Tort Seminar Questions – Breach of Duty of Care & Proof of Negligence & Defences
Make your way through the following questions over the two seminar sessions
Breach of Duty of Care

1. What is the basic test for breach of duty of care?
2. What broader range of considerations have courts taken into account when assessing and applying the breach of duty of care test?
3. In your assessment, how important are policy considerations in the courts assessing and applying the breach of duty of care test?

Proof of Negligence

4. Explain the maxim res ipsa loquitur, and ascertain what are the three requirements that must be met for res ipsa loquitur to take effect

Defences

1. How critical are the defences to negligence liability for denying compensation for injury caused by negligent breach of a duty of care?
2. What is required to establish contributory negligence, and what must be proved?
3. On what basis do courts set about apportioning liability for primary negligence and contributory negligence? Do you think it is a science or an art?

Problem Question
Doolittle Ltd own and operate a zoo open to the public.
Doolittle manage the main section of the zoo (large enclosure of horses, zebras, deer, antelope, hippos), the Monkey House (diverse monkeys), and the Reptile House (reptiles, snakes, spiders).
The Big Cat enclosure is managed by Pink Panther Ltd, an expert specialist big cat enclosure manager.
The Monkey House was a particularly popular visitor attraction.  The monkeys were especially playful with visitors, reaching out from the bars of their enclosures, socially interacting with visitors, and above all begging and grabbing for food and possessions.  Doolittle had put up many notices ‘Danger: Stay Away from Monkey Enclosure Bars!’ and ‘Danger: Do Not Feed the Monkeys!’.  However last month, an 18 year old visitor had taken it upon himself to goad and tease the chimpanzee enclosure, with the result that the dominant male chimpanzee was able to grab the visitor against the bars of the enclosure, inflicting severe biting damage to the visitor.
In the main section of the zoo, over the years Doolittle had cut back staffing levels significantly, and the diverse livestock in the main enclosure had become stressed and volatile.  Last month a back-firing exhaust in one of the visitor cars traversing the main enclosure caused the stressed out animals to stampede, terrifying the visitors to the main enclosure and causing very significant damage to many of the visitor cars caught in the stampede.
Doolittle has also over the years cut the maintenance budget for the physical maintenance of the Reptile House.  Last month one of the zoo’s very few poisonous spiders escaped from its tank (it was an Australian black widow spider).  Despite climate issues, the spider survived in the grounds of the zoo and later bit a visitor to the zoo, putting her in hospital and at the edge of death’s door.
Last month all the computer systems in Pink Panther’s Big Cat House failed, all he enclosures unlocked, and all the lions and tigers promptly went on a rampage across the zoo and out into surrounding neighbourhoods.  Much personal and physical harm was done by the marauding big cats.  Pink Panther are claiming that their computer systems had been hacked by a an animal rights activist group.
Advise Doolittle and Pink Panther as to whether they have breached aspects of their respective negligence duties of care, and as to whether any injured claimants could assert res ipsa loquitur against them as defendant to duty of care breach liability.