Analysis of Negligence in Engineering: BLAW2000 Assignment 2

This assignment report, prepared for Curtin University's BLAW2000 Law for Engineers course, delves into the tort of negligence, focusing on a case study involving Sebastian Surtees Pty Ltd and Clay Hawthorne. The report identifies key issues related to breach of duty of care and ensuing damages. It provides a detailed discussion of negligence, defining it as a breach of duty of care that results in harm. The report outlines the essential elements of negligence: duty of care, breach of that duty, and resulting damages. It examines leading cases such as Donoghue v Stevenson and Caparo Industries plc v Dickman to establish the presence of duty of care. The report also explores breach of duty of care, referencing cases like Vaughan v Menlove, Paris v Stepney Borough Council, and Bolton v Stone to illustrate the standards expected of a reasonable person and professionals. Finally, the report discusses damages, including causation, foreseeability, and contributory negligence, with examples from cases like Wagon Mound (No.1) and (No.2), and Froom v Butcher. The principle of vicarious liability is also touched upon. The report offers a comprehensive understanding of negligence principles within the context of engineering law.

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Curtin University
Department of Mechanical Engineering
BLAW2000 Law for Engineers
Assignment 2: Contract Law
Prepared by: Dhruv Patel
Student Id: 18109775
Date Due:
Date Submitted:

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1. Identification of Issues
The given case study which revolves around Sebastian Surtees Pty Ltd and Clay Hawthorne relates to the
tort of negligence. In particular, it relates to the breach of duty of care and the ensuing damages.
2. Step 2: Discussion of Law and identification of key cases
A tort is deemed as a civil wrong done, whereby the actions of one person, harm the other. There are
different torts in Australia, and a leading one amongst these is the tort of negligence (Statsky 2011).
Negligence can be defined as a breach of duty of care, which a person P owes to person R, due to the
actions which were undertaken by person P which had the potential of injuring or harming the person R.
So, when P careless undertakes an activity which requires care towards R due to the possibility of P’s
actions harming or injuring R, it would result in negligence. And when a case of negligence is present,
the aggrieved party can claim damages for the harm or loss which they had to incur as a result of the
undertaken actions of the tortfeasor (Trindade, Cane and Lunney 2007).
It is the duty of the plaintiff to show before the court of law that they have been injured or harmed due
to the actions of the defendant, in order to claim the damages under a civil action brought before the
court of law. In order to establish a case of negligence, the aggrieved party has to establish the presence
of certain key elements, included in which is the duty of care (Kolah 2013). This is followed by proving
that this duty of care had been contravened by party P. And lastly, there is a need to establish that the
person R was actually harmed or damaged due to this failure of P in exercising his duty of care. Once all
of these elements can be shown in a single claim, the aggrieved party is awarded damages by the court
of law, based on the magnitude of damage cause to such person R (Kennedy 2009).
Duty of Care
The first and foremost step, when it comes to making a case of negligence, is to show that a duty of care
was present and that the same was owed by person P to person R (Lunney and Oliphant 2013). With
regards to establishing that a duty of care was present, the leading English case of Donoghue v
Stevenson [1932] AC 562 proves to be of help. In this case, Donoghue consumed a ginger beer, from a

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bottle which contained a dead snail. As a result of this consumption, she got sick and initiated legal
action against Stevenson, who was the beer manufacturer. Her claims were initially discarded by the
court as this drink had been purchased by Donoghue’s friend and not Donoghue herself. However, on
further appeal it was held that the actions of Stevenson were such that they had the capability of
affecting Donoghue, due to the customer-manufacturer relationship. The judges held that there was
reasonable foreseeability in a contaminated drinks leading to the sickness of a consumer and that there
was proximity between the parties, which had the capacity of impacting the other. As a result of this,
the court held that the manufacturer was indeed liable and owed a duty of care towards Stevenson. And
as a result of the breach of this duty of care, followed by injury of Donoghue, Stevenson was asked to
compensate her for her losses.
Another helpful case which helps in establishing the presence of duty of care is that of Caparo Industries
plc v Dickman [1990] 2 AC 605. In this case, the court presented a threefold test, whereby in order to
show the presence of duty of care, it had to be shown before the court that the injury was reasonably
foreseeable, that there was proximity between the parties in such a manner that the actions of one,
affected the other, and lastly, that if penalties are imposed, it would be just and reasonable (Latimer
2012).
Breach of Duty of Care
Upon successfully showing that a duty of care had indeed been owed, the aggrieved party than has to
show that the same had been contravened, in the sense that the defendant had failed in fulfilling his
obligations (Martin and Lancer 2013). Vaughan v Menlove (1837) 3 Bing NC 467 was a case in which the
haystack of the defendant caught fire as a result of the poor ventilation. On different occasions, the
defendant had been warned that if he continued to leave his haystack, this was bound to happen. And
on this, the defendant argued that using his best judgement, a risk of fire was not reasonably
foreseeable. However, the court held that the judgment of the defendant was not enough and there
was a need to apply standards as per a reasonable person. Hence, it has to be shown that a reasonable
person would have undertaken the precautions owing to the reasonable foreseeability of such risk of
harm.
The next step is to consider the consequences of the undertaken actions, or the lack of it for that matter
(Turner 2013). In the case of Paris v Stepney Borough Council [1951] AC 367, Paris was already blind in
one eye. And he was employed by the Council for undertaking certain work. The Council was aware of
the condition of Paris and yet they did not provide him with the safety gear, particularly protective
goggles. While working on a rusty bolt, a chip flew into the good eye of Paris, resulting in his complete
blindness. The failure of the Council in providing the requisite safety gear was deemed as a breach of
duty of care by the court of law which led to Paris being awarded damages for his blindness.
There is also a need to show that a reasonable person would have considered the degree of risk which
was associated with the actions undertaken by a person (Gibson and Fraser, 2014). Bolton v Stone
[1951] AC 850 is a case in which Stone was struck with a cricket ball, while she was standing outside her
home, due to the ball flying away from the stadium, which was around hundred yards away from
Bolton’s home. As per the facts of the last thirty years, it was depicted that the ball could only fly off
outside the stadium six times only. So, as a reasonable person there was only a need to build the fence,
this had been done. And so, a breach of duty of care was not upheld in this case.
When it comes to the professionals, they are required to show a standard in their practice (Greene
2013). Rogers v Whitaker (1992) 175 CLR 479 was one of such cases in which the responded was not
made aware of the consequences of the surgery which was being undertaken. This meant that she could
not take the proper and informed decision when it came to the operation. As a skilled person, the
doctor was under an obligation to deploy more care than an ordinary person. And due to these reasons,
the doctor was held liable for negligence. With regards to the engineers, they are required to show a

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standard of competent practice. In Consultants Group International v John Worman Ltd (1987) 9 Con LR
46, Worman had agreed to constrict the abattoir, for the reasons of being a contractor, on strict
conditions with regards to the designs which had been stated by the architects, i.e., by CGI. A consultant
was hired by Worman for carrying out the work and this hired constructor, contravened the design
conditions. It was held by the court that the duty of care of Worman towards CGI was equal to the duty
of care of consultant towards Worman. And as a result of this, the consultant was held liable for
compensating for the economic losses.
Damages
Upon the successful completion of the above two aspects, the final requirement is to show that the
plaintiff had been actually harmed/ injured or had to bear a loss, in order for the remedies to be
awarded under negligence. In order to show that damages need to be awarded to the aggrieved party,
there is a need to show that there was a direct causation between the injury of plaintiff and the breach
of duty of care of the defendant; and that the damages were foreseeable in a reasonable manner, which
was substantial in nature and not remote (Emanuel and Emanuel 2008).
The damages are only to be awarded when they were reasonable foreseeable by a rationale individual
and when the same were not too remote. In the case of Wagon Mound (No.1) [1961] AC 388, the
plaintiff could not succeed in his claims of negligence due to the failure of the plaintiff in showing that a
reasonable person would have predicted the kind of fire damage which actually took place. And so, no
damages were awarded to the plaintiff. Though, in Wagon Mound (No.2) [1967] AC 61, the court held
that the damage of oil spill in a second case, was different from the previous incident and this
foreseeability led to the damages being awarded to the plaintiff.
There is a need to show direct causation between the injury and the damages, in terms of cause and
effect based on the common sense and on the basis of the facts of the particular case (Martin and
Lancer, 2013). In the case of Yates v Jones (1990) ATR 81, as a result of the defendant, the plaintiff got in
an accident. Later on, she was offered heroine for dealing with her pain by a friend. When she sued
Jones, she claimed the costs of her addition to heroine from Jones. However, the court held that there
was a lack direct causation between the breaches of duty of care of Jones and between her addictions to
heroine. Thus, the damages were not awarded to her.
The amount of damages which are awarded to the aggrieved party, i.e., the plaintiff, can at times be
reduced or completely reduced. This is in the cases of contributory negligence. This is a famous defence
under the negligence as per which the plaintiff is considered to have contributed towards the damage
caused to them. And when such happens, the court deems it necessary to reduce the amount of
remedies which were awarded to the plaintiff (Dongen, 2014). Froom v Butcher [1976] 1 QB 286 was a
case in which the plaintiff was injured due to the accident which was caused due to the mistake of the
defendant. The defendant had been drunk, which led to the accident. However, the plaintiff was not
wearing the seatbelt at the time of the accident. This was deemed as the contributory negligence of the
plaintiff and as a result of this, the damages which were awarded to the plaintiff were reduced by the
value of £100 by the court.
Davies v Swan Motor Co [1949] 2 KB 291 was a case in which the plaintiff had been standing on the side
of the dust lorry and this place was deemed as a dangerous place to stand on. While the lorry was
travelling down a narrow road, the bus tried to pass the lorry and unfortunately, Davies was killed. The
court held Davies as 1/5th responsible for the damage caused and accordingly, the damages was
reduced.
Vicarious liability
This principle is born from the agency law and as per this principle, for the acts undertaken by the
subordinates, the superior is held liable, particularly towards the third parties when it comes to the

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employer-employee relationship. In order for an employer to be held liable for the tortious acts of their
employee, there is a need to prove negligence, followed by the presence of employer-employee
relationship (Giliker 2010). In this regard, Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16
proves to be of help. In this case, the court held that different factors had to be applied for upholding
the presence of employer-employee relationship, which was not present in this case. Apart from these
two requirements, there is also a need to show that the undertaken tortious act by the employee was
within the scope of their employment, for holding the employer liable.
3. Step 3: Application of the law with reference to key cases
Duty of Care
As per the facts of the case study, it is very clear that Clay was the neighbour of Surtees and that his
front office had been damaged badly, apart from his engine building workshop and the vehicles around
it, which were charred from the fire which started at Surtees. The distance between the two places thus
can be assumed to be very less, and there was proximity between the parties in a manner that the
actions of one impacted the other. Applying the neighbours’ principle given in the case of Donoghue v
Stevenson to the present case study, it can be established that the actions of Surtees affected Clay as a
result of the proximity between the parties, making it reasonably foreseeable for Clay to be affected by
acts of Surtees.
Applying the threefold test given in Caparo Industries plc v Dickman, the injury was reasonably
foreseeable due to the proximity between the parties, and where damages are awarded to clay for the
loss they had to bear from the resulting fire, it would be just and reasonable. So, on the basis of both of
these cases, Surtees owed a duty of care towards Clay.
Breach of Duty of Care
As the duty of care has been established, the next requirement is to show its breach. For this, the
reasonable foreseeability has to be established. There was a reasonable risk of overheating of machines
resulting in fire and this is the reason why the machine was turned off on daily basis. Not shutting down
the machine made it reasonably foreseeable to heat up and cause fire. To further this incident, the door
of fire proof room was left open. As an engineer, the Surtees was required to deploy standard of
professional care as per Rogers v Whitaker and Consultants Group International v John Worman Ltd. This
was not done, resulting in fire, thus breaching the duty of care which was owed towards the Clay’s.
The failure of closing the fire proof door and not shutting down the machine was not what a reasonable
person would have done as per Vaughan v Menlove. Hence, the failure in taking the precautions owing
to the reasonable foreseeability of such risk of harm resulted in a breach of duty of care. This can further
be strengthen with the case of Paris v Stepney Borough Council where there was a lack of deploying the
requisite safety measure and this was deemed by the court as not upholding the duty of care. Even if
Surtees cites that they had taken the reasonable care by installing the fire proof glass based on Bolton v
Stone, it would not be upheld as firstly, the door was not closed, and secondly, fire was something which
could spread across boundaries, unlike a cricket ball of the quoted case. Thus, it is very clear that the
duty which Surtees owed towards the Clay’s was not upheld and was instead contravened.
Damages
As the first two requirements have been fulfilled, there is a need to show that damages would be
justified in this case. It is very clear that the damage which Clay got was directly due to the fault of
Surtees in shutting down the machine and in shutting down the fire proof door. This action caused fire
which directly destroyed a lot of material of Clay. Unlike Wagon Mound (No.1), here it can be shown
that the overheating kind of fire damage was reasonably predictable and so, as was held in the case of

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Wagon Mound (No.2) damages would be awarded to Clay’s. Further, the direct causation has been
highlighted ample times in this case which would mean that unlike the case of Yates v Jones, damages
would be awarded to the Clay’s. But the costs which are sought by Clay for $15,000 for the cost of
airfare tickets would not be liability of Surtees as this was not caused directly from the fire, based on
Yates v Jones and only $460,000 would be awarded to Clay.
However, the amount of damages which would be awarded to Clay, as a result of negligence of Surtees
would be reduced by their contributory negligence. Even though the fire was caused from the
overheating of machines and leaving open the door by Surtees, but by leaving containers with residue
solvent outside, Clay’s contributed to their injuries. And based on Froom v Butcher and Davies v Swan
Motor Co, the damages awarded to Clay would be brought down proportionately.
Vicarious liability
The negligence has already been established. And the technician was employed at the workshop of
Surtees which proves that unlike Stevens v Brodribb Sawmilling, he was an employee, which would make
Surtees vicariously liable for the acts of their employee.
4. Step 4: Conclusions
Hence, it can be concluded that Surtees indulged in negligence by breaching the owed duty of care
towards Clay and would have to compensate Clay for their losses. But the amount of damages awarded
to Clay would be reduced due to their contributory negligence, in proportion of their carelessness.

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References
Dongen, E.V. 2014. Contributory Negligence: A Historical and Comparative Study. Boston: Brill Nijhoff.
Emanuel, S., and Emanuel, L. 2008. Torts. New York: Aspen Publishers.
Gibson, A., and Fraser, D. 2014. Business Law 2014. 8th ed. Melbourne: Pearson Education Australia.
Giliker, P. 2010. Vicarious Liability in Tort: A Comparative Perspective. Cambridge: Cambridge University
Press.
Greene, B. 2013. Course Notes: Tort Law. Oxon: Routledge.
Kennedy, R. 2009. Duty of Care in the Human Services: Mishaps, Misdeeds ad the Law. Victoria:
Cambridge University Press.
Kolah, A. 2013. Essential Law for Marketers. 2nd ed. United States: Kogan Page Limited.
Latimer, P. 2012. Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited.
Lunney, M., and Oliphant, K. 2013. Tort Law: Text and Materials. 5th ed. Oxford: Oxford University Press.
Martin, J., and Lancer, D. 2013. AQA Law for AS Fifth Edition. 5th ed. Oxon: Hachette UK.
Statsky, W.P. 2011. Essentials of Torts. 3rd ed. New York: Cengage Learning.
Trindade, F., Cane, P., and Lunney, M. 2007. The law of torts in Australia. 4th ed. South Melbourne:
Oxford University Press.
Turner, C. 2013. Unlocking Torts. 3rd ed. Oxon: Routledge.
List of Authorities
Bolton v Stone [1951] AC 850
Caparo Industries plc v Dickman [1990] 2 AC 605
Consultants Group International v John Worman Ltd (1987) 9 Con LR 46
Davies v Swan Motor Co [1949] 2 KB 291
Donoghue v Stevenson [1932] AC 562
Froom v Butcher [1976] 1 QB 286
Paris v Stepney Borough Council [1951] AC 367
Rogers v Whitaker (1992) 175 CLR 479
Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16
Vaughan v Menlove (1837) 3 Bing NC 467
Wagon Mound (No.1) [1961] AC 388
Wagon Mound (No.2) [1967] AC 61
Yates v Jones (1990) ATR 81