Can Cliff and Mary recover their damages by filing a suit of negligence against Susan?

This article discusses the elements of negligence and defences available in a suit of negligence. It applies these elements to a scenario where Cliff and Mary suffer damages due to the release of a Bengal tiger from Susan's house. The article concludes that Cliff and Mary cannot recover their damages from Susan as she did not breach her duty of care and the damages suffered were too remote.

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Business Law Assignment

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Question
Issue
Can Cliff and Mary recover their damages by filing a suit of negligence against Susan? Did
Susan have any defences available in case of suit of negligence?
Rule
While filing a lawsuit for recovering the damages suffered due to the negligence of another
party, there are certain elements which have to establish by the court. The court evaluates
these elements while determining whether the party is liable to pay for the compensation or
not. These elements were given by the court in Donoghue v Stevenson (1932) AC 562 case
which has become a key part of the modern law of negligence. Firstly, the party against
whom a suit for negligence is filed to recover the damages by another person must owe a
duty of care. This duty is referred to a standard which the party is expected to maintain while
doing or not doing certain act. A person is held liable to pay compensation for the loss
suffered by another individual if he/she did not owe a duty of maintaining a standard of care.
In the case of Donoghue v Stevenson, a duty was breached by the party based on which the
suit for negligence was constructed. The claimant went to a café and ordered a ginger beer.
The beer comes into an opaque bottle due to which it was not possible to see the content of
the bottle. The bottle contained the remains of a dead snail due to the mistake of the
manufacturer of such drink (Olsson & Luchjenbroers 2013). After drinking the beer, the
claimant became seriously ill and had to suffer a personal injury which was the result of
drinking the remains of the dead snail.
The claimant filed a suit against the defendant in order to recover the damages. The court
provided that while determining whether a person owes a duty or not, the neighbour test can
be used. The test evaluates two key elements which establish whether a person owes a duty of
care or not. The first elements provide that there must be reasonable foreseeability of the
injury which means that damages must be reasonably foreseeable. The second element
provides that the parties must have proximity relationship. In case both of these elements are
present, then a duty is owed by the party to ensure that a level of care is maintained by him to
avoid the injury of another party. Thus, the court provided in this case that the manufacturer
owed a duty based on which the claimant has the right to recover the damages for the injury
which caused due to drinking the remains of the dead snail (Burns 2013). Based on this test,

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the court provided that a manufacturer owes a duty of care towards its customers while
providing its judgement in cases including O’Dwyer v Leo Buring Pty Ltd (1966) WAR 67
and Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) HCA 44. The second key
factor is that the duty must be violated by the party due to the failure of maintaining a
standard which is expected to avoid causing injury to another party.
While establishing this factor, the court uses an objective test by evaluating the circumstances
and facts of the case. The court used this test while providing its judgement in Vaughan v
Menlove (1837) 3 Bing N.C. 467. In this case, many warnings were given to the defendant to
maintain a standard of care in order to avoid the risk of fire in the haystack of the claimant,
but no action was taken by him. Later, the haystack of the claimant was burned in the fire due
to the negligence of the defendant. A suit was filed for recovery of damages against the
defendant. The defendant argued that as per his best judgement, the risk of fire was not
foreseeable based on which he is not liable for negligence. The court provided that as per the
objective test, the person should not rely only on his/her best judgement, instead, the person
should take an appropriate action which a reasonable person would while facing similar
consequences (Block 2018). Thus, the court provided that the defendant is liable to pay the
damages to the claimant. Based on this test, the court provided judgement in Cork v Kirby
MacLean Ltd (1952) 2 All ER 402 and Yates v Jones (1990) Aust Torts Reports cases as well.
In the case of children, the court provided that they are expected to maintain a standard of
care as per their age. In Mullin v Richards (1998) 1 WLR 1304 case, a 15-year-old girl
become blind due to the negligence of another girl who was also 15-year-old. The court
provided that the girl is required to maintain a standard of care according to her age based on
which she cannot be held liable under the suit for negligence. The third key factor is
causation which must be present in a suit for negligence. This element provides that the
injury which is suffered by a party must be caused due to the negligent actions of another
party. The element of causation establishes a direct link between the injuries of a party with
the negligent actions of another. While determining this element, the court uses the ‘but for’
test which assists in evaluating whether the injury would have occurred in the case, the
defendant would not be negligent. A good example was given in Barnett v Chelsea &
Kensington Hospital (1969) 1 QB 428 case in which the court provided that the defendant is
not liable for negligence since the claimant would have suffered from the illness and died
even if the defendant would not have acted negligently (Jackson 2013). The last element of

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negligence is that the injury which is suffered by a party due to the negligence of another
person must not be too remote.
The loss or damages which are too remote cannot be recovered by a suit of negligence.
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (1961) UKPC 1 is an
important case to understand this element which is also called the Wagon Mound no 1 case.
Due to the negligence of some crew members on a ship, the tap of oil was not closed, and it
resulted in leaking into Sydney harbour. Employees were welding on a nearby wharf, and
they saw the oil. However, they did not think that the oil would be flammable and continued
their work. The oil caught fire, and it resulted in causing substantial loss to the wharf. The
court provided that the damages cannot be recovered because the injury was too remote
(Martin 2014). In case all these elements are present, then the court can hold a person liable
under a suit for negligence. After providing that a person has breached his/her duty of care
which resulted in causing damages to another party, the court can order the negligent party to
pay compensation to the party who suffered the loss under the suit for negligence. The
defendant can rely on defences in case of negligence in order to eliminate his/her liability or
reduce the amount of damages paid to the claimant. The voluntary assumption of risk is a
common defence in the case of negligence.
The defence provides that a party cannot enforce another person to pay the compensation for
negligence if the risk was accepted by him. There are three key elements which are necessary
to be established while using this defence. The consent of accepting the risk must be given by
the party voluntarily. An agreement must be formed between the parties to accept the risk.
Lastly, the claimant must have complete knowledge regarding the risk before the agreement
is formed between the party as given by the court in Wooldridge v Sumner & Anor (1963) 2
QB 43 case. Another common defence is contributory negligence which provides that if the
damages of the party are suffered due to partially his/her and partially another person’s
negligence, then the amount of damages is reduced as per the contribution of the party. In the
case of Imbree v McNeilly (2008) HCA 40, the court reduced the amount of compensation by
30 percent based on the contributory negligence of the claimant. Thus, parties who suffered
an injury due to the failure of another party to maintain a standard of care should also ensure
that they maintain a reasonable level of care to avoid damages to themselves by contributory
into the negligence of another party (Brennan 2017).

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Application
Susan keeps a Bengal tiger in her house named Benji which she used in her shows. Susan has
properly trained Benji to ensure that she did not cause harm to another individual. However,
she understands that she can be damaged, thus, she keeps her in a strong compound in the
house. Cliff and Mary are neighbours of Susan, and she owes a duty towards them. Both the
elements of the neighbour test are present in this case since the risks are foreseeable and
proximity relationship exists (Donoghue v Stevenson). Therefore, Susan owes a duty to
maintain a standard to ensure that Benji did not cause damages to Cliff and Mary. The injury
which is suffered by Cliff and Mary are caused due to the release of Benji from her
compound. Benji was released from her compound by Kim; however, she is required to
maintain a standard as per her age based on which she cannot be held liable (Mullin v
Richards).
However, Susan cannot be held liable for the injury suffered by Cliff and Mary as well
because she did not breach her duty. She kept Benji in a strong compound to ensure that she
did not cause injury to other parties. Benji was released by Kim when Susan was not at her
house, thus, she did not breach her duty of care. The damages suffered by Cliff and Mary
were too remote because they occurred even after maintaining a standard of care by Susan
(Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd). Therefore, Cliff and
Mary cannot hold Susan liable to recover the injury suffered by them. In the case of Susan,
she cannot rely on the defence of voluntary assumption of risk since no agreement was
formed between the parties to accept the risk. Moreover, Cliff and Mary did not contribute to
the negligence which resulted in causing damages to them based on which Susan cannot rely
on the defence of contributory negligence.
Conclusion
Since a standard of care is maintained by Susan and the damages were too remote, Cliff and
Mary cannot recover the damages suffered by them from Susan by filing a suit for negligence
against her. Moreover, Susan cannot rely on the defences available in the case of negligence;
however, she did not have to pay compensation to Cliff and Mary.

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References
Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) HCA 44
Barnett v Chelsea & Kensington Hospital (1969) 1 QB 428
Block, G 2018, ‘A new look at standard of care’, Journal of the American Veterinary Medical
Association, vol. 252, no. 11, pp. 1343-1344.
Brennan, C 2017, Tort Law Concentrate: Law Revision and Study Guide, Oxford University
Press, Oxford.
Burns, K 2013, ‘It's not just policy: the role of social facts in judicial reasoning in negligence
cases’, Torts Law Journal, vol. 21, no. 2, pp. 73-105.
Cork v Kirby MacLean Ltd (1952) 2 All ER 402
Donoghue v Stevenson (1932) AC 562
Imbree v McNeilly (2008) HCA 40
Jackson, E 2013, Medical law: text, cases, and materials, Oxford University Press, Oxford.
Martin, J 2014, Key cases: The English Legal System, Routledge, Abingdon.
Mullin v Richards (1998) 1 WLR 1304
O’Dwyer v Leo Buring Pty Ltd (1966) WAR 67
Olsson, J & Luchjenbroers, J 2013, Forensic linguistics, A&C Black, London.
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (1961) UKPC 1
Vaughan v Menlove (1837) 3 Bing N.C. 467
Wooldridge v Sumner & Anor (1963) 2 QB 43
Yates v Jones (1990) Aust Torts Reports