Analysis of Negligence in Relation to Injury Sustained by Cliff and Mary

Running head: BUSINESS LAW
Business Law
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BUSINESS LAW
Issue
Whether Cliff and Mary have the right to make a claim for negligence against Susan
for the injury sustained by them in relation to their property
Rule
The tort of negligence essentially has three elements which have to be attained for the
purpose for establishing it before law. Negligence is the action by which a person injures
another person unintentionally by failing to take reasonable care. There three primary factors
to be considered when analyzing a successful claim of negligence include, a duty of care,
breach of duty of care and causation of injury because of the breach of duty of care. The case
of Australian Knitting Mills, Ld. v. Grant [1933] 50 C. L. R. 387 had discussed the
provisions of negligence in Australia followed by the case famous English case Donoghue v.
Stevenson [1932] AC 562. In both the cases it was stated by the court that a reasonably
foreseeable injury will give rise to a duty of care. Reasonable foreseeable injury is
determined objectively. This means that it is not the defendant who has to reasonably foresee
the injury, but a prudent person who has substituted the defendant in the similar position.
There are various factor which the prudent person would take into consideration to foreseen
the injury. These factors include closeness and proximity to the injured person with the
defendant. In addition it needs to be noted that the plaintiff being injured is not a point of
determination, whether any person in the position of the plaintiff would suffer injury has to
be identified.
In line with the Perre v Apand (1999) 198 CLR 180 case, the factors which needs to be taken
into consideration for the determination of the duty of care include factors proximity and
extent of closeness between the plaintiff and the defendant, precedent cases where there was

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BUSINESS LAW
a duty identified, the ability of the person to control the injury and any legal policy which
asks to impose a duty.
In connection to the case of Ultramares Corp v Touche, Niven & Co 174 NE 441 (1931), the
judges had made a ruling that duty of care would not be present in situation where it leads to
a liability in an amount, time and class which cannot be determined. The ruling made by the
judges imply that although in theory a duty of care may be identified, if such duty leads to
indeterminate factors it would be denied by the courts.
The factor which requires analysis subsequent to duty identification is that of a “breach of
duty”. The tests which are deployed to analyze the breach include seriousness and likelihood
of injury, precaution taking burden and activity’s social utility.
The test deployed to analyze the breach is termed as the “objective test”. A prudent person
substitutes the defendant for the analysis of whether the care taken is reasonable. The test was
applied in the case of Blake v Galloway [2004] 3 All ER 315.
The provisions of seriousness had been discussed in Paris v. Stepney Borough Council
[1951] AC 367 by the Australian HC. In line with this case the rule which had been
determined states that duty of care is present even the breach of duty can cause serious harm
and reasonable care has not been taken.
The provision of likelihood of injury was dealt adequately by the case of Bolton v. Stone
[1951] AC 850. In line with this case it can be stated that the duty would be breached if the
probability of injury in case of failure to take reasonable care is high. Conversely, if the
probability is so low that a reasonable person will disregard the risk, a failure would not lead
to the breach of duty.
In line with the case of Latimer v. AEC Ltd [1953] AC 643 the rules for burden of taken
precautions had been discussed. The court made it clear that the law imposes a duty on a