Part A: Workplace Liability for Negligence
Issue
The issue in the given case is identified as whether the employees of the Australian Post Department, Harry and Will can be sued by Meghan and Catherine on account of sustaining various injuries as described in the case study. Thus, the issue is whether Meghan and 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 exercise of due care and diligence, which would have exercised by a responsible person in the light of the given circumstances (Terry and Giugni, 2016). Thus, negligence cannot be regarded as intentional actions, but it is the absence of the acting in a manner, a reasonable person should have been in the concerned scenarios. The tort of negligence governs the cases of negligence and 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.
- The presence of “duty to take care” is the first essential element to be established by the party. Thus, a person must owe a duty or service to the victim in the question. The principle has been widely established in a number of case laws, one of the most popular being the Donoghue v. Stevenson[1932] AC 562.
- The second essential element is that the individual who owes the duty must “violate the duty, promise or obligation”. Thus, unless there is a violation of the owed duty as stated above, the parties cannot sue the other under the tort of negligence.
- “Existence of the harm or the damage” is also important and must. The damage of 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 (Elaw Resources, 2018). The injuries caused must be reasonably foreseeable as a result of the person’s negligent actions.
- The last element is known as “causation”. The breach of the duty on the part of the defendant must be the actual cause of the injuries sustained by the others, and the same must be established (Latimer, 2016).
Thus, as stated above the plaintiff must establish the above conditions, to successfully sue the defendant under the tort of negligence.
In addition to the above, there exists a liability of the employer as well. An employer is secondary liable for the acts done by his or her employees (ACAS, 2018). This is referred to as the existence of the secondary liability or the vicarious liability. This is also an important factor when the circumstances in a given case involve an employer employee relationship.
On application of the rules as stated above, it has been found that as Harry and Will were the employees of the Australian Post, it was their duty to keep the parcel containing snakes at a proper place and handle the same with due standards of care. Thus, by virtue of being the employees, the duty to take care of the parcel that was part of the office property, existed.
In addition, the employees failed to fulfil the duties as they did not lock the parcel on the cupboard. On suspecting the existence of something dangerous and illegal, instead of locking the parcel in a safe place, they left the same in an unlocked cupboard. Thus, there is a violation or breach of the duty to take care as well.
On application of the third element, it is evident that both Meghan and Catherine have 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. Thus, there exist harms as well.
Lastly, had the parcel was carefully handled, the snakes would not have escaped. It can be 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. Thus, the element of direct causation is also established in the given case.
In addition, to the above elements of the tort of negligence, there is an employer employee relationship between Harry and Will, the employees and the Australian Post, the employer. Thus, the Australian Post is secondary liable for the acts done by its employees, in light of the vicarious liability as defined above. Thus, all the four elements and the vicarious liability is established.
Part B: Duty of Care for Financial Advisors
Thus, it can be concluded that on application of the stated rules as prescribed by the tort of negligence, Harry and Will can be sued by Meghan and Catherine on being negligent in performance of their duties. Both Meghan and Catherine have sustained respective injuries on account of duty to take care being breached by the employees.
Apart from Harry and Will, Australian Post Department can also be sued for the responsibility of the acts of its employees. Harry and Will were on their duties, when they were negligent, and therefore, the Australian Post is secondary liable for their acts.
Thus, as per the discussions conducted in the previous parts, it can be concluded that in the given circumstances, Meghan and Catherine will be successful if they sue Harry, Will and the Australian Post under the tort of negligence.
Issue
The issue in the give case is identified as to be whether a duty of care was owed to the Pablo’s parents, Edvard and Frida. In addition, if a duty to take care was owed, then by whom. Further issue is whether there is an existence of liability on anyone’s part against Edvard and Frida.
Rule
The duty of care is the first essential element that needs to be established under the tort of negligence. It is the most crucial element to be established, because the further elements are based on the duty of care only (Cleaver Fulton Rankin, 2016). According to the tort of negligence, the fact that whether there existed a duty for care must be examined on the basis of the circumstances of each case. However, the general principle is that there are certain scenarios, the duty of care is implied and thus present, even if it is not mentioned expressly. The law prescribes a number of scenarios, out of which a client and solicitor relationship is the one.
The case law of the Caparo Industries Plc v Dickman [1990] 2 AC 605, is a landmark judgment that states that there is an established duty of care in the certain scenarios, of which a client and solicitor relationship is one. The case law also states that a few conditions must be established to regard a situation had a duty to take care on part of the parties. These conditions are as follows.
- The duty of care must be just and fair and each and every situation must be assessed individually, for the duty can vary (Proneg, 2018).
- There must be an existence of a close relationship between the parties, and
- A harm that may be caused must be foreseen in the event of violation of the said duty.
Further, there exists a liability of employer as well for the acts of its employees. The employer has vicarious liability for the acts of its employees.
On analysis of the situation and the application of the rules as stated above, following points can be stated.
As the Pablo’s parents were incompetent in the English language and the business transactions, they had hired the services of the financial advisory firm BNQ, of which Merlin was the employee. Thus, there existed a proximate relationship between Merlin and the Pablo’s parents.
The couple was not competent and knowledgeable enough to judge the materiality of the investments they had made on the suggestion of financial adviser Merlin, but the financial adviser is ought to have the knowledge of the same, by virtue of his nature of employment, and the services he rendered.
In addition, it was because of his suggestion that they had invested in the said units. Further, on being in a position of financial adviser, it was his responsibility to assess whether the rents would be receivable from the investments he was suggesting. Thus, the essential conditions as laid down by the Caparo Industries Plc v Dickman are established, i.e. of existence of close relationship and the foreseeing of losses on the part of Merlin, in the event of being negligent.
In addition, Merlin was working in the capacity of an employee for BNQ. BNQ had vicarious liability for the acts of Merlin.
Conclusion
In the given case, it can be concluded that Merlin and BNQ owed the duty of care towards Pablo’s parents. Merlin is primarily liable for non performance of his duty to take care of and being negligent in judging the materiality of the investments made by the couple on his advice. BNQ has vicarious liability on being Merlin’s employer.
References
ACAS, (2018) Understanding what vicarious liability means for employers. [online] Available from: https://www.acas.org.uk/index.aspx?articleid=3715 [Accessed on 13/09/2018].
Caparo Industries Plc v Dickman [1990] 2 AC 605
Cleaver Fulton Rankin. (2016) The Tort of Negligence – Establishing a Duty of Care. [online] Available from: https://www.cfrlaw.co.uk/article/2806/ [Accessed on 13/09/2018]
Donoghue v. Stevenson [1932] AC 562.
Elaw Resources. (2018) Negligence [online] Available from: https://www.e-lawresources.co.uk/Negligence.php [Accessed on 13/09/2018].
Latimer, P. (2016) Australian Business Law 2016. Sydney, NSW: CCH Australia Limited.
Proneg.co.uk. (2018) What is a Duty of Care? – Professional Negligence Definition. [online] Available from: https://www.proneg.co.uk/professional-negligence/duty-of-care [Accessed on 13/09/2018]
Terry, A. and Giugni, D. (2016) Business and the Law.6th ed. Pyrmont, NSW : Thomson Reuters.
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