The Essential Elements of Negligence in Australian Law
The issue which is involved in this case is whether Megan and Catherine has any claim against any party in this situation.
The issues can be solved by discussing the tort law on negligence in Australia. Negligence can be described as an act to cause a careless injury to a person or damage or loss to any property (Stickley 2016). There are some essentials to prove negligence on the part of the defendant. To prove a negligence it should be established that there was a duty to care, breach of that duty to take care, the breach of duty of care must result into damages and the damages caused to the person was reasonably foreseeable or consequence of the act or omission of the other party. The defendant must owe a duty to take care towards the plaintiff. A duty to care arises where the law recognise that there is a relationship between the plaintiff and the defendant, which requires the defendant to act towards the plaintiff in a specific manner. In the famous case of Donoghue v Stevenson [1932] All ER 1 the test to identify the duty of care was defined. This test indicates that whether there is a duty to take care can be determined by considering the fact what a reasonable person would do if he were in the same position as the defendant. It is a matter of consideration that whether the defendant could foresee the injury that can be the result of his conduct. It should be also considered that whether a person in the position of the plaintiff would have been owed with the duty to take care by the defendant (Dobson 2015).
Another element of negligence consists breach of four factors, which are likelihood of harm, seriousness of the injury, the action which was required to reduce the risk of harm and the utility of the activity of the defendant. It was established in the case of Bolton v Stone [1951] AC 850 that the risk factor should be analysed in every different case. If the situation involves a risk factor which is too small to be disregarded by a reasonable person, it shall not amount to be a breach of duty to take care (Luntz et al. 2017). The action required to mitigate the risk involved in a situation was discussed in the case of Latimer v AEC Ltd [1953] AC 643. The Court stated that a defendant has a duty of care like a reasonable man. A duty shall not be said to have breached if an injury has occurred in spite of taking reasonable care.
In this respect, the element of causation is also required to be discussed in relation to damages. In the case of Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd [1961] AC 388, it was found that the element of causation would not be established if the damages suffered by the plaintiff are remote to the action of the defendant. Because it is evident that the result of his action was not reasonably foreseeable by the defendant.
Case Study 1: Personal Injury Caused by Snake Bites
Harry and Will are employed in the mail sorting centre, which expresses that they need to act with due care while sorting the mails. They should be extremely careful while dealing with the parcel. A parcel can contain things which may cause danger or injury to another person. It is the liability of the employees to be very act be cautious while sorting the parcel. Harry and Will suspected that the parcel may have something illegal or dangerous within it. It was their duty to act with care in the situation and place it in a safe and locked cupboard to avoid any kind of injury. Harry and Will placed the bulging parcel in an unlocked cupboard which was the reason for causing injury to Meghan and Catherine. There was a duty on the part of Harry and Will to take reasonable care of the parcel and act with responsibility. If they had acted with due diligence and kept the parcel in a safe pale, the snakes would not have escaped from it. The snakes broke out to the street and bit Catherine and seriously affected her to make her lose the ability to walk. Had Harry and Will acted with care the snakes would not have reached to the street and cause injury to Catherine. Also they failed to perform their duty of care which resulted into causing a heart attack to Meghan. It was foreseeable that the parcel contained something dangerous within it which may cause harm or injury. There was a serious proximity between the action of Harry and Will and the harm caused to Meghan and Catherine. It was nothing but the result of the negligence act of Harry and Will. Harry and Will can be held liable for not adopting proper precaution while handling the parcel. They shall be liable to pay damages for their negligence to Meghan and Catherine.
Conclusion
Therefore, from the above discussion, it can be concluded that, Meghan and Catherine can sue Harry and Will in the tort of negligence. They can claim damages from Harry and Will for their injuries.
The issue in the present situation is to determine who had the liability to act with care towards Pablo and his family and whether BNQ can be held liable for their act.
The issues can be answered by having a detailed discussion about the law of negligence and the principles of agent-principal relationship. The law of agency provides a set of fiduciary relationships of an agent who has been authorised to act on behalf of the principal to enter into legal relations with a third party. The law of agency defines unauthorised act of agents simultaneously. The general rule of agency says that unauthorised acts of the agent is any such act which is in exceed of the authority of the agent (Mendelson 2014). Generally, an agent is held liable for acting beyond his authority. Agent is expected to perform his act within his scope of authority. But it is required that, the unauthorised act of the agent would not discharge the principal from his obligations towards the third party, if the third party has no notice of the fact that the agent was not authorised to do an act.
It was observed in the case of Allen A. Funt Productions, Inc. v. Chemical Bank 405 N.Y.S.2d 94 (1978) that principal should bear the responsibility for the wrongful act of his agent. In the case of Kanavos v Hancock Bank & Trust Company, it was demonstrated that actual notice should be given to the third party for the act of the agent which are not authorised. In case of failure to give notices the principal shall be liable for the act of the agent. It is the duty of the principal to take due care while dealing with the third party through an agent (Kelly 2015). If he is unable to do so, he shall be said to commit a breach of his duty. If for the breach of duty of the principal, the third party suffers any loss or damage, he shall be liable to pay damages to the third party.
The family of Pablo entered into a contract with Merlin to purchase two unit of the estates and give it for rent. Merlin was the financial adviser who used to work for BNQ. It was their responsibility to complete their part of the agreement as Pablo’s parents had successfully performed their part. As a financial adviser, Merlin was the agent of BNQ and had the apparent authority to give advice on any matter to the clients. If there was any restriction on the authority of Marlin, it was the duty of BNQ to give a notice of the fact to the family. BNQ did not give any notice to the family before or at the time of their signing the contract. It was the breach of duty on the part of BNQ to properly inform the parties about the scope of authority of Merlin. If they had acted with due care and gave a notice to the party about Merlin not being authorised to promote investment in the real estate, Pablo’s family would not have suffered the loss. Additionally, they did not receive any money as the flats were not tenanted. In this case, the negligence of BNQ of giving notice to the party has simply resulted into the loss that they had suffered. Hence, Pablo’s family can sue BNQ their negligent act. Additionally, they can sue Merlin for acting beyond her authority and causing financial damage to the family.
Conclusion
It can be concluded from the above discussion that, both Merlin and BNQ are liable for causing damage to the family. The family can sue them for the tort of negligence and claim for damages.
Reference list
Stickley, A.P., 2016. Australian torts law. LexisNexis Butterworths.
Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G. and Harder, S., 2017. Torts: cases and commentary. LexisNexis Butterworths.
Dobson, E., 2015. Negligence. Legaldate, 27(1), p.4.
Mendelson, D., 2014. The new law of torts. Oxford University Press.
Kelly, K., Schwartz, V.E. and Partlett, D.F., 2015. Prosser, Wade, Schwartz, Kelly, and Partlett’s Torts, Cases and Materials. Foundation Press.
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