Tort of Negligence: Liability of Employees and Employers

This study material discusses the tort of negligence and its four essential elements. It also explains the liability of employers for the acts of their employees. Two case studies are analyzed to apply the rules of the tort of negligence and determine liability. The first case involves employees of the Australian Post Department being sued for negligence resulting in injuries sustained by two individuals. The second case involves a financial advisor and his employer being sued for negligence resulting in losses incurred by a couple. Course code, course name, and college/university are not mentioned.

Corporation nterprise aw& E L
September13 2018

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Answers
Part A
Issue
he issue in the given case is identified as whether the employees of the Australian ostT P
Department arry and ill can be sued by Meghan and Catherine on account of sustaining, H W
various injuries as described in the case study hus the issue is whether Meghan and. T ,
Catherine would be successful in suing the employees for being negligent.
Rule
According to the tort of negligence in Australia negligence is defined as the absence of e ercise, x
of due care and diligence which would have e ercised by a responsible person in the light of, x
the given circumstances ( erry and iugniT G , 2016) hus negligence cannot be regarded as. T ,
intentional actions but it is the absence of the acting in a manner a reasonable person should have, ,
been in the concerned scenarios he tort of negligence governs the cases of negligence and. T
lays down the four basic elements to be established by the parties to regard that the other party,
has been negligent in the performance of his or her duties.
1) he presence of duty to take care is the fi rst essential element to be established by theT “ ”
party hus a person must owe a duty or service to the victim in the question he. T , . T
principle has been widely established in a number of case laws one of the most popular,
being the onoghue v tevensonD . S AC[1932] 562.
2) he second essential element is that the individual who owes the duty must violate theT “
duty promise or obligation hus unless there is a violation of the owed duty as stated, ”. T ,
above the parties cannot sue the other under the tort of negligence, .
3) istence of the harm or the damage is also important and must he damage of“Ex ” . T
physical economic or the damage to the property has to be established by the party,
suing for the other to be regarded as negligent in his or her duties, ( law ResourcesE ,
2018) he injuries caused must be reasonably foreseeable as a result of the person s. T '
negligent actions.
4) he last element is known as causation he breach of the duty on the part of theT “ ”. T
defendant must be the actual cause of the injuries sustained by the others and the,
same must be established ( atimerL , 2016).
hus as stated above the plaintiff must establish the above conditions to successfully sue theT , ,
defendant under the tort of negligence.

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n addition to the above there e ists a liability of the employer as well An employer isI , x .
secondary liable for the acts done by his or her employees (ACAS, 2018) his is referred to. T
as the e istence of the secondary liability or the vicarious liability his is also an importantx . T
factor when the circumstances in a given case involve an employer employee relationship .
Application of the rule
n application of the rules as stated above it has been found that as arry and ill were theO , H W
employees of the Australian ost it was their duty to keep the parcel containing snakes at aP ,
proper place and handle the same with due standards of care hus by virtue of being the. T ,
employees the duty to take care of the parcel that was part of the office property e isted, , x .
n addition the employees failed to fulfil the duties as they did not lock the parcel on theI ,
cupboard n suspecting the e istence of something dangerous and illegal instead of locking. O x ,
the parcel in a safe place they left the same in, an unlocked cupboard hus there is a violation. T ,
or breach of the duty to take care as well.
n application of the third element it is evident that both Meghan and Catherine haveO ,
sustained the respective harm and injuries Meghan has suffered a heart attack and Catherine.
was bitten by the snake that had escaped out of the parcel hus there e ist harms as well. T , x .
astly had the parcel was carefully handled the snakes would not have escaped t can beL , , . I
said that carelessness on the part of the employees led the snakes to escape and were the
direct cause of the harms sustained by Meghan and Catherine hus the element of direct. T ,
causation is also established in the given case.
n addition to the above elements of the tort of negligence there is an employer employeeI , ,
relationship between arry and ill the employees and the Australian ost the employerH W , P , .
hus the Australian ost is secondary liable for the acts done by its employees in light ofT , P ,
the vicarious liability as defined above hus all the four elements and the vicarious liability is. T ,
established.
Conclusion
hus it can be concluded that on application of the stated rules as prescribed by the tort ofT ,
negligence arry and ill can be sued by Meghan and Catherine on being negligent in, H W
performance of their duties oth Meghan and Catherine have sustained respective injuries on. B
account of duty to take care being breached by the employees.

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Apart from arry and ill Australian ost Department can also be sued for theH W , P
responsibility of the acts of its employees arry and ill were on their duties when they. H W ,
were negligent and therefore the Australian ost is secondary liable for their acts, , P .
hus as per the discussions conducted in the previous parts it can be concluded that in theT , ,
given circumstances Meghan and Catherine will be successful if they sue arry ill and the, H , W
Australian ost under the tort of negligenceP .
Part B
Issue
he issue in the give case is identified as to be whetherT a duty of care was owed to the ablo sP ’
parents dvard and rida n addition if a duty to take care was owed then by whom urther, E F . I , , . F
issue is whether there is an e istence of liability on anyone s part against dvard and ridax ’ E F .
Rule
he duty of care is the fi rst essential element that needs to be established under the tort ofT
negligence t is the most crucial element to be established because the further elements are. I ,
based on the duty of care only (Cleaver ulton RankinF , 2016) According to the tort of.
negligence the, fact that whether there e isted a duty for care must be e amined on the basisx x
of the circumstances of each case owever the general principle is that there are certain. H ,
scenarios the duty of care is implied and thus present even if it is not mentioned e pressly he, , x . T
law prescribes a number of scenarios out of which a client and solicitor relationship is the one, .
he case law of theT Caparo ndustries Plc v ic manI D k AC is a landmark judgment[1990] 2 605,
that states that there is an established duty of care in the certain scenarios of which a client,
and solicitor relationship is one he case law also states that a few conditions must be established. T
to regard a situation had a duty to take care on part of the parties hese conditions are as follows. T .
1) he duty of care must be just and fair and each and every situation must be assessedT
individually for the duty can vary roneg, (P , 2018).
2) here must be an e istence of a close relationship between the parties andT x ,
3) A harm that may be caused must be foreseen in the event of violation of the said duty .
urther there e ists a liability of employer as well for the acts of its employees he employerF , x . T
has vicarious liability for the acts of its employees.
Application of the rule

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n analysis of the situation and the application of the rules as stated above following points canO ,
be stated.
As the ablo s parents were incompetent in the nglish language and the business transactionsP ’ E ,
they had hired the services of the fi nancial advisory fi rm of which Merlin was the employeeBNQ, .
hus there e isted a pro imate relationship between Merlin and the ablo s parentsT , x x P ’ .
he couple was not competent and knowledgeable enough to judge the materiality of theT
investments they had made on the suggestion of fi nancial adviser Merlin but the fi nancial adviser is,
ought to have the knowledge of the same by virtue of his nature of employment and the, ,
services he rendered.
n addition it was because of his suggestion that they had invested in the said units urther onI , . F ,
being in a position of fi nancial adviser it was his responsibility to assess whether the rents would,
be receivable from the investments he was suggesting hus the essential conditions as laid down. T ,
by the Caparo ndustries Plc v ic manI D k are established i e of e istence of close relationship and, . . x
the foreseeing of losses on the part of Merlin in the event of being negligent, .
n addition Merlin was working in the capacity of an employee for had vicariousI , BNQ. BNQ
liability for the acts of Merlin.
Conclusion
n the given case it can be concluded that Merlin and owed the duty of care towardsI , BNQ
ablo s parents Merlin is primarily liable for non performance of his duty to take care of andP ’ .
being negligent in judging the materiality of the investments made by the couple on his advice.
has vicarious liability on being Merlin s employerBNQ ’ .

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References
ACAS, (2018) nderstanding hat vicarious lia ility means for employersU w b online Available. [ ]
from http www acas org uk inde asp articleid Accessed on: :// . . . / x. x? =3715 [ 13/09/2018].
Caparo ndustries Plc v ic manI D k AC[1990] 2 605
Cleaver ulton RankinF . (2016) he ort of egligence Esta lishing a uty of CareT T N – b D online. [ ]
Available from http www cfrlaw co uk article Accessed on: :// . . . / /2806/ [ 13/09/2018]
onoghue v tevensonD . S AC[1932] 562.
law ResourcesE . (2018) egligenceN online Available from[ ] :
http www e lawresources co uk egligence php Accessed on:// . - . . /N . [ 13/09/2018].
atimerL , P. (2016) ustralian usiness aA B L w 2016 Sydney S CC Australia imited. , N W: H L .
roneg co ukP . . . (2018) hat is a uty of Care Professional egligence efinitionW D ? - N D online. [ ]
Available from https www proneg co uk professional negligence duty of care Accessed on: :// . . . / - / - - [
13/09/2018]
erry A and iugni DT , . G , . (2016) usiness and the aB L w.6th ed yrmont S homson Reuters. P , N W : T .