Elements of Negligence

The issue is to check that whether Cliff and Mary can sue Susan for the economic loss occurred to them and psychiatric injury that happened to Mary. Further, this is also to check that whether Susan is eligible to take the help of any defense and if yes then what defense it will be.

Tort is a breach of civil liability. Tort is basically a wrongdoing by one person to another and can be done in many forms such as defamation, nuisance, and negligence.

Negligence: – Negligence is a situation where a person, who owes a duty of care, breaches the same and because of such breach, another party to case suffer from a loss (Rottenstein Law Group LLP, 2018). To initiate a claim under negligence, existence of a duty of care is a much-needed requirement. If the duty of care is not there in a case, there will be no question of negligence. The duty of care requires a person to act similar to a reasonable person hence this can be stated that negligence is a circumstance, where a person fails to act as a reasonable person (Find Law, 2018).

In general, many of the relationships are there in which a person owes a duty of care towards the other person. Some relationships are clearly defined under Tort Law, where a person owes a duty of care and in rest of the cases, the court decides that whether an element if the duty of care exists or not. To establish a duty of care some elements must exist there.  These elements have been decided in the case of Caparo Industries PLC v Dickman [1990] UKHL 2. According to the decision given in the case, there must be three elements to establish a duty of care. These elements are

1. Risk involved in a case must be foreseeable (Horsey and Rackley, 2017)
2. Parties of the disputes must have a relationship of proximity between them.
3. Imposition of penalty on defendant must be fair, reasonable, and justifiable (Seth Lovis & Co., 2018).

Apart from the defined relationships, in every other relationship, based on the aforesaid factors existence of duty can be checked. Further, it was held in the decision given in the case of Donoghue v Stevenson [1932] AC 562 says that a manufacturer owes a duty of care in respect of consumer. In this case, the neighborhood test has also been established. It was given in the decision that a person owes a duty of care towards his/her neighbor. 

The facts and decision of the case of Mullin v Richards [1998] 1 WLR 1304 is required to study here. It was given in the decision of this case that a child cannot be held liable for duty of care. A child only owes a duty of care towards other children of similar or less age.

Duty of Care

In addition to the existence of a duty of care, breach of the same is also necessary. If a person, who owes a duty of care and fulfill the same, negligence cannot be established. In the case of  Roe v Minister of Health [1954] 2 WLR 915, the risk involved was of such a nature that could not be foreseen, hence court held that no breach of duty was there. Breach of duty of care exists in those circumstances where a person does not act like a reasonable person and not perform his/her standard of care

Apart from the existence of the duty of care and breach thereof, the third requirement of a negligence case is a loss. It is necessary that due to a breach of the duty of care by the defendant, the claimant must suffer from a loss. The loss does not refer to only physical injury but also include property damage, economic loss, and psychiatric injury. Further, under psychiatric injury cases, the defendant is liable towards two people that are primary victim and secondary victim. A secondary victim is that person who is not a part of the incident directly but witnesses an event that happened to their dear ones and because of this, they suffer from a sudden mental shock. For secondary victims, in the case of Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 this is necessary that they must have a close relationship with primary victims. If there is no primary victim in a case, the secondary victim cannot exist there. If the defendant breaches his/her duty of care but the same not bring any loss to the claimant, then a claimant cannot initiate an action against the defendant.

The remoteness of damages is another aspect of a negligence case. This aspect says that the loss occurred to a claimant must not be too remote and must be a direct result of the negligence of the defendant. It was held in the case of Re Polemis & Furness Withy & Company Ltd. [1921] that damages of the claimant must be directly related to the negligence act of the defendant. If there is a loss in a case that is too remote and is not a direct result of the negligence of the defendant, the defendant cannot be held liable to pay off such damages to the claimant of the case. The case of Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 has established the ‘But For’ test. According to the reasoning of this test, a defendant will only be held liable to pay damages to the claimant if the claimant suffers from losses because of negligence committed by the defendant.

Breach of Duty of Care

This is to mention that if defendant owes a duty of care but cannot foresee the risk because of the nature of that risk, then he/she will not be assumed to be in breach of duty. The decision was given in the case of Tremain v Pike [1969] 1 WLR 1556 is important to study. It was given in this case that a defendant will not be held liable for breach of duty if the risk was not foreseeable. Defenses 

Defenses are the arguments on the part of the defendant in a case that persuade the court that the defendant is not on guilty or is on part of guilty (Merriam-Webster, 2018). Under tort law, some defenses are given that a defendant can use to establish him/her not liable for the damages of the claimant. Contributory negligence is the most used defense under Tort Law. A defendant can use this defense in those circumstances where in addition to the defendant, the claimant also fails to take care of him/herself. In case of the applicability of this, court reduces the amount of damage up to a reasonable level (Witting, 2015).

Defenses can also be used in that situation where a defendant performs his/her duty well but claimant suffers from a loss. In such a situation, But For test can be applied. If the defendant proves that he/she acted like a reasonable person and did not fail to perform the duty of care, then he/she will not be held liable to pay any damages to the claimant.

Applying the provisions set out in Donoghue v Stevenson, a person owes a duty of care towards his/her neighbor. This duty enhances where a person is a pet owner. Keeping pet can be held dangerous for the neighbors. of Lopez v Trujillo 397 P.3d 370 is a significant case to study here. In this case, the duty of care and breach of the same has been explained in relation to pet owners. Moving towards the facts of the case, this is to inform that in this case, a child hit with a car because of fear of two dogs. These dogs were the pet of the neighbor of that child. One day they barked so loudly and because of that terrible sound, the child got fear and hit with a car as the sound was so sudden. Both of the dogs were chained it was held in the decision of the case that the owners of the pet acted as a reasonable person by keeping them chained and the incident was not foreseeable at his end, therefore he is not liable to pay any damages to the injury suffered to the child.

Loss

Therefore in conclusion of the rule, this is to state that four factors must be there in a case of negligence that are as follow:-

• Existence of Duty
• Breach of Duty by defendant
• Loos occurrence to claimant
• Loss is a direct result of negligence of defendant (E-Law Resources, 2018).

Facts

Susan was a pet owner. She had a Bengal Tigress named ‘Benji’. Benji was very friendly and not harmful to people. Although she was very crazy about milk and she had a desire to chase the balls of strings. Susan was very careful about Benji and developed a very strong compound for Benji. Kim, the child of one of the neighbors of Susan was used to go to Susan’s house and to play with Benji in the presence of Susan. One day, when Susan was not at home, Kim went to her house, as she wanted to play with Benji. Benji was locked in the compound, however, Kim knew that where Susan keep keys of the compound. She takes out the keys and opened the door of the compound. Benji came out and Kim was not able to control her. Benji saw Mr. cliff (who was the father of Kim) with a ball of string. As she had a desire to chase these balls, she jumped over Cliff. Cliff was climbing up on his tractor and cause of Benji’s attack; he lost the control over the tractor. Cliff’s Mary saw this incident and dropped the pan of cooking oil on the cooktop. Because of this act of Mary, her house caught fire. The whole incident attracted an economic loss to cliff and Mary. 

Existence of Duty of care

Now applying the decision of the case of Donoghue v Stevenson, Susan owed a duty of care towards her neighbors. She was required to act as a reasonable person. As she was also a pet owner, her duty of care enhances more up to a level.  

Breach of Duty of care

Susan has developed a strong compound for Benji. She was used to keeping her in that Compound only. In addition to this, the compound was locked all the time and Susan did not leave that opened when was not at home. Applying the decision of the case of Lopez v Trujillo, Susan acted as a reasonable person and did not breach her duty of care.

Foreseeability of risk

The risk involved in the case was not at all Foreseeable. Susan had no reason to believe that one day Kim would come at her come in her absences and all this incident would have happened. She tried her best to provide the safeguard to her neighbors and every other outsider from Benji. As per the decision of the case of Tremain v Pike, Susan does not seem to be held liable as she could not foresee the risk.

Remoteness of Damages

The lead reason for the economic loss was the act of Mary. She dropped the oil to the cooktop and therefore the house caught fire. Further, the reason for the sudden shock happened to Mary was an attack by Benji on her husband. None of the loss was a direct result of the negligence of Susan. Further, negligence did not exist in fact in this case. Susan paid off her duty of care well and did not breach the same. 

The factor behind the entire incident was Kim’s mistake. She might not open the door of the compound. Because of her negligence, all the losses occurred in this case. However applying the provisions of Mullin v Richards, being a child she cannot be held liable for negligence with respect to anyone except the other children of similar age. Being the parent of Kim, cliff and Mary owed a duty of care towards her and therefore it was their liability to take care of the actions of their daughter.

Defense

Although Susan did not breach the duty of care, yet she can take the defense of contributory negligence. She can argue that Cliff and Mary breached their duty of care. It was their liability to look after the actions of their daughter and they failed to do so.

Conclusion 

Cliff and Mary cannot initiate an action against Susan for breach of the duty of care. Further, they cannot claim damages from Susan either for an economic loss or for metal injury happened to Mary. Further, Susan can take the defense of contributory negligence 

References 

Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310

Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428

Caparo Industries PLC v Dickman [1990] UKHL 2

Donoghue v Stevenson [1932] AC 562

E-Law Resources.  (2018) Negligence. [online] Available from: https://e-lawresources.co.uk/Negligence.php [Accessed on 17/09/2018]

Find Law. (2018) Elements of a Negligence Case. [online] Available from: https://injury.findlaw.com/accident-injury-law/elements-of-a-negligence-case.html [Accessed on 17/09/2018]

Horsey, K., and Rackley, E. (2017) Tort Law (5^th ed.). UK: Oxford University Press.

Lopez v Trujillo 397 P.3d 370

Merriam-Webster. (2018) Defense. [online] Available from: https://www.merriam-webster.com/dictionary/defense [Accessed on 17/09/2018]

Mullin v Richards [1998] 1 WLR 1304

Re Polemis & Furness Withy & Company Ltd. [1921]

Roe v Minister of Health [1954] 2 WLR 915

Rottenstein Law Group LLP. (2018) What is Negligence? [online] Available from: https://www.rotlaw.com/legal-library/what-is-negligence/ [Accessed on 17/09/2018]

Tremain v Pike [1969] 1 WLR 1556

Witting, C., (2015) Street on Torts (14^th ed.). UK: Oxford University Press