Analysis of Negligence Law in a Case Involving a Bengal Tiger

This article analyzes the law of negligence in a case involving a Bengal tiger and provides insights on the duty of care, breach of duty, injury or damage, and defenses that a wrongdoer may take. The article discusses whether Mary and Cliff can claim from Susan for the damage suffered by them as per the law of negligence and whether Susan is liable to Mary and Cliff for the mental shock suffered by them due to the attack by Benji. The article concludes that while Susan had a duty of care towards Mary and Cliff, she cannot be held negligent as the damage caused was not reasonably foreseeable. However, Mary and Cliff can claim damages for mental shock from Susan.

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Contents
Solution1.....................................................................................................................................................2
Issue........................................................................................................................................................2
Relevant Law...........................................................................................................................................2
Application of law....................................................................................................................................4
Conclusion...............................................................................................................................................6

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Solution1
Issue
i. Can Mary and Cliff claim from Susan for the damage suffered by them as per the law
of negligence?
ii. Is Susan liable to Mary and Cliff for the mental shock suffered by them, due to attack
by Benji?
Relevant Law
Under law of negligence, a person is under duty to act in a safe manner so that his acts must not
cause any harm to anybody Donoghue v. Stevenson [1932]. In Donoghue v. Stevenson case, the
concept of neighborhood was evolved which states that a person who is neighbor of the
wrongdoer must be compensated by the wrongdoer. That neighbor can be anybody who is likely
to be affected by the acts of the wrongdoer. A person can be liable under this law only when he
is said to have duty of care with him towards neighbor and he carries breach of duty of care
which results in loss to the neighbor. (Latimer, 2012)
Duty of care is the precaution which a wrongdoer must take in performing his functions. It is the
duty of the wrongdoer to protect his neighbor and take care of the fact that no person should
suffer any injury due to his careless acts (Anns v Merton London Borough Council [1978]. The
duty of the wrongdoer is towards the anticipated loss or damage to the third person and towards
the neighbor who is foreseeable and in proximity with the wrongdoer (Bourhill v Young [1943].
In case the person is not reasonably foreseeable or not in proximity with the wrongdoer then the
duty of care cannot be said to be with the wrongdoer. Hence in order to establish duty of care
upon wrongdoer it is necessary that the said conditions must be satisfied (Topp v London
Country Bus [1993].
Breach of duty of care is the next step towards holding the wrongdoer negligent. It implies that
when the duty of care with the wrongdoer is breached by him then the said breach complies with
the next step of wrongdoer being negligent (San Sebastian Pty Ltd v. Minister Administering the
Environmental Planning and Assessment Act 1979 (1987). A duty of care is said to be breached
by the wrongdoer when he acts carelessly and does not take care which ought to be taken by him.

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In case care is taken by him but is not adequate or proper, then, there is breach of duty of care on
the part of the wrongdoer ((Roads and Traffic Authority of NSW v Refrigerated Roadways Pty
Limited [2009]. A certain level of care in one situation may not be sufficient if taken in some
other situation Reid v Commercial Club (Albury) Ltd [2014]. Level of care depends on the
situation and circumstances of case to case.
Injury or Damage must accrue from the breach of duty of care by the wrongdoer, it is then only
the wrongdoer can be held liable under the law of negligence (Australian Safeway Stores Pty Ltd
v. Zaluzna (1987). In case the injury is not suffered by the act of the wrongdoer to the third party
inspite of breach of duty of care on the part of the wrongdoer, then, in such a case the wrongdoer
cannot be held liable. But if the act of the wrongdoer in which damage occurred to the third
person is reasonably foreseeable then the act is covered under the preview of negligence. The
wrongdoer is liable when the damage caused is reasonably foreseeable and there is proximate
effect between his act and the damage or injury to the third party(Lindeman Ltd V Colvin [1946].
In case if the damage caused to the third party is too remote then the wrongdoer cannot be held
liable under the law of negligence (Overseas Tankship (U.K.) Ltd\. Moris Dock and Engineering
Co. Ltd (1961).
In case any of the above elements is not present in the act then the wrongdoer cannot be held
negligent. There are certain defenses that a wrongdoer may take in order to safeguard himself,
they are:
Contributory negligence on the part of the inured, that is, if injury is caused to the third person by
his own act as well apart from the act of the wrongdoer then in such case the wrongdoer is only
liable to the extent of negligence on his part and the injured is liable for such loss as caused to
him due to his own act. In this case the liability among the wrongdoer and the injured is
apportioned accordingly.
Voleti Non Fit Injury implies that the an injured who suffers injury inspite of having knowledge
of the fact that injury may occur, then, such injured cannot claim from the wrongdoer as he
inspite of knowing about danger assented to the same and suffered loss.

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Application of law
Susan had a Bengal tiger who is raised by her and she performs with it in magic show. As per
Susan, Benji is very docile but he has a unquenchable thirst for milk and chasing balls. She had
taken all the permits to keep Benji, but somehow thinks that people do not think that her tiger is
safe for them. She had built a strong compound to keep Benji.
Kim a small child who lives near to Susan came one day when Susan was not around and took
keys of Benji’s compound and opened the same. On opening the compound Benji pushed Kim
and jumped onto Cliff who was using a ball of string. Benji went to chase the string. Cliff fell
backward falling off the tractor and knocked the gear and tractor started moving and damages his
home. Cliff’s wife Mary dropped a pan of oil on the cook top, which lead to fire and damaged
their house. The tractor ran through their property and chicken coop thereby releasing all
chickens and fell into the swimming pool causing damage to both the tractor as well as pool.
Issue 1
Susan has duty of care being obligated upon her because:
i. She knows that Benji has unquenchable thirst for milk and chasing balls.
ii. Moreover it is also known to her that people not have the opinion that Benji is safe to
deal with.
iii. The duty of Susan is towards Mary and Cliff as both are reasonably foreseeable and
in proximity with Susan.
iv. There is likelihood of damage caused to them being neighbors of Susan.
Also there is breach of duty of care upon Susan as:
i. She had kept keys at such a place so that a small child could take them away and free
Benji;
ii. People did not consider Benji was safe so she should have taken proper care of Benji.
Though she kept Benji in a strong compound but left keys within the reach of the
child.

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iii. Moreover due to Benji’s desire for milk and chasing balls Benji could become violent
this was also known to Susan, hence Susan should had taken proper care of in respect
to same which she did not by keeping keys carelessly.
Hence the second element of negligence is also satisfied as reasonable and proper care which
ought to had been taken by Susan in such circumstances was missing and the level of care
was not up to the mark which thus lead to loss to the third party.
Now, the injury caused to the third party in this case is not foreseeable as Susan might had
though that Benji might attack somebody but this was not expected by her that somebody will
free Benji from the compound and there will be string and a ball with Cliff on tractor which will
cause so much damage to Mary and Cliff.
The damage caused to the neighbor must be reasonably foreseeable and there must be proximity
between the act of the wrongdoer and the damage caused to the injured.
In this case the damage was not foreseeable and there was no proximity between the act of the
wrongdoer and the damage caused to the injured, rather the damage caused was too remote and a
normal person in like situation must not had assessed that this can happen inspite of keeping
Benji in strong compound. The fire in the house was also unexpected as the fire occurred due to
unforeseeable circumstances and Mary thus was cooking that lead to fire. Hence the damage or
the injury caused to the pool and the tractor was also unexpected by Benji.
As the damage caused is remote in this case so Susan cannot be held negligent in this case and
rather On the other hand the parents of Kim were also at fault as they must had taken care of
their child who freed Benji.
Issue 2
Susan would be liable for the mental shock suffered by Mary and Cliff, as they had suffered
damage due to Benji, who thus lead to huge loss to their property. Benji lead to the damage
suffered to them and thus in turn they suffered mental shock. Benji was kept by Susan in the area
where other person was also living, so, she should have taken care of same and the attack by
Benji is rather a mental shock for any neighbor and they will be able to claim from Susan for
mental shock suffered by them.

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Conclusion
It can thus be said that the duty of care was established upon Susan as there were elements of
reasonable foreseeability and neighborhood concept are present in the given case law. Duty of
care was also breached by Susan as he had not taken reasonable care which ought to had been
taken by her as she had built a strong compound but kept the keys of same at a place which was
easily within the reach of child, as the care was taken by her by building a strong compound but
the level of care was not up to the mark as she kept the keys carelessly which were in reach of
child. But the last element of being negligent is not satisfied in the given case as the damage
caused to the property and things of Mary and Cliff was not reasonably foreseeable by the act of
Benji, rather there was no proximity between the damage caused and the act of Benji.
Hence Susan cannot be held negligent in this case.
But Mary and Cliff can surely claim damages for mental shock from Susan as due to the act of
Benji there is a huge loss to them which can lead to mental shock to any reasonable person.

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Reference List
Books/Articles/Journals
Paul Latimer, Australian Business Law. 2012. CCH Australia Limited.
Case laws
Anns v Merton London Borough Council [1978] AC 728
Australian Safeway Stores Pty Ltd v. Zaluzna (1987).
Bourhill v Young [1943] AC 92
Donoghue v Stevenson [1932].
Home Office v Dorset Yacht Co Ltd [1970] AC 1004;
Lindeman Ltd V Colvin [1946].
Overseas Tankship (U.K.) Ltd\. Moris Dock and Engineering Co. Ltd (1961).
Reid v Commercial Club (Albury) Ltd [2014].
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009]
San Sebastian Pty Ltd v. Minister Administering the Environmental Planning and Assessment
Act 1979 (1987).
Topp v London Country Bus [1993] 1 WLR 976