Can Cliff and Mary sue Susan for negligence?

This article discusses the elements of a suit for negligence and applies them to a case study involving Cliff and Mary, who suffered damages caused by Susan's Bengal tiger, Benji. The article concludes that Susan did not breach her duty of care and is not liable for the damages suffered by Cliff and Mary.

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Business Law Assignment

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Answer 1
Issue
Key Issue:
Whether a suit for negligence can be filed by Cliff and Mary against Susan for the damages
suffered by them which caused due to Benji?
Rule
The tort of negligence is referred to a civil wrong in which a party can be held liable by the
court for breaching their duty of care. In case a person suffered an injury due to the
negligent actions of another person, then a suit can be filed against such person to recover
compensation for the injury. However, the suit of negligence can only be filed against the
party who owed a duty of care; in case a duty of care is not owed by the party then a suit for
negligence cannot be filed. The elements of a suit for negligence were given by the court in
Donoghue v Stevenson (1932) AC 562 case in which the modern law of the tort of negligence
was established by the court. The facts of this case include that the claimant went to a café
and ordered a ginger beer. The beer was served by the café owner in an opaque bottle in
which the drink cannot be seen by the party (Cantrill et al. 2013). In the drink, the remains
of a dead snail were present. After consuming the drink, the claimant becomes serious ill,
and she has to face a personal injury after drinking the remains of a snail. The claimant filed
a suit against the defendant because the remains of the snail were present in the drink due
to the negligence of the defendant.
The court provided its judgement based on the ‘neighbour test’ in which the court held that
the defendant is liable under the suit of negligence. The court provided that based on the
neighbour test, there is closeness in the relationship between the customer and the
manufacturer, thus, the manufacturer of the drink owed a duty of care towards the
customers who purchased their drink (Barker et al., 2012). This is a relevant case in the tort
of negligence since it established the key elements which are necessary to be present while
filing a suit for negligence. The first key element is the duty of care of the party against
whom the suit for negligence is filed. The duty must be owed by the party without which a

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suit for negligence cannot be filed against the defendant even if an injury is suffered by the
claimant due to his/her negligence. As given in Donoghue v Stevenson case, the neighbour
test is used by the court to determine whether a duty of care is owed by the party. The test
evaluated two key factors in order to determine whether a duty of care is owed by the party
or not. The first element is the reasonable foresight of the harm; if the party can reasonably
foresight that harm could occur to another party, then such party owed a duty of care to
mitigate such risk. The second element is the proximity in the relations; if there is closeness
in the relationship between the two parties, then they owed a duty of care to ensure that no
harm occurs to another party.
After establishing the element of a duty of care of the defendant, the parties are required to
establish whether such duty was violated by the defendant due to negligent actions. The
suit for negligence can only be filed if it is found that the defendant has failed to maintain an
appropriate standard of care which is expected from him by the law. In order to establish
whether the duty of care is breached by the party or not, the court uses the objective test
which was established in the case of Vaughan v Menlove (1837) 3 Bing N.C. 467. In this case,
even after giving warnings, the defendant failed to take appropriate care in order to protect
the haystack of the claimant (Stephenson 2012). Due to the breach of the duty of care, the
claimant suffered a loss. The defendant argued that he acted in his best judgement, and he
was not able to foresee the risk of fire. The court provided its judgement based on the
objective test that the best judgement of the defendant was not enough, and he failed to
maintain a standard of care which a reasonable person would take in such particular
situation. Thus, the defendant held liable by the court for breaching his duty of care.
Furthermore, in Mullin v Richards (1998) 1 WLR 1304 case, the duty of care of a child was
established by the court. In this case, two 15-year-old school girls were fighting with plastic
rules due to which a splinter went into the eyes of a girl which resulted in causing blindness.
A suit for negligence was brought against the girl based on her negligent action. The Court
of Appeal provided that the girl only expect to meet a standard of care which is expected by
a 15-year-old girl, thus, the court held that she did not breach her duty of care (Diaz 2018).
Another element of establishing a suit for negligence is causation which provides that a
direct link must be established between the negligent action of a party and the loss suffered
by the claimant. The court established the ‘but for’ test in the case of Barnett v Chelsea &

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Kensington Hospital (1969) 1 QB 428 in order to identify whether the loss suffered by the
party is caused due to the negligence of the defendant. In this case, a person went to the
hospital regarding vomiting and stomach pain. The doctor was not on duty at the time, and
he told on the phone to send the patient home, and he will contact him in the morning. A
few hours later, the patient died due to arsenic poisoning. The family of the patient filed a
suit for negligence against the doctor.
The court applied the ‘but for’ test to provide a judgement that the doctor is not liable for
negligence. The court provided that the death of the patient was not caused because the
doctor sent him home, thus, the injury was not caused due to the breach of the duty of care
by the doctor, and the family cannot claim damages from him. The last element of a suit for
negligence is that the damages must not be too remote. In the Wagon Mound No 1 (1961)
AC 388 case, the court provided its judgement based on the remoteness of the damages.
Due to the negligence of crew members, oil spread in the Sydney harbour. Workers were
welding on a wharf nearby, and they thought that the oil is not flammable, thus, the kept
welding. The oil caught fire resulting in causing serious damage to the wharf. A suit for
negligence was filed, however, the court rejected the claim was provided that the damages
suffered by the parties were too remote, therefore, they cannot claim for compensation for
the negligence of the party (Hodgson 2016). Furthermore, in case a suit for negligence is
filed against a party, then the party can rely on various defenses to eliminate or limit the
payment of damages to the claimant. The contributory negligence is referred to a complete
defence in a suit of negligence which provides that if a person suffered damages partly due
to own fault and partly due to the negligence of another party as given in the cases of Capps
v Miller (1989) 1 WLR 839 and Froom v Butcher (1976) QB 286.
The party has to prove that the plaintiff would not have suffered any injury if he/she not
also been negligent. The court evaluates the case to eliminate the liability of the defendant
or reduce it as per the contribution of the plaintiff. Another defense is that if the risk is
obvious and the defendant has warned the plaintiff regarding the risks in written, then it can
be used it as the defense for the suit of negligence. The voluntary assumption of risk is
another defense available for the defendant in the case of negligence in which the plaintiff
knew that risk involved in a certain process but proceeded anyway. In such a case, the
damages cannot be recovered by the defendant since the plaintiff accepted the risks

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associated with a particular activity. In order to implement this remedy, three elements
must be fulfilled by the parties. Firstly, the agreement regarding the acceptance of the risk
must be made voluntary by the party without external force. The agreement for acceptance
of such risk can be express or implied. In Nettleship v Weston (1971) 3 WLR 370 case, the
court provided that the damages of a party can be reduced if the party itself failed to
maintain a standard of care and accepts the risks associated with the activity (Greene 2013).
Similar views were given in the case of White v Blackmore (1972) 3 WLR 296 case. The
claimant must have the complete knowledge about the extent and nature of the risk as
given in Wooldridge v Sumner & Anor (1963) 2 QB 43 case.
Application
In this case study, Benji was a Bengal tiger which was kept by Susan in her house because
she uses her for her shows. Susan knew that although Benji is harmless, but she can cause
serious damages to another party. Thus, she kept her in a strong compound in her house in
order to ensure that she is not able to get out or cause harm to another party. When she
was not in the house, Kim entered the house and unlocked the compound of Benji due to
which Cliff and Mary suffered serious loss. Since they wanted to sue Susan under the tort of
negligence, they are required to establish all the elements of negligence. As per the
neighbour test is given in Donoghue v Stevenson case, a duty of care is owed by Susan since
Cliff and Mary were her neighbours. There is proximity in their relationship based on which
it is the duty of Susan to ensure that Benji is not able to cause harm to them. The damages
suffered by Cliff and Mary were caused because Benji went out of her compound.
As per the ‘but for’ test, the damages of Cliff and Mary were not occurred, if Benji would not
have gone out of her compound. The damages suffered by them were not too remote since
there were foreseeable because Benji is a dangerous Bengal tiger. However, Benji did not
come out of her compound due to the negligence of Susan. Susan knew her duty and
appropriate care was taken by him by keeping them into a strong compound. However,
Benji went out due to Kim when Susan was not at the house. Kim is a child, and she did not
understand the impact of her actions, thus, she did not owe a duty of care. The injuries
suffered by Cliff and Mary were not caused directly due to the breach of the duty of care by
Susan, thus, they cannot hold Susan liable for the loss suffered by them. The defenses such

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as a warning or voluntary assumption of risk did not apply to this case. Thus, Cliff and Mary
cannot hold Susan liable for the loss suffered by them which caused because Benji went out
of her compound.
Conclusion
In conclusion, a suit for negligence not be filed by Cliff and Mary against Susan since she did
not breach her duty of care, thus, she is not liable to pay for the damages suffered by them.

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References
Barker, K, Cane, P, Lunny, M & Trindade, F 2012, The law of torts in Australia, Oxford
University Press, Oxford.
Barnett v Chelsea & Kensington Hospital (1969) 1 QB 428
Cantrill, L, Counsel, S, York, HD & Congress, ML 2013, ‘Standard of care in the face of rapid
technological advance’, Australian Health and Medical Law News, vol. 127, pp. 9-19.
Capps v Miller (1989) 1 WLR 839
Diaz, MP 2018, ‘Children liability in negligence’, Journal of European Tort Law, vol. 9, no. 1,
pp. 25-53.
Donoghue v Stevenson (1932) AC 562
Froom v Butcher (1976) QB 286
Greene, B 2013, Course Notes, Routledge, Abingdon.
Hodgson, D 2016, The law of intervening causation, Routledge, Abingdon.
Mullin v Richards (1998) 1 WLR 1304
Nettleship v Weston (1971) 3 WLR 370
Stephenson, G 2012, Sourcebook on Tort Law 2/e, Routledge, Abingdon.
Vaughan v Menlove (1837) 3 Bing N.C. 467
Wagon Mound No 1 (1961) AC 388
White v Blackmore (1972) 3 WLR 296
Wooldridge v Sumner & Anor (1963) 2 QB 43