Negligence Law: Liability of Performer and Duty of Care

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.