Part a) Meghan and Catherine have approached you for advice as to who they can sue in these circumstances and the likelihood of success if they sue in the tort of negligence. Advise the parties?
Introduction:
Negligence in a standard definition is the inability to behave in a skilled and reasonable manner. However, in legal terms negligence initiation potentially could result to harm and injuries that establishes an accountable case for the defendant in the court of law to the plaintiff. To inaugurate, the defendant's accountability to the negligence, the plaintiff must meet the court's regulations by warranting duty of care, breach of duty and damage is covered. Not fulfilling these three principles will equate to the failure of the case. In this scenario, Harry and Will receive a suspect delivery post and believe it to be an illegal substance, so they leave it in an unlocked cell, the snakes escape and travel through the streets. Meghan was confronted by the snake on the road, from distress it triggered a heart attack, when Catherine tried to prevent the snake from attacking her she was bitten on the leg. At the hospital the doctor gave Catherine a drug that did not heal or retrieve, as a result, she lost her leg. The report will discuss whether the individual whom sent the illegal post should be sued for if Harry and Will are liable and the likelihood of success if they are sued in the tort of negligence.
Duty of Care:
Duty of care in tort law of negligence is a responsibility upon the defendant to take legitimate care to avoid causing injury to the plaintiff in all the circumstances of the case (Terry, 2016). In this court case, the plaintiff Meghan and Catherine, must have to provide evidence that a duty of care was beholden by Harry and Will (the defendant), are employees of Australia Post sorting mails centre, they were confronted with this parcel which seemingly appeared illegal and dangerous. Instead of putting the parcel in a locked safe unreachable area, they left it in an unlocked cupboard. The parcel contained live snakes in which they escaped into the streets. Although, unknown to Harry and Will on what existed in the parcel they still needed to keep it in a safe location, due to the fact that it did not have any secure organised corporate label. Therefore, the defendant was in the grounds of reasonable foreseeability and that any person in the same situation as Meghan and Catherine would have suffered the exact outcome if they were present in that environment. This 'neighbour principle' was outlined in the case of Donoghue v Stevenson [1932] AC 562) (Donoghue v Stevenson). Under these circumstances, Harry and Will or even Australian post office owe a duty of care negligence for Meghan and Catherine's injuries, because it is reasonably foreseeable that an injury would occur because of the poisonous snakes on the streets. This case is similar to Donoghue vs Stevenson in that Harry and Will as a mail sorting employee has a duty of care and should have considered the fact that the parcel could have been opened by any employee or customer at the post office and they can possibly get harmed by what is in the parcel due to its suspicious delivery fraudulent (Burns, 2013). The 'neighbour principle' that had been positioned by this case had implications that anyone who could prudently be affected by the defendant's omissions could establish a case, and this is the first element of negligence that would be recognised.
Breach of duty:
Breach of duty is applied if the claimant can affirm that the risk was foreseeable, the outcome of harm was not minor and that a rational individual in the exact situation would have taken immediate safety measures against the risk of harm. When the court concludes on a verdict of negligence in the breach of duty, they look at the likelihood of the employer's provisions. The breach of duty in the case of Meghan and Catherine was contented as it was reasonably foreseeable that the harm would occur due to the fraudulent parcel delivered to known domestic liable business (Australian Post). Harry and Will should have been mindful of the dangerous anonymous parcel they left in an unlocked cupboard and that a reasonable individual in any situation like that would take safety measures of the company also present in the room. The harm that Catherine has encountered with losing her leg from the venom is an important one as she has not recovered even after several months from the attack. Therefore, it's a long-term outcome that the breach of duty has been fulfilled.
Damage:
The final factor of negligence is damage. The plaintiff must prove in court that the omissions that the pain they endured was the outcome of the defendant at the time. The court will take into account two delegations to be appeased, scope of liability and factual causation. The factual causation is satisfied in the case of Meghan and Catherine as the physical harm had taken place due to the negligence of the defendant. Finally, when the factual causation is accounted then the court will grapple on to the second concern of damage in this case it is the scope of liability.
The scope of liability is noted as the mail sorting agents (Harry and Will) didn't take safety precautionary measures when assorting the fraudulent parcel un-carefully.
In conclusion, Meghan and Catherine has satisfied all three factors required to establish a case against Australian post to establish liability for negligence.
Defences to negligence:
The defences that Australia Post has pushed forward is that the plaintiff's claim is not liable and that the cause of the snakes to escape the unlocked cupboard of the post office is Harry and Will's fault for not following the safety regulations of the Australian post employee safety and health learning guide.
Advice:
The advice that would be given to Australia Post is to educate and inform their employees on the various illegal transportation of goods delivered to the office and how to deal with them in a secure manner, managing the safety and healthy requirements of the office. Also, to make sure that they are aware of their surroundings or if anything suspicious occurs they are to make sure they inform the police and take precaution.
Part B) Analyse this situation, advising the family of all reasonable legal arguments as to whether a duty of care was owed to them and if so by whom. Explain who might be held liable.
Duty of care:
The BNQ will be liable for the negligent misstatement. Pablo's parents, Edvard and Frida have enough evidence to prove in court that Merlin a consultant from BNQ failed to show a duty of care as Edvard and Frida under reasonable circumstances, have acted upon the information they were being given from Merlin's real estate convictions. Notably reasonable foreseeability is not accounted within this dilemma, as the family are not aware of Merlin's un-expert advice on real estate. In addition, Merlin did not even acquire the position as real estate consultant in the BNQ corporate. Edvard and Frida can argue that the defendant does not even have a proper management or employment positions as Merlin did not even do real estate. This signifies the lack of professionality in the workplace and has caused fraudulency in Pablo's parents investment of the house.
Breach of Duty:
BNQ would not be liable for breach of duty as they had no way of knowing that Merlin is promoting property investments in real estate, therefore it is the family's duty to make sure they take precautionary measures before investing into two units. The breach of duty is notably not satisfied for the family.
Damages:
The information or advice was provided from Caveat to consult BNQ a financial institution to balance out the money they sued from Pablo's car accident defendant. The fact that Edvard and Frida from their own reasons trusted Merlin on the real estate investments is solely based on their acceptance of Merlins promotion. That was out of there comfort zone, then Frida and Edvard will not be able to sue for damages against BNQ and Merlin.
Advice:
The advice that would be given to BNQ's financial institution is to next time not to suggest a consultant that would promote real estate investments when they are clearly not qualified, unless they have actually spoken to other property advisors. Moreover, BNQ should choose a reasonable real estate consultant that takes precautionary actions and that the person would show them around the properties was experienced with the system, had knowledge of the area, the rent that must be paid and the expertise of the area.
Reference List:
Burns, K 2013,'It's not just policy: the role of social facts in judicial reasoning in negligence cases', Torts Law Journal, vol.21, no.2, pp73-105.
Terry, A & Giugini, D 2016,'Chapter 8 Torts: Concepts of Liability', in Business and the law, Thomson Reuters, Pyrmont, NSW.