Analysis of Negligence Law in a Case Involving a Bengal Tiger

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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.