Suit for Negligence: Elements, Defences and Application

This article explains the elements of a suit for negligence, including the duty of care, causation, and foreseeability of damages. It also discusses available defences, such as contributory negligence and voluntary assumption of risk, and applies these concepts to a case involving a Bengal tiger.

0
Business Law

1
Question
Issue
The issue raised as per the facts of this case is whether the loss suffered by Cliff and Mary
can be recovered by filing a suit of negligence against Susan? Whether Susan can rely on a
defence of negligence?
Rule
A suit for negligence can be filed against a party in case such party failed to behave with a
level of care which a person with ordinary prudence would in the particular situation. The
suit for negligence enables a party to recover compensation for the loss suffered based on
the negligence of another party. The court established certain elements in Donoghue v
Stevenson (1932) AC 562 case which is necessary to be present while filing a suit for
negligence. Firstly, it is necessary to established by the party in a suit for negligence that the
party owes a duty of care. The duty is referred to the legal obligation of a party to maintain
a standard of care which is expected in the particular situation in order to avoid causing
serious damages to third parties. In this case, a customer suffered serious illness after
drinking the remains of a dead snail which were present in the bottle of ginger beer. Due to
the negligence of the manufacturer, the remains were present in the bottle which resulted
in causing serious injury to the claimant. The court accepted the claim for the negligence by
providing that a standard of care was breached by the manufacturer (Bartsch 2016). In this
case, the duty of care was established by the court based on the neighbour test. It evaluates
the relationship of the parties to identify whether proximity exist or not.
Moreover, the parties are required to prove that the damages are foreseeable because the
injuries which cannot be foreseen are not valid for a claim under the suit for negligence.
Another test which is used by the court is ‘Caparo test’; this test was given by the court in
the case of Caparo Industries PLC v Dickman (1990) 2 AC 605. This test evaluates the duty of
a party based on evaluating three key factors. Firstly, the risks must be reasonably
foreseeable, and they must not be too remote. Both parties must have proximity
relationship based on which they owe a duty towards each other. Lastly, it must be
reasonable for the court to implement the duty on a party to avoid the damages of another
party (Marsh 2017). The duty which is owed by the party must be breached which resulted

2
in causing injury to another party. The duty of a party is breached if he/she failed to ensure
a standard of care which is expected to avoid causing damages to another party. The court
relies on the ‘objective test’ to determine whether the duty is violated by a party or not. In
Vaughan v Menlove (1837) 3 Bing N.C. 467 case, the court ordered the defendant to pay the
compensation to the claimant for the loss suffered by him. Even after giving many warnings,
the defendant did not take any appropriate measures to eliminate the risk of fire.
Due to the lack of security measures, the haystack of the claimant burned. The defendant
said that as per his best judgement, the risk of fire was not there; the court provided that
the best judgement is not enough to eliminate the liability of duty of care. The party is
required to take appropriate care which a reasonable person would while acting in the
particular situation. The court used this test while providing the judgement in Conon v Basi
(1985) 1 WLR 866 and Wilsher v Essex (1988) 1 AC 1074 case. People who keep pets in their
house have to ensure that a standard of care is maintained by them to ensure that the pet
did not cause any harm to another person. However, their liability did not extend to injuries
which are suffered by another party due to fear of the pet or any other reasons. In Partipilo
v DiMaria 570 N.E.2d 683 (III. App. Ct. 1991) cases, a dog owner kept her dog in another
room to avoid injury to people who visit the house. A person falls down the stairs after
hearing the barking of the dog from the room. A suit for recovery of damages under
negligence was filed against the dog owner. The court provided that the owner has taken
appropriate measures to ensure that the dog did not cause any harm to another party, thus,
a duty of care is not violated by him (Court Listener 2018).
Thus, the court rejected the claim for damages by providing that the duty is not violated by
the dog owner. After proving that the defendant has breached the duty of care, the
claimant is required to establish the element of causation. As per the element of causation,
the injuries of a party must be caused due to the direct result of the violation of the duty of
care by the defendant. The parties are required to establish a link between the injuries
which they suffer and the negligent actions of the defendant. In order to establish this
element, the court uses ‘but for’ test which focuses on determining whether a party would
have suffered the loss even if the duty had not been violated by the defendant. The court
applied this test in Chapel v Hart (1998) HCA 55 case in which the court awarded $173,000
for the damages suffered by the claimant due to the negligence of the defendant to while

3
delivering professional services. The court also provided in Performance Cars Ltd v Abraham
(1962) 1 QB 33 case that in case two causes are occurring which resulted in causing injury to
a party, then the test can be applied to determine the liability of the defendant (Song 2014).
After establishing that the injury of a party is suffered due to the negligent actions of
another party, it is necessary to establish that the damages are not too remote. The parties
did not have the right to recover compensation for the injury suffered by them which is too
remote. The remoteness of damages principle was used by the court in the case of Overseas
Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] UKPC 1. This case is also known
as the Wagon Mound no 1 case in which the court provided that the compensation cannot
be given to the party in case the damages are not foreseeable. Some crew members
working on a ship forgot to close the tap due to which oil leaked in Sydney Harbour. Some
workers were welding in a wharf nearby, and they saw the oil. They thought that the oil is
not flammable and continued welding. The oil caught fire which resulted in burning the
wharf and causing serious financial loss to the owner. The court provided that although the
damages are suffered due to the negligence of the defendant, however, the damages are
too remote based on which the claimant cannot demand compensation (Robertson &
Tilbury 2016). The court only awards the compensation for the loss suffered by a party if all
these elements are present in the suit for negligence.
There are various defences available for the defendant based on which the court can reduce
the overall compensation paid to the claimant or completely end the liability of the
defendant. In case of the loss suffered by the claimant are caused due to his/her own
negligence along with the negligent actions of the defendant, then the amount awarded by
the court is reduced as per the contribution of the claimant. For example, the damages paid
to the claimant by the court were reduced by 30 percent in the case of Imbree v McNeilly
(2008) HCA 40 because an accident occurred by a learner driver who was driving in the
supervision of another passenger (Eburn & Cary 2018). Another defence which is available
for the defendant is the voluntary assumption of risks. In order to rely on this defence, three
key elements must be fulfilled by the parties. Firstly, the party must voluntarily give his/her
consent to accept the risks involved in a particular activity. Secondly, an agreement must be
formed between the parties in which they decide to accept the risk involved in the process.
Lastly, the court provided in Morris v Murray (1991) 2 QB 6 case that the claimant must be

4
complete knowledge regarding the risk while entering into an agreement to accept the
same. Based on these defences, the defendant is able to reduce the amount of damages
paid to the claimant or completely eliminate his/her liability raised from the negligent
actions.
Application
Susan was keeping a Bengal tiger in her house named Benji; she understands the fact that
Benji can cause an injury to other parties, therefore, she had taken precautionary measures
to ensure that Benji did not get into contact with anyone. Since Cliff and Mary wanted to
demand compensation from Susan under a suit for negligence, they are required to
establish that all the elements of negligence are present in the case. Firstly, a duty of care is
owed by Susan towards Cliff and Mary based on the principles of the ‘Caparo test’. The risks
are foreseeable, and proximity relationship exists between the parties. It is also reasonable
to impose the duty on Susan to avoid the damages to Cliff and Mary. In order to maintain
her duty, Susan has maintained a standard of care to avoid causing damages to other parties
(Donoghue v Stevenson). She kept Benji in a strong compound to ensure that she is not able
to cause injury to others. On the other hand, if Benji would not have released from her
compound, then the damages were not suffered by Cliff and Mary. Therefore, as per the
‘but for’ test, the element of causation is present in this case (Chapel v Hart).
However, the damages suffered by Cliff and Mary are not resulted due to a breach of duty
by Susan. Susan was not at her house when Kim entered the house and unlocked the
compound of Benji without asking anyone. An appropriate standard was maintained by
Susan to ensure that her pet did not cause damage to third parties, but she cannot be held
liable for damages which are not caused directly by her pet (Partipilo v DiMaria). Moreover,
the risk of damages was not foreseeable by Susan because she did not know the fact that
Kim would unlock the compound of Benji when she is not at her house, therefore, the injury
was too remote. Cliff and Mary did not have any contribution to the loss suffered by them;
therefore, the defence of contributory negligence did not apply in this case. Moreover, the
parties did not give their consent or entered into an agreement to accept the risk based on
which the defence of voluntary assumption of risk did not apply in this case as well.
However, Susan did not have to pay damages to Cliff and Mary since they cannot hold her

5
liable to pay compensation under the suit for negligence because all elements of negligence
are not present in the case.
Conclusion
The loss suffered by Cliff and Mary cannot be recovered by them by filing a suit of
negligence against Susan since a duty of care is not breached by her and the damages were
too remote. Susan cannot rely on the defence of negligence including contributory
negligence and voluntary assumption of risk; however, she is not required to pay
compensation to Cliff and Mary.