must be fulfilled, as laid down by the torts of negligence.

Duty to take care: One of the significant conditions of the tort of negligence is the presence of a duty or responsibility on the part of the defendant, towards the plaintiff. The popular case law of the Donoghue v. Stevenson [1932] AC 562 highlights the same. Without the existence of a certain duty, the case of the negligence cannot be established.

Breach of the duty to take care: Yet another significant condition for the establishment of the liability under negligence is that it must be proved that the defendant has breached the duty to care, as was established in the first condition. The same was famously established in the case law of Voli v Inglewood Shire Council (1962) 110 CLR74.

Damage: Another essential requisite of for the tort of negligence is that the damages must have sustained by the plaintiff. The harm may be of physical nature, economic nature, or to the property of the plaintiff. The liability under the tort of negligence is based on the occurrence of the harm, without which the loss would not suffice.

Causation: The last requisite for the establishment of the negligence is that the breach of duty on the part of the defendant must be the causing factor towards the damages as mentioned above. The same was accorded in the Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303.

The elements of the tort of negligence

Vicarious Liability: Another essential element in the tort is the presence of the secondary liability on certain persons (ACAS, 2018). This is referred to as the Vicarious Liability. As the employer employee relationship is regarded as the agency relationship, there exists a secondary liability on the part of the employer for the deeds done or negligence caused by the employees in their capacity of the employment relationship (Mulheron, 2016).

The above rules when applied to the given case law, reveals the following information.

Firstly, Harry and Will were sorting the mails in the Australian Post Department in the capacity of the employees of the said department. Thus, it can be said that there was a duty to take care of the parcel boxes and to handle them with care and responsibility, on the part of the employees Harry and Will.

Secondly, the employees suspected the existence of something dangerous and illegal in the box. They suspected it out of the appearance of the box and the call to the police confirms their suspicion. However, instead of placing the box safely in the locked cupboard, they left it in as it is. Moreover, the element of suspicion confirms that they were aware of the foreseeable risk of the box containing something unusual. The improper handling of the box confirms the second principle that breach of the duty of care.

Lastly, as the box was not kept at a safe place, the snakes escaped out of it and caused damage to Meghan and Catherine. While Meghan suffered a heart attack, the snake bit Catherine while she was attempting to retrieve one of the snakes. Had the box was handled with care and diligence, the above damages would not have occurred. In addition, there is a direct relationship with the poor handling of the box and the incident.

Thus, the four principles of the tort of negligence are applied.

Further, to add it can be said that as both the employees were sorting the mails in the capacity of the employees at the Australian Post Department, and the incidents resulted. This establishes the secondary liability of the Australian Post Department in the event of the employer employee relationship with Harry and Will. The employer is responsible for the acts of the employees in light of the agency relationship.

Conclusion

As per the discussions carried out in the previous parts, on the lines of the issue, rules and the application, it can be said that the four key elements of the tort of negligence have been confirmed in the given case. Accordingly, Meghan and Catharine can sue Harry and Will for bring grossly negligent for their duties at work, because of which they sustained harm and damages. In addition to it, Meghan and Catherine can also sue the Australian Post Department, for the irresponsible behaviour of its employees.

Application of the tort of negligence in the first case

The issue in the given case law is to recognise whether there was a duty to take care on part of any person in the given circumstances, if yes, then to assess on whose part the duty existed. Further, to add, whether such duty has been breached by the parties concerned.

The duty to take care is the key element of the tort of negligence, around which the whole law revolves (Elaw Resources, 2018). If there would not be any duty to take care, the same would not be breached and the fact that the damages or harm was the result of the said breach cannot be established. According to the duty to take care, a person must adhere to the reasonable standards of prudence and care whiles the performance of the acts, when the risk of a loss is foreseen (Latimer, 2016). Whether there existed a duty for care would depend on the circumstances of each case. However as per a general principle as laid down in the tort of the negligence, few relationships are regarded to have an implied duty to take care, even if the same has not been agreed to or specifically mentioned. Few of these relationships are as follows.

• Doctor and Patient
• Employer and employee
• Parent and child
• Solicitor and Client
• Manufacturer and consumer, and many more.

It is said that there is an established duty of care in the above-mentioned relationships. In addition, as mentioned in the case law of Caparo Industries Plc v Dickman [1990] 2 AC 605, the following conditions must be fulfilled to regard existence of duty of care. These are-

• An existence of a proximate relationship between the parties concerned.
• The defendant must foresee a harm that may be caused, if the duty is not fulfilled.
• The duty further varies from case to case and must be just and fair.

On applying the principles of the duty to take care, the following points are noteworthy.

Firstly, that the parents of Pablo, i.e. Edvard and Frida, had no prior business experience and they were not competent in the English language too. In order to make the investment decisions, they trusted Merlin, the financial adviser working for the financial institution BNQ. Secondly, the parents of Palo had made the investments in the two units in the question, following the advice of Merlin, who in the capacity of financial adviser would have foreseen the materiality of the investment and the likelihood of earning of rents. Thirdly, that Merlin worked for the entity BQN, in the capacity of employee. Hence, it can be said that the elements as laid down by the Caparo Industries Plc v Dickman, have been followed.

Thus, it can be said that Merlin owed a duty to take care of the investments of the parents Edvard and Frida, as per the rule stated above. Further, he was in a capacity of foreseeing the risk of the losses for the said units in the said region. Thus, there was a duty to take care and Merlin breached the same by being careless, in spite of the risk of losses.

Conclusion

The discussions conducted in the previous parts enable to conclude that the duty to take care was on Merlin and the same was breached. In addition, the BQN being the employer of the financial adviser Merlin falls in the capacity of owing a secondary liability and duty to take care on behalf of its employee Merlin.

References

ACAS, (2018) Understanding what vicarious liability means for employers. [online] Available from:

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].

Latimer, P. (2016) Australian Business Law 2016. Sydney, NSW: CCH Australia Limited.

Mulheron, R. (2016) Principles of tort law. UK: Cambridge University Press.

Terry, A. and Giugni, D. (2016) Business and the Law. 6^th ed. Pyrmont, NSW : Thomson Reuters.

Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303

Voli v Inglewood Shire Council (1962) 110 CLR74.