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

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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