Intro
Part A is a negligence case in which the plaintiffs Meghan and Catherine are attempting to receive compensation from the defendants Australia Post (Will and Harry), the sender and the local hospital. The damages that Meghan received a heart attack and Catherine received an ineffective treatment causing paralysis.
Duty Of Care
Shown through Donoghue V Stevenson duty of care is owed to anyone who is closely or directly affected by an act or omission. In the case of Catherine and Meghan they do have a duty of care from Australia post as shown through the Public Governance Act of 2013 where an official of the commonwealth must perform with a degree of care and diligence, however due to the nature of the case with the parcel being illegally transported it is clearly not foreseeable that such consequences would come as a result, therefore, it would not come under the requirements needed for establishing a duty of care for Australia Post. Likewise, the sender did not owe the women a duty of care as his duty of care was to the post service and it would be unforeseeable that the snakes would escape and cause harm outside the building.
The hospital, however, does owe Catherine a duty of care as she was a patient and their duty of care is to the patient’s medical needs. So the local hospital owes Catherine a duty of care for taking care of her injuries and nursing her back to health as best they can, and the first element of Negligence is satisfied.
Breach of Duty
The Breach of Duty elements that need to be proven are specified in the Civil Liability Act 2002 in section 5b in which:
Risk was foreseeable
The doctor would know the risk that the poison could do to seriously injure Catherine and should have known how to prevent such a risk from continuing.
This also would likely prevent Meghan from suing either Australia Post or the sender as both could not have known that the snakes would escape the building and cause harm. The sender did have an obligation to the postal workers both the sender and Australia Post could not have had an obligation to a stranger down the road.
The risk was not insignificant
Shown through the case Catherine was bitten by a snake as she tried to retrieve one and as a result, had been severely affected by the venom. She was then given ineffective medicine, which had caused the poison to take full effect resulting in paralysis. Had Meghan’s case been foreseeable she too would have a significant risk as she suffered a heart attack.
Probability
The defendant would have most likely have increased their standard of care and been more careful when administering an antidote, as the risk of the injury would be too high without that kind of care. The postal workers would have to take steps to secure the snakes and the sender would have to legally transport it following safety regulations had Meghan’s case gone through.
Seriousness
The defendant would need to take better measures in the case to prevent the poison from advancing as it could be worse and could do so much damage to her body. The potential injury would be high for both the postal workers and the receiver so higher care would be needed due to poisonous snakes.
Burden
Due to time constraints, they would need to find out the species of the snake and figuring the best antidote to remedy the poison as well as treat her quickly before the poison does more damage to her body. Practical constraints such as a restraining container, antidotes on hand and such would be costly and time consuming for a single time which would have been hard on the postal workers and sender.
Social Utility
As a doctor, they would need to handle multiple patients and as a result might be needed elsewhere more urgently. As more pressing matters could attract their attention. The postal workers have hundreds of mail to check that could be more important which could lead to a drop in standard of care
Damage
Factual Causation
The Doctor owed a duty of care to the patient Catherine and she had been given the correct treatment and effective medicine she would not have become paralyzed. The snakes escaped and shocked one and bit another causing harm to both women.
Scope of Liability
Due to the injuries Catherine had suffered caused by the carelessness of the doctors who had not checked or noticed that the antidote given was ineffective which would lead to the poison being untreated and causing damages to her body. This would have lead to her needing a wheelchair for the rest of her life and Megan’s heart attack could have caused loss of life.
Overall
Catherine does have a case in suing the local hospital and would likely be successful in suing for the tort of negligence however both her and Meghan would be unsuccessful in suing Australia post as it would not fit the criteria for breach of duty as it was unforeseeable. If not for that it would likely be successful as well.
Part B
Intro
This is a negligence case in which the plaintiffs Pablo, Edvard, and Frida are attempting to find out who is liable out of the defendants Merlin and BNQ. The damages are financial in nature and will be discussed below.
Duty of Care
In this case, Merlin has a duty of care to the plaintiffs, as he was their “Service Advising Client” who had recommended them a range of investments. His duty of care is to look after his clients (the plaintiffs) investments.
Shown through Hedley V Heller & Partner the factors that create a duty of care are:
Reasonable reliance
Where the defendant knew that the plaintiffs would rely on his words as he was in a position that they could trust and recommended by someone they knew as well as they were acting reasonably and relied on his words with the assumption that he had knowledge in this field.
Special Skill
The Defendant was in a position in which he could have been perceived as an expert in the field as it was assumed he was authorized on behalf of BNQ.
Request for information
The defendant on the first meeting took details of their circumstances and began to use that information to search for a range of investments.
Financial interest
The defendant was paid a cost for organizing services through estate agents
Disclaimers or assumptions of liability
An assumption of liability that they would receive rent through him showed through them calling BNQ
Breach of Duty
Risk was foreseeable
As a financial advisor, the defendant should have known about the downturn in units being rented and should have warned the plaintiffs about this risk. By doing research into the area it would have become apparent as well as being informed by the estate agents.
The risk was not insignificant
The risk had financially hurt the family whom heavily relied on the income the investments made.
Probability
The defendant would likely have warned the plaintiffs about the situation with the renting and would have come up with solutions if they had already bought it but if not then would advise them on another place more suitable.
Seriousness
Since the plaintiff is in a financially dependent on the investments it would be a better decision to pick safer locations with a reduced risk of change as to relieve their financial burden.
Burden
The defendant would have to take into consideration the plaintiff’s financial situation. They would need to choose cheaper locations and would have to do more research, which would take more resources.
Social Utility
In wanting to earn the plaintiff money perhaps he was hasty in advising property as their money and time were draining which would cause the advisor to start looking faster.
Damage
Factual Causation
The defendant owed the plaintiff a duty of care in which he had breached by not upholding the terms of the agreement and under the Corporations Act 2001 a financial advisor cannot engage in misleading or deceptive conduct and cannot make false and misleading statements both of which he had done.
Scope of Liability
Due to the negligent act of the defendant in mishandling and misleading the plaintiffs it directly affected and caused harm to the plaintiff’s financial and emotional wellbeing.
Overall
The plaintiffs would likely be successful in proving that the defendant owed them a duty of care and that the defendant should be held liable for the damages incurred.
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