Negligence Law: Liability of Performer and Duty of Care

This article discusses the law of negligence and the duty of care imposed on the performer of an act. It also covers the liability of the performer for breach of duty of care and resultant damage. The article provides two case studies to explain the application of the law of negligence.

Contents
Solution1..........................................................................................................................................2
Issues............................................................................................................................................2
Relevant law.................................................................................................................................2
Application...................................................................................................................................3
Conclusion...................................................................................................................................4
Solution 2.........................................................................................................................................4
Issue.............................................................................................................................................4
Relevant Law...............................................................................................................................4
Application...................................................................................................................................5

Solution1
Issues
i. Whether Catherine can hold Harry and Smith liable for negligence?
ii. Whether Meghan can hold Harry and Smith liable for negligence.
Relevant law
The Law of negligence is part of the law of tort. The Law of negligence fastens the duty on the
performer of the act to perform his acts in such a manner so that nobody is injured by him. The
act by the performer must be carried with due care and diligence so that nobody is harmed by his
acts. The three ingredients to hold a performer liable under the tort of negligence are:1
i. Duty of Care – Under the Duty of Care, the performer of the act should perform his
acts in a proper and diligent manner, so, that his acts must not harm anybody2. The
basic requirements to fasten duty of care on the performer are:
a. A performer has the duty of care towards his neighbor. It is his duty to protect his
neighbor from any harm. This neighbor can be anybody who is in close proximity
to the performer. A person who might be affected by the acts of the performer is
the neighbor of the performer3.
b. The injured must be reasonably foreseeable, it is then only the duty of care can be
imposed on the performer4.
The duty of care is imposed upon the performer when the above ingredients are satisfied.
i. Breach of duty of care- The Breach of duty of Care is said to occur when the duty of
care imposed upon the performer is not taken care of by him. The proper care as per
the situation must be taken by the performer. The level of care varies with the
situation, that is, if the risk is more than the level of care must be higher. Also the
care must be adequate and proper otherwise the breach is said to occur5.
ii. Resultant Damage - Apart from the breach of duty of care, there must be Damage
caused or loss suffered by the injured due to said breach, it is then only the performer
can be held liable for negligence. If the loss is suffered to the injured but not due to
the act of the performer, then, the performer cannot be held liable for such loss. There
must be proximity between the act of the performer and the loss caused to the injured.
The damage caused must not be too remote and must be foreseeable6.
1 Paul Latimer, Australian Business Law. 2012. CCH Australia Limited.
2 Donoghue v Stevenson [1932].
3 Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394.
4 Council of the Shire of Sutherland v Heyman - [1985] HCA 41.
5 San Sebastian Pty Ltd v. Minister Administering the Environmental Planning and Assessment Act 1979 (1987) 61 A.L.J.R. 41.
6 Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 61 A.L.J.R. 180.

However, there are certain defenses that are available to the wrongdoer:
i. Contributory negligence - It states that when the injured himself contributes to his
own injury, then, in such case the compensation of the performer is reduced
proportionately.
ii. Volenti non fit injuria - When the injured knowingly assented to the risk after having
knowledge that he might get injured, then, in such case the performer is not liable for
the loss caused to the injured as he voluntarily assented to the danger.
Application
Will and Harry were employed at Australian post in mail sorting Centre. They noticed a bulging
parcel. Suspecting the parcel might contain something dangerous they placed the same in a
cupboard which was unlocked and inform the police regarding the same.
Will and Harry know about the fact that the parcel contains something dangerous which are
bulging in nature. Still they kept them in a unlock cupboard. Before arrival of police the snakes
escaped and went on to the street.
Now, Will and Harry has a duty of care against all the persons who may come in contact with the
snake as they can foresee such persons and are their neighbours. Also, by keeping the same in an
unlocked cupboard they have violated their duty of care.
Now,
Issue 1
A pedestrian named Megan was so distressed to see the snakes that she suffered heart attack.
Here the damage is too remote as nobody could had analysed or assessed that by looking at the
snake Megan might have suffered. So in this case, Megan will not be able to claim from Will and
Harry.
Issue 2
Catherine was also bitten by one of the snake. She was taken to hospital and doctor administered
her with drug which was not effective against the snake venom and due to the wrong
treatment given by the doctor she is now no longer able to walk.
In this case, the plea of contributory negligence on the part of doctor will hold good as the doctor
is negligent in giving her the wrong medicine. If she would had been given right medication then
Catherine would not have suffered damages. Hence Catherine will be able to claim from Will
and Harry but they can reduce their liability by taking plea of contributory negligence on the part
of doctor.

Conclusion
Will and Harry have liability towards Catherine which can be reduced proportionately but no
liability in case of Megan.
Solution 2
Issue
Whether BNQ or Merlyn have any duty of care towards Edward and his family?
Relevant Law
The duty of care is the main element that holds a doer liable for the injury sustained to the
injured.
Duty of care suggest that the doer of the act must take due and proper care and thus should not
perform his acts carelessly so as they could harm any third person. The duty of care exists7:
i. Against all the persons who are in close proximity to him and are his neighbor. The
neighbor might suffer because of the act of the doer directly. The neighborhood
principal was held in Donoghue v Stevenson8 which states that the doer has
responsibility towards each and every person who is near him and who might gets
affected by his acts9.
ii. The duty of care is fastened upon the doer when neighbor is reasonably foreseeable10.
Now, a person who has the expertise in any field must give proper and diligent advice to the
person seeking his advice as if his advice leads to economic loss to the person, then, in that case
there is breach of duty of care which ought to had been taken care of by the expert and is held in
Hedly v Heller11.
When a layman takes advice from expert and rely on such advice then the expert having
expertise in such particular field is duty bound to act with due care and diligence and reasonable
and proper care must be adopted by the expert while granting his services to the advice seeker as
the advice seeker is purely relying on the expert’s advice and is held in Shaddock v Parramatta
City Council12. 13
7 LawHandbook , Negligence. 2013. <http://www.lawhandbook.sa.gov.au/ch01s05.php>
8 Donoghue v Stevenson [1932]
9 Mcphersons Ltd v Eaton (2005) 65 NSWLR 187
10 Madbury triangle Shopping Centre Pty Ltd v Anzil (2000)
11 Hedly v Heller [1964] AC 465.
12 Shaddock v Parramatta City Council (1990)
13 Negligent Misstatement. 2013. <http://www.innovation.gov.au/SmallBusiness/LegalHelp/LegalTopics/Liability/Pages/
NegligentMisstatement.aspx>.

Application
Edvard and Frida had no business experience as both have been on cleaning jobs since 1989.
They relied on advice from their solicitor (Caveat) who gave them advice on investment issue.
Caveat suggested them to consult BNQ financial institution. They met Merlin who then proposed
various alternative investments in property. He suggested investing in northern New South
Wales as there was prospect of income and capital gain as Sydney properties have poor rental.
Merlyn showed university town and told them it was fully let out to students during year and to
overseas visitors during vacations. Merlin also offered that he will look after conveyancing at
low cost but told them not to tell anything to Caveat. Edvard and Frida bought two units but did
not got any rent for same and upon contacting Merlin at BNQ but got no response. They
contacted BNQ but were told Merlin had left the job with them and that Merlin was not
authorized to promote investment in real estate.
Now, Edvard and his family totally relied upon the expert advice of Merlyn who as per them was
well versed with the property business. Merlyn also knew that his advice will be relied upon by
Edvard and his family and then also he did not took due care and does not acted reasonably and
thus lead to loss to Edvard and his family.
BNQ also owed duty of care towards Edward and his family as Merlyn was employed under
BNQ, hence they relied on the company as well as Merlyn, hence BNQ is liable for the acts of its
employee. The plea of BNQ that Merlyn was not authorized to promote the investment will not
absolve the company from having duty of care against. Edvard and his family could not have
thought that Merlyn was not authorized represent BNQ. BNQ must keep a check on the acts of
its employees and thus BNQ was negligence in not keeping check on its employees and thus the
duty of care is established on part of BNQ and Merlyn.
Merlyn acted from the office of BNQ and for BNQ hence there is clear duty of care upon both
as the clients who are paying them are paying for their expertise in the field hence they cannot
absolve from the duty of care.
Conclusion
In this case Merlyn and BNQ owed with duty of care towards Edvard and his family as Merlyn
was representing BNQ and thus Edvard believing on Merlyn as a expert in the field, purchased
the property as per the expert advice of Merlyn.

Reference List
Books/Articles/Journals
Paul Latimer. Australian Business Law. 2012. CCH Australia Limited.
Case Laws
Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 61 A.L.J.R. 180.
Council of the Shire of Sutherland v Heyman - [1985] HCA 41.
Donoghue v Stevenson [1932].
Hedly v Heller [1964] AC 465.
Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394.
Mcphersons Ltd v Eaton (2005) 65 NSWLR 187
Madbury triangle Shopping Centre Pty Ltd v Anzil (2000)
Shaddock v Parramatta City Council (1990)
San Sebastian Pty Ltd v. Minister Administering the Environmental Planning and Assessment
Act 1979 (1987) 61 A.L.J.R. 41
Online Material
LawHandbook. Negligence. 2013. <http://www.lawhandbook.sa.gov.au/ch01s05.php>
Negligent Misstatement.2013.
<http://www.innovation.gov.au/SmallBusiness/LegalHelp/LegalTopics/Liability/Pages/
NegligentMisstatement.aspx>.