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1

Donoghue v. Stevenson [1932] AC 562


2
Jones v. Bartlett (2000) 205 CLR 166
3
Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078
4
Paris v. Stepney Borough Council [1951] AC 367
5
Haley v. London Electricity Board [1965] AC 778

Area of Law:
Tort of negligence
Define the Law:
A tort of negligence is defined as a failure of one party to exercise reasonable care, resulting in injury
or damage to another party. Donoghue v. Stevenson
(1)
supports this where the snail in the bottle of
ginger beer is the manufacturers liability, whereby it was established a duty of care is owed by the
manufacturer to the consumer. Where a duty of care is owed by one party to another, it must be
proved that:
A duty of care is owed
The aforementioned duty is breached
Damage/injury occurs as a result of the breach
A duty of care is owed when it is foreseeable that an action may cause injury and the defendants
relationship to such a risk and the nature of the damage suffered. Jones v. Bartlett
(2)
gave insight to
a landlords duties to take reasonable care for the safety of occupants. Reasonably, the landlord is
responsible for defects that should have been known. The case then goes on to describe that an
object is defective if it is dangerous when being used for its intended purpose.
When a duty of care is owed a certain standard of care is required. Considerations to this standard
involve if damage is likely to occur, seriousness of consequence, if the risk was reasonably
foreseeable, and would a reasonable person take precautions. Per Bolton v. Stone
(3)
, the plaintiff
claimed that damage from a rogue cricket ball was a nuisance. The resulting ruling from the high
court was that the object was not a nuisance and also was not a risk due to it being too remote for a
reasonable person to foresee. It is established that negligence is not present if damage is unlikely to
occur and reasonable measurements are taken, such as fencing. The seriousness of consequences is
examined in the case of Paris v. Stepney Borough Council
(4)
, where an employee is blinded in his
only remaining eye by a piece of metal giving rise to the definition of a duty of care in regard to
seriousness being on an individual basis, with individual factors coming into play such as the initial
conditions of one or more parties. To determine if a risk was reasonably foreseeable, an object test
known as comparing what the reasonable person, such as a good citizen, would have done in the
position in question. Furthermore, it is asked whether a reasonable person would have taken
precautions to prevent a damage claimed, such as the case of Haley v. London E.B.
(5)
where a blind
man was injured as a result of inadequate warning given to prevent someone who was blind from
hurting themselves on the unattended construction. It was decided that the reasonable person
would have taken precautions such as placing barriers to prevent someone who could not see the
hazard from becoming injured. If a defendant is found to be at the majority of fault for the above
mentioned factors, then the defendant has fallen below the standard of care required. In the case of
not a precaution not being taken, but the actual design of
6
Voli v. Inglewood Shire Council (1963) 110 CLR 74
7
Caltex Oil (Australia) Pty. Ltd. v. Dredge Willemstad *1976+ HCA 65
8
Amaca Pty. Ltd. v. Ellis [2010] HCA 5
9
The Wagon Mound No.2 [1967] 1 AC 617

the work being defective, liability can arise for pure economic loss. This is demonstrated in the case
of Voli v. Inglewood Shire
(6)
, where an architect is responsible for defective structure design such
that care must be practised in line with what is required of his or her profession.
For economic loss to be recoverable, loss must be a direct consequence of physical damage or
personal injury. Third parties are also owed a duty of care as long as they are foreseeable such as the
case of Caltex Oil Pty. Ltd. v. Dredge Willemstad
(7)
, where the oil company is unable to use a pipeline
that is not their property due to damages caused by dredging. A but for test can be used to
determine if there is causal link between the actions of the plaintiff and the loss of the defendant. In
the case of Amaca Pty. Ltd. v. Ellis
(8)
, the but for test is used to determine whether the probabilities
of asbestos having been involved in the development of lung cancer were significant enough to tip
the probabilities in favour of the plaintiff who was also a heavy smoker. Foreseeability only extends
so far when looked at from the perspective of the reasonable person, in the case of The Wagon
Mound
(9)
it is decided that the likelihood of an event occurring verse the seriousness of the harm
resulting was to be examined with respect to the costs involved to prevent the harm - such as with a
single spark in the wagon mound case igniting a trail of oil on the river causing destruction of boats
and a wharf nearby.
Apply the Law:
The main issue for this case is whether Django Pty. Ltd. is liable for damages to property of Brittle
Bros Pty. Ltd. and the local council, which is a third party to the incident. The most immediate
relationship is between Django which sold one Quentinator small to medium sized dump truck to
Brittle Bros. According to Donoghue v. Stevenson, the question to ask is whether Django failed to
exercise reasonable care with the production of the dump truck or not.
Whether a duty of care is owed in the form of a safe/reliable product is examined with the
observation of whether a standard of care is required. Per the question raised in Bolton v. Stone of
the probability of damage occurring, the question is extended to whether damage is likely to occur if
the dump truck were unsafe is most probable since heavy machinery is known for its dangerous
nature. The seriousness of the consequence of damages that could occur from a malfunction, as
raised in Paris v. Stepney, is obviously large as well due to the sheer size of even a small dump truck.
An important question to the standard of care required is whether the risk was reasonably
foreseeable and whether it was foreseeable that that action may cause injury. Jones v. Bartlett
offers further insight that the product manufacturer has a duty to repair defects that should be
reasonably known with a defect defined as an object that is classified as dangerous when used for
its intended purpose. The event clearly states that the dump truck was indeed used for its intended
purpose, with the dump truck being highly suitable for use in the mining industry and purchased by
a mining company (Brittle Bros) with the mechanical fault arising during a routine lifting
operation. The fault that causes the dump truck to become unstable and roll questions Djangos
design of the truck, since such a fault causes such a serious consequence.
Hayley v. London E.B. asks the question of whether a reasonable person would take precautions to
prevent the truck in the case of a fault, an objective test is raised: would the reasonable engineer
take precautions to prevent foreseeable faults of a serious nature? Such precautions could include

quality control testing to remove faulty objects and to test the overall design in the case of
hazardous situations such as roll overs. Voli v. Inglewood Shire also supports the plaintiff that a
defective design results in the defendant being held responsible. Since this particular Quentinator
has escaped through such reasonable tests and requirements of design, the defendant has fallen
below the standard of care required.
Loss of property and production loss due to the damages incurred by Brittle Bros resulted in pure
economic loss, which is the claim they put forward. Whether there is a causal link between the
dump truck and the economic loss can be decided with the but for test, as used in the case of
Caltex Oil v. Dredge Willemstad and Amaca v. Ellis, asking: but for the dump truck rolling over, would
the tool shed have collapsed and production have halted? Given that the dump truck poses a large
danger in the event described, it can be stated that the dump truck is in fact the causal link to the
economic loss. In regard to the councils protected tree, the case of the Wagon Mound states that
far-fetched events requiring explicitly remote conditions such as the glass shard from the shed
focussing sunlight onto the tree are much too obscure to claim damages against the plaintiff.
Furthermore, costs involved to prevent such an unlikely event would involve moving the tree away
from any building, which would be a costly process to guarantee the survival of the protected
species.
Conclusion:
A tort of negligence has been committed; with a standard of care being owed, the plaintiff falling
below that standard, and damage resulting directly as a result of that standard being neglected. As a
result the plaintiff is required to reimburse the defendant $1,500,000. However, the plaintiff shall
not be held responsible for the damage to the third parties property due to the obscurity of
conditions required for the event that occurred.


1
Henson v. Board of Management of Perth Hospital (1939) 41 WALR 15
2
Stevenson v. MacDonald (1952) 1 TLR 101
3
Twine v. Beans Express Ltd. 62 TLR 458
4
Commonwealth v. Connell [1986] 5 NSWLR 218
Case Study #2 (829 words)
Area of Law:
Vicarious liability as a result of negligence
Define the Law:
Vicarious liability is a present factor when an employer is liable as a result of a tort committed by an
employee, even though the employer is without fault. In the case of Henson v. Perth Hospital
(1)
, the
hospital was liable for the negligent acts of an employed doctor giving a nurse inadequate
instructions for administering medication to a patient. To determine if an employer is vicariously
liable, the integration test can be conducted.
The integration test was declared in the case of Stevenson v. MacDonald
(2)
, defining an employee as
someone who is an integral part of a business. This test is known to be more useful than the control
test because it overcomes the problem of skilled people having control over the work they were
undertaking. However, it has certain drawbacks with contracted individuals as they could also be
seen as an integral part of a business.
Furthermore, for tort liability to be vicarious the employee must have committed the tort in the
course of employment, such as in the case of Twine v. Beans Express
(3)
where it was decided that
while driving the company car was inside his employment duties, providing transport for other
people was outside of it. This is reinforced by the case of Commonwealth v. Connell
(4)
where the
question that must be asked is whether the employee was doing what they were employed to do.
An event that is not in the scope of employment is known as a frolic of his own.
Apply the Law:
The case in question states that the employee of Schultz Services has been negligent due to
insufficient safety procedures being completed, in an attempt to decrease the time required to work
on the machine; hence a tort has been committed.
During the course of the contractors work for Candieland Enterprises Ltd., the fire that results can
be heavily related to the actions of the negligent doctor in the case of Henson v. Perth Hospital. For
the purpose of absolute certainty, to decide if the individual King was indeed an employee of
Schultz Services the integration test, as defined in Stevenson v. MacDonald, can be used to ask if
someone in the position of senior technician is indeed an integral part of a company, with the
answer being that it is. The integration test should not be applied between Candieland Enterprises
and King, as it is stated that Candieland engage Schultz Services to get their machinery fixed not
King as an individual, regardless of any specific instructions given to King about repairing their
property.
For Schultz Services to be held liable for Kings actions, the tort had to occur in the course of
employment. Per Commonwealth v. Connell, King was attempting to fix the machinery as a direct
action taken consciously in his employment to Schultz Services; hence it is clear he was well within
the requirements of his job.

In the scenario that follows of King damaging the company vehicle and another, a problem is raised
as to whether Schultz Services is also liable for the damage. The case of Twine v. Beans Express is a
very similar scenario that that described above; with comparisons being quite clear that Kings
employment requires him to drive the company car to get to and from work sites, but driving to
meet with some friends after work hours is not a requirement of his employment.
However, the crash is described as a direct result of Kings distraction due to an event that occurred
during the course of his employment earlier that day. The but for test may be used to determine a
possible result: but for the fire during Kings work earlier that day, would he have become distracted
and crashed into the other car? It is still a possibility that King could have become distracted by
something else while driving, and hence impaired his ability to recognise that a crash would ensue. It
seems that King was so persistent to see his friends, even after such a traumatising event, that it
brings to question if the reasonable person would have gone to see their friends after such an event,
or would they have gone to seek professional advice. Whether King made the wrong decision after
such an event or the event was not severe enough to blame for the crash, it appears that King is
outside of his employment, and as such is responsible for his actions in this instance; hence the crash
is indeed a frolic of his own.
Conclusion:
Schultz Services is vicariously liable to Candieland Enterprises Pty. Ltd. for the negligent actions of
their employee King, and are required to reimburse Candieland Enterprises for their losses to the
sum of $400,000. King is liable for his actions of causing a car crash and is responsible for the repair
of both vehicles in the form of $20,000.