Tort of Negligence: Liability of Australian Post Employees and Financial Adviser

ENTERPRISE LAW

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Part A
Issue
In the given case, Meghan and Catherine have sustained the physical injuries in the form of
heart attack and the disability to walk respectively. This was because of the loose snakes that
escaped from the parcel from the Australian Post Department. The issue is whether Meghan
and Catherine can sue the employees of the Australian Post Department under the tort of
negligence.
Rule
The law for the negligence in Australia has been prescribed under the Tort law for
negligence. According to the tort for negligence, negligence has been defined as the failure of
exercising diligence and due care that would have been reasonably exercised by a prudent
person in the given circumstances (Latimer, 2016). The tort of negligence expressly covers
the harm caused by carelessness. According to the tort of negligence, the first party (the
plaintiff) must establish the following explained elements of negligence claims, in order to
sue the second party (defendant), in negligence. The elements of fault have been widely
established under the various case laws, the most popular being the Donoghue v. Stevenson
[1932] AC 562.
1. Duty of Care: According to the tort of negligence, the legal liability of the defendant
arises in the event of failure on his part to fulfil as responsibility, the beneficiary of
which is the plaintiff. Thus, the plaintiff has to establish that there existed a duty or an
obligation on the part of the defendant towards the plaintiff.
2. Breach of Duty: The second element that must be established in order to sue is that
there was a breach of the previously mentioned duty by the defendant. The defendant

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may subjectively expose the plaintiff towards the substantial risk of loss or injury. He
can also do so by failing to realise the said risk, which any reasonable person in the
given circumstances would have objectively realised. Thus, the breach can be either
subjective or objective.
3. Causation: In order to make the defendant held liable for the breach of duty, it must
be established that the loss or damage sustained were due to the cause of the particular
acts or omissions on the defendant’s part. Thus, as famously established in the case of
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303, it is required to be
established that breach of duty was the direct cause for the injury to the plaintiff.
4. Harm: In order to claim the damages from the defendant, it must be proved by the
plaintiff that the defendant's breach caused a harm, loss, or injury to him or her
Vaughan v Menlove (1837) 3 Bing. N.C. 467. Thus, it must be established that there
was a loss of a foreseeable kind, and only then the defendant can be held liable.
Vicarious Liability: The term is used to denote the existence of the secondary liability in
certain contracts (ACAS, 2018). The relationship of the employer and employee is that of
an agency relationship and the indirect liability arises in the case of the employer-
employee relationship. This is applicable on the grounds of the acceptance of the
responsibility for the acts done by the subordinates. As a result, the employer can be
made liable for the acts of the employee and this is applicable in cases of negligence
under tort law too.
Application
On application of the rules as stated above, the following findings must be noted.
Duty of care- The employees Harry and Will had suspected existence of some dangerous or
illegal thing in the box. Their suspicion is well depicted by the fact that they called the police