Negligence and Breach of Duty of Care in Australia Post: A Case Study

This article discusses a case study involving negligence and breach of duty of care by two Australia Post employees. It also explains the principles of duty of care and the factors considered by the court in deciding the breach of duty of care. In addition, it covers the concept of negligent misstatement and the four-point test for proving a special relationship between disputing parties.

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CORPORATION AND ENTERPRISE LAW
PART – A
CASE STUDY
The case study involves two Australia Post employees, Harry and Will, working in a
Mail Sorting Centre in suburban Sydney, and case against them rests on allegation
of negligence and breach of duty of care. The essentials of the case, in short, are that a
large parcel arrived at their desk and they suspected that it may contain something
dangerous, suggest Bermingham & Brenan, (2018). They reported the matter to the
local police and placed the parcel in an unlocked cupboard. Harry and Will’s suspicion
was correct, as the parcel contained illegally smuggled snakes, which escaped from the
parcel before the police could take action.
In Australia, Tort law rests largely on common law and on legislation to a lesser extent.
In NSW, negligence was included into legislation through common law. However, for
judging claims of negligence, the NSW authorities and courts are now governed by
the Civil Liability Act, 2002. It is very important for the claimant to prove that
the negligent party (Harry & Will in this case study) knew the risk of harm and as
reasonable persons would have followed precautions for controlling the risk, if faced
with circumstances similar to those of the claimant, as per Steele, (2014).
Moreover, in NSW, in order to file a claim of negligence, the claimant is required to
furnish proof of the following three factors –
A. There existed a duty of care between the claimant and the negligent person.
B. The negligent person (Harry & Will in this case study) breached the duty of care.
C. Damage/injury suffered by the claimant resulted from the breach of duty.
Let me first explain Duty of Care to Meghan and Catherine. In NSW negligence can
only be established on the basis of relationship existing between Meghan and Catherine
(the claimants) and Harry and Will (the negligent parties), as per Greene, (2013).

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Courts usually recognize an existence of duty of care between the following
relationships:
o An employee’s with the employer.
o Between an owner and its tenant.
o A manufacturer’s with its customer.
o A patient’s with its doctor.
o A student’s with its teacher.
o A road user’s to a vehicle owner.
In general, assert Horsey & Rackley, (2017), the principles of duty of care have been
broadened after the English case of Donoghue vs Stevenson, which is considered to have
introduced responsibilities of duty of care. Although in exceptional circumstances, the
court may agree that a duty of care existed between the parties through a previously
unrecognized relationship, explains Mulheron, (2016).
ADVICE TO PARTIES
In NSW, in cases involving negligence, Meghan and Catherine will be required to prove
that a breach of duty of care occurred and to also establish that the standard of care
expected from Harry and Will was not met by them. Moreover, as I have explained
above, the breach of duty of care is decided by the courts on a case-by-case basis. When
the court shall decide what precautions must be taken by a reasonable person, suggest
Robbenolt & Hans, (2016), the court is bound to consider all or one of the following
factors –
o Likely level of severity of the harm/damage caused to the claimant.
o Difficulty level of the measures to be taken for avoiding the harm/damage.
o Probable level of the harm/damage if negligent party did not take care.
The court shall also question Meghan and Catherine about the reasonable steps they
took, when confronted with the risk of harm/damage, for prevention of the harm
occurring. The claimant must satisfy the court about the means adopted for taking
minimum precautions so as to reduce the degree of harm/damage suffered. It does not
seem that due diligence was done by Catherine. She tried to catch a snake and
consequently was bitten by it. She suffered severely from the snake’s venom as the

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medicine administered by the hospital doctors did not prove effective in curing her. And
Meghan, already a hearth patient, suffered a heart attack on seeing the snake. Although
the snake did not harm her.
On the part of the negligent parties (Harry and Will), it has already been established that
they took the precaution of putting the parcel in a cupboard and informing the police.
They could not have knowledge of the contents in the parcel, as the authority to open
the parcel rests with the police. As I stated above, the court is going to study the merits
and demerits of both, the plaintiff as well as the defendant. It is going to be difficult for
the plaintiffs (Meghan and Catherine) to satisfactorily prove any fault on the part of the
defendants (Harry and Will), as the duty and standard of care on areas outside the
jurisdiction of their working area was not the primary responsibility of Harry and Will.
PART – B
CASE STUDY
In NSW, a tort of negligent misstatement is defined as and I quote “an inaccurate
statement made honestly but carelessly usually in the form of advice given by a party
with special skill/knowledge to a party that doesn’t possess this skill or knowledge"
Unquote. As a legal advisor, I have come across it many a times and I had to tackle the
concept by admitting that this area of the tort has emerged as a separate branch of law
though all legal councilors still agree that the basic fundamentals of this tort are required
to be present for proving its stature, as per Bermingham & Brenan, (2018). But I have
always believed that a negligent misstatement must take into account the aspect of the
existence of a special relationship between the disputing parties.
In this case study of Pablo, according to Mulheron, (2016); Horsey & Rackley, (2017),
the party which suffered financial crisis and Merlin, the Financial Advisor who created
the financial mess does emphatically establish this special relationship. Merlin, being a
financial advisor, possessed specialist financial skills/knowledge and because of this the
plaintiff had sought his services for arriving at a sound financial decision. Since Merlin
provided information across to Pablo which later proved to be detrimental to the

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financial interests of Pablo, Pablo is entitled to seek remedy from a Court of Law for
justified damages/compensation, as per Greene, (2013).
On the legal front, we expect the Court to proceed as per the four point test that allows
Pablo to prove that there indeed was a special relationship between the disputing parties,
assert Robbenolt & Hans, (2016).
1. The defendant (Merlin) agrees that plaintiff (Pablo) sought his services as he was
possessing specialist skill/knowledge in his chosen profession.
2. The plaintiff fully trusted the advice/information provided to him by the defendant.
3. The parties exchanged information for the purpose of undertaking a valuable
business transaction.
4. The defendant also had the realization that plaintiff intended to fully act as per the
advice/information given.
5. Under the given circumstances, it was pertinent for the plaintiff to rely on the
advice/information given by the defendant.
CONCLUSION
The facts provided to the court have definite proof that the funds invested by Pablo
became insolvent soon after investing as per Merlin’s advice and Pablo suffered a huge
loss. It is for the Courts to take into consideration this fact and form grounds to process
a claim under negligent misstatement as the defendant totally failed in his duty of care
and the standard of care was breached. The plaintiff and his uneducated parents were
victims of the defendants, who not only advised them wrongly but also brought them
into a financial mess, leaving them with huge losses.
In conclusion, this appeal rests on the grounds that the court is concerned with allowing
compensation to the plaintiff as all facts point to the fact that the defendant’s actions led
to the loss suffered by the plaintiff.
LIST OF REFERENCES

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Bermingham, V. and Brenan, C. 2018, Tort Law Directions. Oxford University Press,
Oxford.
Greene, B. 2013, Course Notes: Tort Law. Routledge, Oxon.
Horsey, K. and Rackley, E. 2017, Tort Law. Oxford University Press, Oxford.
Mulheron, R. 2016, Principles of Tort Law. Cambridge University Press, Cambridge.
Robbenolt, J.K. and Hans, V.P. 2016, The Psychology of Tort Law. NYU Press, New
York.
Steele, J. 2014, Tort Law: Text, Cases, and Materials. Oxford University Press, Oxford.