Can Cliff and Mary sue Susan for negligence?

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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 &