Liability of Susan under the Law of Negligence

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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