Liability of Susan under the Law of Negligence

This article discusses the liability of Susan under the law of negligence for the damage caused to mini-tractor, chicken coop, house, pool, eggs and chicken and mental shock suffered by Mary and Cliff due to attack by Benji and fire in their house.

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Contents
Solution.......................................................................................................................................................2
Issues raised.............................................................................................................................................2
Law..........................................................................................................................................................2
Application of Law..................................................................................................................................4
Conclusion...............................................................................................................................................6
Reference List.............................................................................................................................................7

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Solution
Issues raised
i. Can Mary and Cliff claim from Susan for the damage fto their mini-tractor, chicken
coop, house, pool, eggs and chicken?
ii. Can Mary and Cliff claim from Susan for mental shock due to attack by Benji and the
shock suffered by them due to fire in their house?
Law
The Law of tort is very wide and covers a lot of laws, one of which is the law of Negligence. The
law of negligence was developed in order to protect the injured, who suffers injury due to no
fault on his part and thus compensation must be provided to the injured by the person who is the
defaulter. Law of Negligence is made in order to compensate injured when he faces loss. It puts
obligation upon the defendant to act in a proper and careful manner so that no person is injured
by his acts. The law of Donoghue v. Stevenson (1932) leads to the development of negligence.
(Gibson & Ase 2008)
A defendant is considered to be negligent when three ingredients of negligence are met: (Norman
2004)
i. Duty of care –It is the duty on the defendant under which he is under an obligation to
act in such manner so that his acts must not cause any harm to any third person. But,
against whom the defendant must incur the duty of care. In Donoghue case, the
principal of neighborhood was established. As per this principal, anybody who is near
or in proximity of the defendant is his neighbor and the defendant must act properly
and should not harm any of his neighbors. (The Law Hand Book 2014)
Further, it is very important to imposed duty of care against the defendant provided
the neighbor/plaintiff must be the person who is foreseeability by the defendant and is
held in the leading case of Tame v New South Wales (2002).
ii. Breach of duty of care - The defendant is said to be in breach of duty of care, when he
does not takes adequate care while performing his acts and thus the injury is inflicted
upon any of his neighbor due to his acts. The breach is said to happen when the level
or the standard of care which should had been adopted by the defendant in certain

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circumstances are not taken care of by the defendant. In case level of care is not
appropriate as per the circumstances, then, the defendant is liable for breach of duty
of care and is held in Bolton v Stone (1951). Proper care is such which a prudent
person would had taken in the said situation must be adopted, then only the defendant
can said to had not breached the duty of care and is held in Blyth v Birmingham
Waterworks Co (1856). (The Law vision 2008)
iii. The injury caused - The injury caused to the neighbor due to the breach of duty of
care is the last step to establish that the defendant is negligent. The injury must be
caused due to the act of the defendant. The injury caused should be foreseeable in
nature. If the injury that is caused to the injured is not reasonably foreseeable by a
prudent person in the said circumstances, then, in that case the defendant cannot be
held liable. The defendant is only liable when the act of the defendant is proximate to
the damage caused to the inured. In case of missing of element of proximity or
reasonable foreseableness, the defendant cannot be held liable as the injury must be
foreseeable and there must be proximity and causation between the act and the injury.
In case injury is caused but not due to act of the defendant then in that case injured
cannot claim from the injured under the law of negligence and is held in South
Australia Asset Management Co v York Montague (1996). (McLure 2008)
There are two defenses that are available to the defendant by which the defendant can reduce or
skip the liability under the law of negligence.
i. When the plaintiff is injured by his own acts and inspite of knowing about the danger
he chose to act and thus is injured, then, there is applicability of volenti non fit
injuria, which means that a defendant is not liable in case where he brings the danger
to the notice of the injured and injured then also moves ahead. This term means that
one who voluntarily assents to the danger cannot claim in case of injury as he was
having knowledge of the danger.
ii. When the defendant can prove that inspite of his negligence there was wrong
committed by the injured himself also which lead to so much loss to the injured. This
concept is known as contributory negligence. In case the injured had been vigilant or
careful then such amount of loss must not had happened to the injured. In such a case

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the liability for injury are divided among the defendant and injured accordingly and is
held in Joslyn v Berryman [2003].
In case the above defenses are proved by the defendant then he can get away from the liability or
get the liability reduced accordingly.
Application of Law
Susan has a bush land in Victoria. she was having a pet which is Bengal Tiger with whom she
lived away from crowded place. She uses Benji to perform in local age care homes. She has all
the permits which were required to keep Benji. Benji is docile but he has thirst for milk and also
likes chasing of the balls with strings. Susan had a strong compound and keeps Benji there only.
Susan realizes that outsiders may not think that Benji was safe for them.
Now, there are various acts that took place and which require independent analysis in order to
under the liability of Susan.
Issue 1
Claim of Mary and Cliff - Susan for the damage to their mini-tractor, chicken coop, house, pool,
eggs and chicken?
Now, it is submitted that Kim, who was a small child, was the neighbor of Susan. He comes to
see Benji when Susan is at home. Also, Cliff and Mary were the parents of Kim who are the
neighbors of Susan.
It is submitted that Susan owns a duty of care towards all the three, that is, Kim, Cliff and Mary.
It is submitted that Suisan is aware of the presence of Kim, Cliff and Mary. Susan can reasonably
foresee the presence of all the three, thus, as per Tame v New South Wales there is reasonable
forseeability. Also, Suisan is aware that she has kept a pet who is very dangerous in nature. she is
also aware that of anything dangerous is committed by Bejni then the same might affect Cliff,
Kim and Mary as they are living in the same locality. Thus, there is closeness amid Susan with
all these three persons considering the fact that Kim visits the house of Susan to play with Benji.
Thus, there is proximity amid Susan and all the three other individuals and thus by applying the
law in Donoghue v. Stevenson, Susan is sharing a relationship of neighborhood with them

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Thus, since there is presence of reasonable forseeability and proximity, thus, Susan owns a duty
of care against all these three persons.
But, one day Susan was not at her home and Kim came over to her house and got the keys of
compound and opened it. It is submitted that since a small child has the ability to take the keys of
the compound of Benji, thus, it can be interpreted that the level of care that is needed in the given
situation, considering a fact that a Bengal Tiger is kept by Susan, is not met. As per Blyth v
Birmingham Waterworks Co the level of care that is expected from Susan is not comply with. so
there is breach of duty of care.
Now, when Kim opened the door, Benji jumped out and start looking for milk and pounced and
pushed Kim. Now, Susan can be held liable for the damage to the mini-tractor, chicken coop,
house, pool, eggs and chicken provided the elements of damages are proved:
It is submitted that Benji saw Kim’s father Cliff while Cliff was marking a new vegetable garden
with a ball of string. Benji went on to chase the string. Cliff who was climbing on the tractor
having ball of string did not noticed that Benji was coming towards the tractor. Benji as a result
jumped on the tractor for taking string from Cliff’s hand but Cliff fell by which the gear of
tractor was knocked into drive.
i. Now, because of moving of the tractor without the presence of Cliff, the tractor ran
through Cliff’s house and Mary Cliff’s wife was shocked as a result of which the pan
of cooking oil was dropped on the cook top which in turn lead to fire in the house.
It is submitted that the fire that is caused is not because of the acts of Benji but
because if an unarmed tractor. This loss is very remote and thus this loss is not
covered under the law of negligence;
Further,
ii. Further, the tractor did not stopped thereafter and ran through their property and
tractor ran through a chicken coop which released all the chickens. The release of the
chicken is not because of the acts of Susan or Benji. The act was not at all related
because of the breach of duty on the part of Susan. So, there is no causation and thus,
Suisan is not liable for the loss that is caused to the chicken;

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iii. Eventually the tractor fell into the swimming pool and caused damage to pool and
tractor also. The loss to the pool and the tractor itself is very remote and cannot be
predicted by any reasonable person in the like situation. Also, the los is not caused
because of the breach of duty of care on the part of the Susan. So, there is no presence
of causation also. So, Susan is not liable to the said losses.
Thus, it is submitted that Susan cannot be held liable for the losses that are caused to Mary and
Cliff mainly because such losses were too remote to predict and were not because of the breach
of duty of care on the part of the Susan. So, Mary and Cliff cannot sue Susan for such losses.
Issue 2
Because of the escape of Benji, both Cliff and Mary were in mental shock as they had been
attacked by Benji and the shock of fire in the house. It is submitted that this loss can be
anticipated by Susan as it was very obvious that any reasonable person will come in shock after
seeing a Bengal tiger in front of them unarmed. Thus, this damage can be reasonable predictable
by Susan and is caused because of the breach of duty of care on the part of Susan. Thus, Cliff
and Mary can sue Susan for mental shock.
But, Susan can prove that the loss that is caused to them were mainly because they were aware
that a Bengal tiger is living next to them and still they take no action to get rid away from such
danger. Thus, they has also contributed to the loss that is caused to them/ thus, Susan can rely on
the defense of contributory negligence.
Conclusion
Thus, Susan is not liable for any other loss apart from the loss of mental shock that is incurred to
Mary and Cliff because of the escape of Benji.

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Reference List
Books/Articles/Journals
Gibson and Ase 2008, Business Law, Pearson Education Australia, Prentice Hall 3rd Ed.
Norman, K 2004, "Who then in law is my neighbour?"
<http://eprints.qut.edu.au/5213/1/5213_1.pdf>;
McLure, CJ 2008, A Practical Guide To The Resolution Of Causation Issues In Negligence. <
https://www.aila.com.au/docs/default-source/speaker-papers/a-practical-guide-to-the-resolution-
of-causation-issues-in-negligence.pdf?sfvrsn=2>;
Case laws
Bolton v Stone (1951).
Blyth v Birmingham Waterworks Co (1856)
Donoghue v. Stevenson (1932).
Joslyn v Berryman [2003].
South Australia Asset Management Co v York Montague (1996).
Tame v New South Wales (2002)
Online Material
The Law Hand Book, 2014, Duty of Care.
<http://www.lawhandbook.org.au/handbook/ch06s03s02.php>;
The Law vision, 2008, The Law of Tort.< http://www.lawvision.com.au/uploads/PDFs/Tort
%20Law%20.pdf>;