Essay: Two negligence problem scenario answers (duty of care, breach, causation) (Australia)

A: This scenario concerns the law in relation to the tort of negligence. Meghan and Catherine have suffered severe injuries, as a result of Australia Post not being careful and cautious in regard to receiving a suspicious, large bulging parcel. It is clear that Meghan and Catherine can take legal action against Australia Post for reasons such as leaving the potentially dangerous package unlocked, not in a secure place causing the injury in the first place. Another reason would be for Catherine as she was “administered a drug that was not effective against the snake venom”.
The case of Donoghue v Stevenson outlined three elements that if proven, achieve a negligence case. These elements include duty of care, a breach of duty and causation.
Duty of Care
The first step is to establish a duty of care. The party of the defendant, Australia Post, owes Meghan, Catherine and the general public a duty of care. The workers had established that the parcel could potentially contain a dangerous or illegal substance. As they did not secure the article properly in the cupboard, Australia Post should be held liable for the snakes escaping and not examining the parcel before it was in transit. Therefore, Meghan can sue Australia post as they broke their duty of care by not taking appropriate precautions.
Catherine can also take legal action as the result of her injuries was in relation to the proximate cause of this event, the snakes escaping due to the unlocked cupboard. Catherine is also entitled to take further legal action against the doctor who owed her a duty of care but in return, administered the incorrect treatment which as a result, has made her legs immobile.
Breach of Duty
The next step is to determine whether or not a breach of duty occurred. It is evident that Australia Post is liable for the harm that has been caused towards Meghan and Catherine as they failed to take precautions, resulting in a breach of duty. According to section 5B (1) of the Civil Liability Act (CLA) 2002; A person is not liable for harm caused by that person’s fault, unless the risk was foreseeable. It is indisputable that the risk was foreseeable as the employees of Australia Post, Harry and Will suspected that the parcel may be dangerous, nonetheless, they still placed it in an unsafe place. It is evident that the risk was not insignificant as it is clearly stated in Australia Post’s terms and conditions (prohibited and dangerous goods, clause 57.2.1), they have the right to destroy the parcel under authority if rendered safe or are obliged to deliver the article to the police. Therefore, considering Harry and Will are both employees of Australia Post, it is expected for them to have understood the terms and conditions of their workplace. If correct protocol was undertaken, public liability would not be taken into consideration as proper precautions would have been made. In relation to section 5B (2) of the CLA 2002, it is suspected that if a reasonable person would have taken precautions against the harm, the likely seriousness of the harm would have been lessened as that person would have followed correct protocol by rendering the parcel safe. In the Donoghue v Stevenson case [1932] AC 562, Lord Atkin formulated the neighbour principle which states that the defendant must take reasonable care to avoid acts which they can reasonably foresee would be likely to injure their neighbour. In relation to Meghan and Catherine’s case, Australia post is indeed liable as the employees at that time did not protect their ‘neighbours’, in hindsight, a reasonable person with authority could’ve easily have taken precautions to avoid the risk of harm.
Catherine’s case differs to Meghan’s as she voluntarily tried to retrieve the snake and Meghan was injured by distressing from observation, hence suffering from a heart attack. Nonetheless, Catherine can still pursue her case as she would not have suffered “but for” the snakes being present in the first place. As Catherine was administered incorrect treatment she became severely affected by the venom and can no longer walk.
Causation
The plaintiffs, Meghan and Catherine, are required to prove that the harm they have suffered was caused by Australia Post’s employees, Harry and Will’s breach of duty. As stated in Section 5D of the Civil Liability Act 2002, to determine that the negligence caused particular harm, the negligence was a necessary condition of the occurrence. In relation to factual causation, the issue whether Meghan would have suffered injury “but for” Harry and Will’s breach of duty. Therefore, the scenario demonstrates that Meghan’s heart attack occurred as a result of the snakes escaping. It is evident that Meghan’s injury would not have happened if Harry and Will rendered the parcel safe. This is supported with the use of salient features as the vulnerability of Meghan would be tested whether she was capable of protecting herself from Harry and Will’s conduct. Nonetheless, she was not able to protect herself due to the uncommon nature of the snake being present in suburban Sydney.
It is evident in Catherine’s case that the failure of making the parcel rendered safe was indeed a necessary condition of the occurrence of her injuries. Catherine’s injuries were sustained by her own doings, voluntarily handling the snake. Furthermore, Catherine is entitled to take legal action against Australia Post as they evidently breached their duty of care. Catherine can also take legal action against the hospital as she is entitled to compensation for a medical error as she was provided treatment which was ineffective towards the snakes venom. Nonetheless, this addresses the “but for”, due to the fact that if the doctor “had given the correct treatment she would have fully recovered”.
Therefore, it is evident that Meghan and Catherine are entitled to sue Australia Post in the tort of negligence as they breached their duty of care in not taking correct precautions in this circumstance. Catherine is also eligible to take legal action against the hospital that administered her treatment as it was evidently a medical error. The plaintiffs have a high chance in succeeding their case as their injuries are severe and were evidently caused by the breach of duty.
B: In this situation, a duty of care is owed to Edvard and Frida, the parents of Pablo as they were victims of misleading and deceptive conduct by multiple parties.
Under section 18 of the Australian Consumer Law (ACL) year and under section 12DA of the Australia Securities and Investments Commission Act (ASIC) 2001, it states that a person must not engage in conduct [in relation to financial services] that is misleading or deceptive or is likely to mislead or deceive. It is clearly evident that Merlin and BNQ should be held liable as Merlin made fraudulent actions, as an employee for BNQ they are held liable for allowing him to take action. This is due to the fact that he was not authorised to be promoting investments in real estate, nonetheless, Edvard and Frida are able to take legal action. Even though Pablo’s parents English is competent and are unable to understand complex matters to of taken any reasonable care when necessary, it does not asolve Merlin and the BNQ from responsibility. This is due to the fact that a duty of care is owed to Edvard and Frida by Merlin and BNQ as they came to the financial institution with the intention of receiving assistance with investment. (Commercial Bank of Australia Ltd v Amadio [1983] HCA14)
Edvard and Frida are also able to take legal action against BNQ as they were deliberately inactive towards them which is a breach of their duty as BNQ clients. It is stated under section 2(2) of the ACL that engaging in conduct is a reference to doing or refusing to do any act. This is evidently a breach of duty as Edvard and Frida were trying to get into contact with Merlin but he was deliberately inactive. Furthermore, the family contacted BNQ but was told they had no interest in them. It is the financial institutions duty of care to respect their clients and this was evidently breached through their deliberate inactivity.
The estate agents are also held liable as they exploited the special disadvantage of Edvard and Frida’s language capability. As stated under section 21 (2) (c) of the ACL, whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services. The estate agents owed a duty of care to Edvard and Frida to explain the income of possible applicants that may come through to their potential investment properties. As Merlin falsely claimed that the properties are fully let to students during the year and visitors during the summer periods, Pablo’s parent’s were not receiving income, hence their need to take legal action.
Therefore, it is unmistakably evident that Edvard and Frida, the parents of Pablo, were owed a duty of care by Merlin, BNQ and the estate agents. Nonetheless, the parties are held liable as they breached section 18 of ACL.