Legal Advice on Negligence Law for Damage to Property and Mental Shock

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Contents
Legal advice................................................................................................................................................2
Issue........................................................................................................................................................2
Applicable Law.......................................................................................................................................2
Application of Law..................................................................................................................................4
Conclusion...............................................................................................................................................7
Reference List.............................................................................................................................................8

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Legal advice
Issue
i. Whether Cliff and Mary sue Susan for the damage to their house, mini-tractor,
chicken coop, and pool, and for the loss of the chickens and eggs?
ii. Whether Cliff and Mary sue for mental shock of being attacked by Benji and the
shock of the house fire?
Applicable Law
The law of negligence is a very important piece of legislation. It is a law of tort and aims at
compensating the aggrieved parties who have suffered losses because of the wrongful actions of
the defendants.
An act is construed to be a negligent act when an obligation of protecting the plaintiff is not
comply with by the defendant as per the required standard resulting in breach and causing
damages to the plaintiff (Donoghue v Stevenson [1932]). A defendant is considered to be liable
under the law of negligence when the three essentials of the law of negligee are established
against the defendant. The same are: (Latimer, 2012)
i. Duty of care – A defendant should acknowledge that fact that no loss must be
incurred to the aggrieved/plaintiff because defendant’s actions. However, no liability
can be imposed on the defendant for every loss that is caused to the plaintiff (Anns v
Merton London Borough Council [1978]. The two required elements are:
a. Proximity – There is proximity amid the defendant and the plaintiff. The
proximity submits that the parties must be so connected so that the actions of the
defendant must make an impact on the plaintiff directly (Bourhill v
Young [1943]). There is should be nearness amid the two and both of them must
be considered to be the neighbor of each other.
b. Reasonable forseeability – It is also very necessary that the presence of the
plaintiff must be reasonably foreseeable by the defendant (Home Office v Dorset
Yacht Co Ltd [1970]. If the defendant cannot predict that the plaintiff is spotted at
a position wherein he can be considered as his neighbor, then, there cannot be any
kind of duty on the defendant (Topp v London Country Bus [1993].

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ii. Breach – There should be non-performance of duty by the defendant. When the
desired level and standard of care and protection is not met then there is breach. The
level must be measured as what a normal prudent man thinks in the given situation
(San Sebastian Pty Ltd v. Minister Administering the Environmental Planning and
Assessment Act 1979 (1987). The level of care caries with the situation, that is, if the
plaintiff is vulnerable then the duty is high, if the risk is high then the duty is higher
Reid v Commercial Club (Albury) Ltd [2014]. Thus it is the standard care which is
when not met results in the violation ((Roads and Traffic Authority of NSW v
Refrigerated Roadways Pty Limited [2009]
iii. Damages – It is necessary that because of the breach there should be injury sustained
by the aggrieved/ plaintiff (Australian Safeway Stores Pty Ltd v. Zaluzna (1987). But,
it is not every loss that must be compensated by the defendant. The main elements of
damage are:
a. Causation – the injury caused is the results of the defendants actions otherwise,
such loss does not comes in the arena of negligence (Overseas Tankship (U.K.)
Ltd\. Moris Dock and Engineering Co. Ltd (1961).
b. Remoteness – That the loss that is caused must not be remote in nature which
cannot be reasonably foreseeable by the defendant. Damages which are remote is
not covered under the law of negligence (Lindeman Ltd V Colvin [1946]
A defendant can protect himself by relying on the defense of volenti non fit injuria by
establishing that the plaintiff injury is because of his own fault. The defense of contributory
negligence can also be relied by proving that the loss that is caused is because of the negligence
of both the plaintiff and the defendant.
Application of Law
Susan is the owner of a land situated in Victoria, Australia. She has a pet Bengal Tiger, Benji,
and has requisites permissions to keep Benji with her. Benji and Susan work at the magic show
of Susan where the people of the local age care homes are fond of the performance of Benji. She
treats Benji as her small domestic cat.