Issue

The issue involved in the case is to check that whether Cliff and Marry can sue Susan for the loss accrued to them. In addition to this, this is also to check that whether Cliff and marry can sue Susan for mental shock happened to Marry cause of attacked by Benji and house fire.

Tort is a breach of Civil Liability (Laws, 2018). In general, there are many relationships where one party owes a duty of care in respect to others. In such a situation, it becomes the liability of the first person to perform his/her duty of care. Where a person fails to perform the standard of care, such a situation is known as negligence under tort law (Business Law Dictionary, 2018). When because of the negligence of one person, the other person suffers from a loss, such other person can bring an action against of liable person.

Some relations are well defined under the law where the duty of care exists. For instance in the relationship of Client-solicitor, Parents-Child, Doctor-patient, the duty of care always exists (Edwards, Edwards and Wells, 2011). In addition to these defined relationships, some other relationships are also there, where the duty of care can be established. The case of Donoghue v Stevenson [1932] AC 562 is an important one to study. It was held in the decision of the case, that a person owes a duty of care in respect to his/her neighbor.

To initiate an action under Negligence, some factors must be there. These are defined as under

1. The duty of care: -As mentioned earlier that duty of care must be there. This can be stated that no question of the case under negligence will be there if no duty of care exists between the parties (Law Shelf, 2018). The court determines that whether a duty of care exists in a  case or not. While determining the same, looks after the circumstances of the case and check that whether the defendant was in a position to foresee the risk or not. Apart from the defined relationship, the duty of care can only be established in those cases where the defendant remains in a position to foresee the risk. The decision in the case of Mullin v Richards [1998] 1 WLR 1304 is significant. In this case, a girl became blind due to the negligence of a 15-year-old school girl. The victim girl brought an action against the 15-year-old girl. It was sentenced in the decision of this case, that a child does not own duty of care in respect to a reasonable man, but will owe such duty toward another child of similar age. However, the 15-year girl does not owe a duty of care.
2. Breach of Duty:-The another requirement of a negligent suit is a breach of such duty. The defendant must breach his/her duty of care in the case of negligence. Breach of duty exists where a person fails to behave as a reasonable person and did not take proper care of the circumstances. It was held in the case of Vaughan v Menlove (1837) 3 Bing NC 467 that best judgment of defendant is not enough to prove that he/she acted as a reasonable person. Until unless there are facts to prove that the defendant did not act as a reasonable person, he/she will be held liable for the breach of duty.

Foreseeability of risk is an important term under negligence. It was held in the case of Roe v Minister of Health [1954] 2 WLR 915 that where the risk involved in the case is of nature, that could not be foreseen, then there will be no breach of the duty of care. Further, where the defendant act similar to a reasonable person but still claimant suffer from a loss, the defendant will not be held liable.

1. Loss: -In addition to the existence of a duty of care and breach of, therefore, the third pre-requisites is that the claimant of the case must suffer from a loss. Loss can occur in various forms, such as in the form of economic loss, physical injury, and psychiatric injury. In the cases of psychiatric injury, there can be of two types of victims (E-Law Resources, 2018). One is primary and another one is secondary. Secondary victims are those people who do not directly involve in a case but the cause of negligence of defendant they suffer from a serious adverse impact on their mind. Such impact generally involves nervous attacks and mental shocks. It was held in the case of Alcock & ors v Chief Constable of South Yorkshire [1992] AC 310 that for secondary victims, it is necessary that such victims must have a close relationship with the primary victim.
2. The remoteness of damage:-It is a last and very important aspect of negligence. This rule says that there must be a direct result in the negligence of defendant and loss of claimant. It means the act of the defendant must be the only reason for loss happened to the claimant. In addition to breach of duty and loss of claimant, there must be a direct connection between both of them. For instance, if defendant breaches a duty and claimant also suffer from a loss but the reason of such loss is not the breach of duty at the end of the defendant, the claimant can not initiate an action for damages. ‘But For’ is a significant term here. Court applies the But For the test, while determining that whether the loss could be prevented or not if the defendant would have performed his/her action more carefully.

The court does not consider those cases where the loss occurred to the party is too remote and there is no direct connection with negligence of the defendant. Such breach must be the direct reason of loss.  As stated in the decision of the case, Barnett v Chelsea & Kensington Hospital (1969) 1 QB 438 case, that no matter there is a loss in the account of the claimant, if the same is not related to the negligence of defendant then damages cannot be provided to the claimant.

Rules

In a summarized way, this can be stated that for a successful claim under negligence, this is necessary that there must be a duty of care at the end of the defendant. The defendant must be liable for breach of duty. Further, the claimant must suffer from a kind of loss because of the negligence of the defendant.

Defenses: – These are the excuses that a defendant can use in against of claimant. The lead defenses under tort are contributory negligence and voluntary assumption of risk. A defendant can use the defense of contributory negligence where claimant also breached the duty of care. In such situation, court reduces the amount of total damages to the level of claimant’s mistake (Dongen, 2014). The further voluntary assumption of risk is a circumstance where the claimant is aware of the risk involved and still accept the same. In such a scenario, the defendant is not liable to pay any damages to the claimant (Find Law, 2018).

In those cases where people keep their pets in their homes, it is required to behave more carefully. It becomes the responsibility of pet owners to maintain reasonable care and precautions as they owe a duty of care towards their neighbors. In the case of Lopez v Trujillo 397 P.3d 370, a person owed two pets, who started barking once. Because of fear of such a voice, a kid hit with a van. The dogs were properly chained and behind the fences. The court held that pet owner owed a duty of care and performed the same well. The child was terrified by such sound but by keeping the dogs properly chained, the defendant acted as a reasonable person and therefore is not responsible for any kind of breach of duty.

In the given case, Susan was a pet owner. She owed a pet named Benji who is a Bengal Tiger. Benji was not the harmful for other as she was of a friendly nature but she had an unquenchable thirst for milk and in addition to this, she also had a desire to chase balls of string. Furthermore, she was not expected to hurt anyone. Susan being a pet owner in the case had a duty of care with respect to her neighbors because regardless of the nature of Benji, she was a tiger after all and could attack anyone. As Susan owed a duty of care, she was required to act as a reasonable person. Susan has developed a very strong compound for Benji. Further, she was used to keeping Benji locked. Applying the provisions of Vaughan v Menlove this can be stated that Susan has acted in a reasonable manner. She has not just provided the best judgment, but also actually performed the duty of care. Being a pet owner she could not do anything more than this to keep her neighbor secure from Benji. The issue of the case started with an incident that happened one day when Susan was not at home. The small child of Susan’s neighbors Kim went to Susan’s place to play with Benji. Kim was used to playing with Benji when in the presence of Susan. As that day Susan was not available, Kim herself unlocked the door of the compound. As Benji was desired to have milk, she went out of the compound. Further, she saw Mr. Cliff, Kim’s father with a ball of string and jumped on him.  Mr. Cliff was climbing on his mini tractor with the ball of string at the time when Benji jumped over him. Because of such a jump, he lost his control on truck and truck started running towards Cliff’s house. Mary saw the coming truck and felt a sudden shock. She dropped a pan of cooking on the stove and the house caught fire.

Defenses

Here, Applying the provisions of Donoghue v Stevenson case Susan owed a duty of care towards her neighbors and did not breach the same as she developed a very strong compound to keep her pet. Applying the provisions of foreseeability of risk as stated in the case of Roe v Minister of Health, Susan could not foresee this incident. She has no reason to believe that one-day Kim would come to her house and all this incident would happen. Further, the loss that occurred to Cliff and Mary was not a result of the negligence of Susan. As it was held in the case of Lopez v Trujillos, that a pet owner cannot be held liable for the losses that are too remote, Susan will not be held liable for all the economic loss and psychiatric injury occurred of Mary.

As held in the case of Barnett v Chelsea & Kensington Hospital that even after the existence of losses, the defendant will not be held liable if the same is not a result of his/her negligence, Susan does not seem to be held liable for anything. All the losses that happened to Cliff and Mary were the result of an act of Kim. If she would not open the door of the compound, no such incident would ever occur. Negligence was existed on the part of Kim, however as per the provisions and decisions of the case of  Mullin v Richards, being a child she cannot be held liable for anyone except the other children of similar age.

Cliff and Mary, being the parents of Kim owed a duty of care towards her. It was the responsibility of them to do care of their child as Benji could bring an injury to Kim. Because of Kim, all the incident happened who was the liability of Cliff and Mary, hence defense of contributory negligence can be applied here.

Conclusion

To conclude the issue, this can be stated that no remedies seem to be available with Cliff and Mary because Susan owed a duty of care and did not breach the same. She has acted as a reasonable person and the losses that Cliff and Mary have suffered with, was not related to any act of Susan. Further, Susan will not use any defense as she is not liable to pay any damages to Cliff and Mary although she can use the defense of contributory negligence as Cliff and Mary failed their duty of care

Alcock & ors v Chief Constable of South Yorkshire [1992] AC 310

Barnett v Chelsea & Kensington Hospital (1969) 1 QB 438

Business Law Dictionary. (2018) Negligence. [online] Available from: https://www.businessdictionary.com/definition/negligence.html [Accessed on 14/09/2018]

Dongen, E., V. (2014) Contributory Negligence: A Historical and Comparative Study. Leiden : BRIL.

Donoghue v Stevenson [1932] AC 562

Edwards, L., E.,  Edwards, J., S.,  and Wells, P., K. (2011) Tort Law (5^th ed.). USA: Cengage Learning.

E-Law Resources, 2018) Negligently inflicted psychiatric injury. [online] Available from: https://e-lawresources.co.uk/Negligently-inflicted-psychiatric-harm.php [Accessed on 14/09/2018]

Find Law. (2018) Assumption of Risk Defense. [online] Available from: https://injury.findlaw.com/accident-injury-law/assumption-of-risk-defense.html [Accessed on 14/09/2018]

Law Shelf, (2018) Introduction to Negligence. [online] Available from: https://lawshelf.com/courseware/entry/introduction-to-negligence [Accessed on 14/09/2018]

Laws. (2018) A Helpful Introduction To Torts.  [online] Available from: https://tort.laws.com/torts/ [Accessed on 14/09/2018]

Lopez v Trujillo 397 P.3d 370

Mullin v Richards [1998] 1 WLR 1304

Roe v Minister of Health [1954] 2 WLR 915 

Vaughan v Menlove (1837) 3 Bing NC 467