Negligence Tort: Elements and Defences

qwertyuiopasdfghjklzxcvbnmqw
ertyuiopasdfghjklzxcvbnmqwert
yuiopasdfghjklzxcvbnmqwertyui
opasdfghjklzxcvbnmqwertyuiop
asdfghjklzxcvbnmqwertyuiopasd
fghjklzxcvbnmqwertyuiopasdfgh
jklzxcvbnmqwertyuiopasdfghjkl
zxcvbnmqwertyuiopasdfghjklzxc
vbnmqwertyuiopasdfghjklzxcvb
nmqwertyuiopasdfghjklzxcvbnm
qwertyuiopasdfghjklzxcvbnmqw
ertyuiopasdfghjklzxcvbnmqwert
yuiopasdfghjklzxcvbnmqwertyui
0
Business Law

1
QUESTION
ISSUE
 Whether a successful suit for negligence can be filed by Cliff and Mary against
Susan to enforce her to pay for the loss which they suffered due to Benji?
 Whether any defences are available for Susan against the suit for negligence?
RULE
Negligence torts are not defined as deliberated actions; instead, they are referred to the
failure of an individual or entity act reasonably towards another person to whom a duty
of care is owed. The tort of negligence covered the specific torts which resulted in
causing monetary losses or personal injury to a party. There are certain elements which
constitute a negligence tort which must be present in order to demand compensation.
Firstly, a person must owe a duty to the victim in question regarding maintaining a
standard of care. Secondly, such standard or obligation must be violated by the party
(Barker et al. 2012). Thirdly, an injury must arise due to that specific violation of the
obligation. Lastly, the injury which caused as the result of the negligent actions must
have been reasonably foreseeable. In Donoghue v Stevenson (1932) AC 562 case, the
elements of negligence were established by the court which applies to modern suits
filed for negligent actions of parties. The claimant ordered ginger beer in the café and
went ill after drinking the beer. The illness was caused due to the remains of a dead
snail which were present in the bottle. A suit for recovery of damages under the tort of
negligence was filed by the claimant against the manufacturer. The judgement of the
court was given based on the elements of the negligence. Firstly, a duty of care was
owed by the manufacturer towards its customers to ensure that a standard of care is
maintained by manufacturing the beer bottles. Such duty was violated because the
remains of a snail were present in the bottle (Barravecchio 2013).
The illness of the claimant was caused due to the negligence of the defendant, and the
injury was not too remote as well. While deciding the duty of the party, the court used
the ‘neighbour test’ to evaluate whether the manufacturer owed a duty or not. The test

2
provides two key elements which must be present in order to establish the duty of a
party. Firstly, the risks must be foreseeable, and proximity must exist between the
relationships between parties. Based on this test, the court provided a judgement in the
case of O’Dwyer v Leo Buring Pty Ltd (1966) WAR 67 in which it was held that a
manufacturer owed a duty while designing the goods. Furthermore, a duty of service is
also owed by the party while packing the goods as given in Adelaide Chemical and
Fertilizer Co Ltd v Carlyle (1940) HCA 44 case to ensure that the goods are safe for
customers (Latimer 2011). After proving that a standard of care is owed by the
defendant, the parties are required to prove that such a standard must be violated by
the party. The breach of the duty of care is recognised by the party based on an
objective test. The objective test evaluates whether a reasonable standard of care is
maintained by the party which a reasonable person would in the particular situation. In
Vaughan v Menlove (1837) 3 Bing N.C. 467 case, the court provided that a reasonable
standard of care must be established by the party to avoid causing loss to another
person. The haystack of the claimant was burned because a standard of care was not
maintained by the defendant.
The claimant was given many warnings to the defendant before to ensure that a
standard of care is maintained by him. The defendant provided in the court that as per
his best judgement, a reasonable standard was taken by him, however, the court
provided that the best judgement is not enough. It is expected that a standard of care
should be maintained which a reasonable person would in the particular situation.
Thus, the court held the defendant liable for negligence. In the case of Mullin v Richards
(1998) 1 WLR 1304, the court provided that children be expected to ensure a standard
of care according to their age. In this case, some 15-year-old girls were fighting, and due
to the negligence of a girl, another girl suffered an injury to the eye due to which her
eyesight was lost. A suit for negligent was filed against the girl; the court provided that
the girl was expected to maintain a standard of care which a 15-year-old girl should,
thus, she cannot be held personally liable (Dyson 2015). The injury or damages which
arise must be the result of the negligent actions of the defendant which is referred to
causation. The cause of the injury suffered by the party must be the negligence of the
defendant to maintain a standard of care. In order to determine this element, the court
uses ‘but for’ test which was given in Barnett v Chelsea & Kensington Hospital (1969) 1