Part A: Case of Snake Bite and Heart Attack
The case study involves two Australia Post employees, Harry and Will, working in a Mail Sorting Centre in suburban Sydney, and case against them rests on allegation of negligence and breach of duty of care. The essentials of the case, in short, are that a large parcel arrived at their desk and they suspected that it may contain something dangerous, suggest Bermingham & Brenan, (2018). They reported the matter to the local police and placed the parcel in an unlocked cupboard. Harry and Will’s suspicion was correct, as the parcel contained illegally smuggled snakes, which escaped from the parcel before the police could take action.
In Australia, Tort law rests largely on common law and on legislation to a lesser extent. In NSW, negligence was included into legislation through common law. However, for judging claims of negligence, the NSW authorities and courts are now governed by the Civil Liability Act, 2002. It is very important for the claimant to prove that the negligent party (Harry & Will in this case study) knew the risk of harm and as reasonable persons would have followed precautions for controlling the risk, if faced with circumstances similar to those of the claimant, as per Steele, (2014).
Moreover, in NSW, in order to file a claim of negligence, the claimant is required to furnish proof of the following three factors –
- There existed a duty of care between the claimant and the negligent person.
- The negligent person (Harry & Will in this case study) breached the duty of care.
- Damage/injury suffered by the claimant resulted from the breach of duty.
Let me first explain Duty of Care to Meghan and Catherine. In NSW negligence can only be established on the basis of relationship existing between Meghan and Catherine (the claimants) and Harry and Will (the negligent parties), as per Greene, (2013).
Courts usually recognize an existence of duty of care between the following relationships:
- An employee’s with the employer.
- Between an owner and its tenant.
- A manufacturer’s with its customer.
- A patient’s with its doctor.
- A student’s with its teacher.
- A road user’s to a vehicle owner.
In general, assert Horsey & Rackley, (2017), the principles of duty of care have been broadened after the English case of Donoghue vs Stevenson, which is considered to have introduced responsibilities of duty of care. Although in exceptional circumstances, the court may agree that a duty of care existed between the parties through a previously unrecognized relationship, explains Mulheron, (2016).
ADVICE TO PARTIES
In NSW, in cases involving negligence, Meghan and Catherine will be required to prove that a breach of duty of care occurred and to also establish that the standard of care expected from Harry and Will was not met by them. Moreover, as I have explained above, the breach of duty of care is decided by the courts on a case-by-case basis. When the court shall decide what precautions must be taken by a reasonable person, suggest Robbenolt & Hans, (2016), the court is bound to consider all or one of the following factors –
- Likely level of severity of the harm/damage caused to the claimant.
- Difficulty level of the measures to be taken for avoiding the harm/damage.
- Probable level of the harm/damage if negligent party did not take care.
Legal Principles of Negligence and Breach of Duty of Care
The court shall also question Meghan and Catherine about the reasonable steps they took, when confronted with the risk of harm/damage, for prevention of the harm occurring. The claimant must satisfy the court about the means adopted for taking minimum precautions so as to reduce the degree of harm/damage suffered. It does not seem that due diligence was done by Catherine. She tried to catch a snake and consequently was bitten by it. She suffered severely from the snake’s venom as the medicine administered by the hospital doctors did not prove effective in curing her. And Meghan, already a hearth patient, suffered a heart attack on seeing the snake. Although the snake did not harm her.
On the part of the negligent parties (Harry and Will), it has already been established that they took the precaution of putting the parcel in a cupboard and informing the police. They could not have knowledge of the contents in the parcel, as the authority to open the parcel rests with the police. As I stated above, the court is going to study the merits and demerits of both, the plaintiff as well as the defendant. It is going to be difficult for the plaintiffs (Meghan and Catherine) to satisfactorily prove any fault on the part of the defendants (Harry and Will), as the duty and standard of care on areas outside the jurisdiction of their working area was not the primary responsibility of Harry and Will.
PART – B
In NSW, a tort of negligent misstatement is defined as and I quote “an inaccurate statement made honestly but carelessly usually in the form of advice given by a party with special skill/knowledge to a party that doesn’t possess this skill or knowledge” Unquote. As a legal advisor, I have come across it many a times and I had to tackle the concept by admitting that this area of the tort has emerged as a separate branch of law though all legal councilors still agree that the basic fundamentals of this tort are required to be present for proving its stature, as per Bermingham & Brenan, (2018). But I have always believed that a negligent misstatement must take into account the aspect of the existence of a special relationship between the disputing parties.
In this case study of Pablo, according to Mulheron, (2016); Horsey & Rackley, (2017), the party which suffered financial crisis and Merlin, the Financial Advisor who created the financial mess does emphatically establish this special relationship. Merlin, being a financial advisor, possessed specialist financial skills/knowledge and because of this the plaintiff had sought his services for arriving at a sound financial decision. Since Merlin provided information across to Pablo which later proved to be detrimental to the financial interests of Pablo, Pablo is entitled to seek remedy from a Court of Law for justified damages/compensation, as per Greene, (2013).
On the legal front, we expect the Court to proceed as per the four point test that allows Pablo to prove that there indeed was a special relationship between the disputing parties, assert Robbenolt & Hans, (2016).
- The defendant (Merlin) agrees that plaintiff (Pablo) sought his services as he was possessing specialist skill/knowledge in his chosen profession.
- The plaintiff fully trusted the advice/information provided to him by the defendant.
- The parties exchanged information for the purpose of undertaking a valuable business transaction.
- The defendant also had the realization that plaintiff intended to fully act as per the advice/information given.
- Under the given circumstances, it was pertinent for the plaintiff to rely on the advice/information given by the defendant.
Conclusion
The facts provided to the court have definite proof that the funds invested by Pablo became insolvent soon after investing as per Merlin’s advice and Pablo suffered a huge loss. It is for the Courts to take into consideration this fact and form grounds to process a claim under negligent misstatement as the defendant totally failed in his duty of care and the standard of care was breached. The plaintiff and his uneducated parents were victims of the defendants, who not only advised them wrongly but also brought them into a financial mess, leaving them with huge losses.
In conclusion, this appeal rests on the grounds that the court is concerned with allowing compensation to the plaintiff as all facts point to the fact that the defendant’s actions led to the loss suffered by the plaintiff.
References
Bermingham, V. and Brenan, C. 2018, Tort Law Directions. Oxford University Press, Oxford.
Greene, B. 2013, Course Notes: Tort Law. Routledge, Oxon.
Horsey, K. and Rackley, E. 2017, Tort Law. Oxford University Press, Oxford.
Mulheron, R. 2016, Principles of Tort Law. Cambridge University Press, Cambridge.
Robbenolt, J.K. and Hans, V.P. 2016, The Psychology of Tort Law. NYU Press, New York.
Steele, J. 2014, Tort Law: Text, Cases, and Materials. Oxford University Press, Oxford.
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