Tort Law on Negligence in Australia: Case Analysis

This article discusses the tort law on negligence in Australia through case analysis. It covers the essentials to prove negligence, duty to care, breach of duty, causation, and more. The first part of the article discusses a case involving Harry and Will's negligence in handling a parcel that caused injury to Meghan and Catherine. The second part discusses a case involving BNQ and Merlin's liability for causing financial damage to Pablo's family.

Running head: BUSINESS LAW
Business Law
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Part A
Issues
The issue which is involved in this case is whether Megan and Catherine has
any claim against any party in this situation.
Relevant laws
The issues can be solved by discussing the tort law on negligence in
Australia. Negligence can be described as an act to cause a careless injury to a
person or damage or loss to any property (Stickley 2016). There are some essentials
to prove negligence on the part of the defendant. To prove a negligence it should be
established that there was a duty to care, breach of that duty to take care, the breach
of duty of care must result into damages and the damages caused to the person was
reasonably foreseeable or consequence of the act or omission of the other party.
The defendant must owe a duty to take care towards the plaintiff. A duty to care
arises where the law recognise that there is a relationship between the plaintiff and
the defendant, which requires the defendant to act towards the plaintiff in a specific
manner. In the famous case of Donoghue v Stevenson [1932] All ER 1 the test to
identify the duty of care was defined. This test indicates that whether there is a duty
to take care can be determined by considering the fact what a reasonable person
would do if he were in the same position as the defendant. It is a matter of
consideration that whether the defendant could foresee the injury that can be the
result of his conduct. It should be also considered that whether a person in the
position of the plaintiff would have been owed with the duty to take care by the
defendant (Dobson 2015).
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Another element of negligence consists breach of four factors, which are
likelihood of harm, seriousness of the injury, the action which was required to reduce
the risk of harm and the utility of the activity of the defendant. It was established in
the case of Bolton v Stone [1951] AC 850 that the risk factor should be analysed in
every different case. If the situation involves a risk factor which is too small to be
disregarded by a reasonable person, it shall not amount to be a breach of duty to
take care (Luntz et al. 2017). The action required to mitigate the risk involved in a
situation was discussed in the case of Latimer v AEC Ltd [1953] AC 643. The Court
stated that a defendant has a duty of care like a reasonable man. A duty shall not be
said to have breached if an injury has occurred in spite of taking reasonable care.
In this respect, the element of causation is also required to be discussed in
relation to damages. In the case of Overseas Tankship (UK) Ltd v Morts Dock &
Engineering Co Ltd [1961] AC 388, it was found that the element of causation would
not be established if the damages suffered by the plaintiff are remote to the action of
the defendant. Because it is evident that the result of his action was not reasonably
foreseeable by the defendant.
Application
Harry and Will are employed in the mail sorting centre, which expresses that
they need to act with due care while sorting the mails. They should be extremely
careful while dealing with the parcel. A parcel can contain things which may cause
danger or injury to another person. It is the liability of the employees to be very act
be cautious while sorting the parcel. Harry and Will suspected that the parcel may
have something illegal or dangerous within it. It was their duty to act with care in the
situation and place it in a safe and locked cupboard to avoid any kind of injury. Harry
and Will placed the bulging parcel in an unlocked cupboard which was the reason for
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causing injury to Meghan and Catherine. There was a duty on the part of Harry and
Will to take reasonable care of the parcel and act with responsibility. If they had
acted with due diligence and kept the parcel in a safe pale, the snakes would not
have escaped from it. The snakes broke out to the street and bit Catherine and
seriously affected her to make her lose the ability to walk. Had Harry and Will acted
with care the snakes would not have reached to the street and cause injury to
Catherine. Also they failed to perform their duty of care which resulted into causing a
heart attack to Meghan. It was foreseeable that the parcel contained something
dangerous within it which may cause harm or injury. There was a serious proximity
between the action of Harry and Will and the harm caused to Meghan and Catherine.
It was nothing but the result of the negligence act of Harry and Will. Harry and Will
can be held liable for not adopting proper precaution while handling the parcel. They
shall be liable to pay damages for their negligence to Meghan and Catherine.
Conclusion
Therefore, from the above discussion, it can be concluded that, Meghan and
Catherine can sue Harry and Will in the tort of negligence. They can claim damages
from Harry and Will for their injuries.
Part B
Issues
The issue in the present situation is to determine who had the liability to act
with care towards Pablo and his family and whether BNQ can be held liable for their
act.
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Relevant Laws
The issues can be answered by having a detailed discussion about the law of
negligence and the principles of agent-principal relationship. The law of agency
provides a set of fiduciary relationships of an agent who has been authorised to act
on behalf of the principal to enter into legal relations with a third party. The law of
agency defines unauthorised act of agents simultaneously. The general rule of
agency says that unauthorised acts of the agent is any such act which is in exceed
of the authority of the agent (Mendelson 2014). Generally, an agent is held liable for
acting beyond his authority. Agent is expected to perform his act within his scope of
authority. But it is required that, the unauthorised act of the agent would not
discharge the principal from his obligations towards the third party, if the third party
has no notice of the fact that the agent was not authorised to do an act.
It was observed in the case of Allen A. Funt Productions, Inc. v. Chemical
Bank 405 N.Y.S.2d 94 (1978) that principal should bear the responsibility for the
wrongful act of his agent. In the case of Kanavos v Hancock Bank & Trust Company,
it was demonstrated that actual notice should be given to the third party for the act of
the agent which are not authorised. In case of failure to give notices the principal
shall be liable for the act of the agent. It is the duty of the principal to take due care
while dealing with the third party through an agent (Kelly 2015). If he is unable to do
so, he shall be said to commit a breach of his duty. If for the breach of duty of the
principal, the third party suffers any loss or damage, he shall be liable to pay
damages to the third party.
Application
The family of Pablo entered into a contract with Merlin to purchase two unit of
the estates and give it for rent. Merlin was the financial adviser who used to work for
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BNQ. It was their responsibility to complete their part of the agreement as Pablo’s
parents had successfully performed their part. As a financial adviser, Merlin was the
agent of BNQ and had the apparent authority to give advice on any matter to the
clients. If there was any restriction on the authority of Marlin, it was the duty of BNQ
to give a notice of the fact to the family. BNQ did not give any notice to the family
before or at the time of their signing the contract. It was the breach of duty on the
part of BNQ to properly inform the parties about the scope of authority of Merlin. If
they had acted with due care and gave a notice to the party about Merlin not being
authorised to promote investment in the real estate, Pablo’s family would not have
suffered the loss. Additionally, they did not receive any money as the flats were not
tenanted. In this case, the negligence of BNQ of giving notice to the party has simply
resulted into the loss that they had suffered. Hence, Pablo’s family can sue BNQ
their negligent act. Additionally, they can sue Merlin for acting beyond her authority
and causing financial damage to the family.
Conclusion
It can be concluded from the above discussion that, both Merlin and BNQ are
liable for causing damage to the family. The family can sue them for the tort of
negligence and claim for damages.
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Reference list
Stickley, A.P., 2016. Australian torts law. LexisNexis Butterworths.
Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G. and Harder, S.,
2017. Torts: cases and commentary. LexisNexis Butterworths.
Dobson, E., 2015. Negligence. Legaldate, 27(1), p.4.
Mendelson, D., 2014. The new law of torts. Oxford University Press.
Kelly, K., Schwartz, V.E. and Partlett, D.F., 2015. Prosser, Wade, Schwartz, Kelly,
and Partlett's Torts, Cases and Materials. Foundation Press.
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