Paper Example on Environment Law

Introduction

Negligence is a breach of the duty of care which can cause economic loss and defects in a corporation. Whether someone's acts prove to be of carelessness or breach of duty, depends on the contractual agreements between parties A and B. Are there grounds for a cause of action by Donald & Co that can lead to a probable lawsuit against the contractor Billy Jean? The answer to this question might affect the courts ruling on the case if Donald & Co decide to sue the relevant party. However, it is important to note that Donald & Co were directly linked to the Owner's Corporation, Sergei, from whom they bought Petersburg Dreaming. In this case, does the duty of care shown to Sergei by Billy Jean also apply to Donald & Co? If so, then the corporation has a cause to sue Billy Jean.

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There are four elements that Donald & Co must prove in order to be able to win the suit against Billy Jean. These elements include duty, breach, cause, and harm. All these four cases must be explicitly met if the case for negligence is to be established.

Issue

Firstly, duty can be said to be a legal obligation. It is a key element in determining whether the defendant owed the plaintiff a duty. There are two types of Duty that can be implicated in the case. They include the duty of care and special duty. In the current case, Billy Jean was a contractor that had not been able to erect a building of the same nature as the Petersburg Dreaming. Her experience in building and construction was inadequate and was characterized by few projects that involved. In determining the duty of care, we have to answer a critical question first: Did Billy Jean act in a reasonable manner and would any other reasonable contractor act the same way?

Secondly, the breach is simply the discretion of duty or law. After noticing the existence of a duty, did Billi Jean breach it? In this case, the breach of duty was done through failure to act in a certain manner that could have changed the outcome (economic loss). In what ways did Billy Jean breach the duty? Was the plaintiff aware of the possible defects before buying the complex or did they just go in blindly? Again, was the breach of duty both proximate and actual cause of harm to Donald & Co?

Thirdly, harm is the damage that the plaintiff might have experienced regarding the negligence of the defendant. In this case, did the Donald & Co suffer any harm so as to make it possible for a negligence suit? Again, did the Donald & Co attempt to mitigate the damages?

Rule

The existence of a duty of care is a crucial aspect in determining the cause for negligence as said by the supreme court in Sullivan v Moody, "... a defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff"(French C. et al, 2014, 7). Here, the duty of care arises when Billy Jean has a sufficient knowledge such that a reasonable man in the position of the contractor would be able to anticipate for future harm as a result of her actions.

To determine whether Billy Jean breached we should be able to assess her probable acts and the foreseeable outcome that might have resulted in the economic loss for Donald & Co. The rule in the application is "was the risk of harm to Donald & Co foreseeable" and if so, did Billy Jean meet the required standard of care? Once the breach is identified, it is also paramount to note the type of damage (physical or economic loss), which only occurs "when damage has taken place." (John Pfeiffer Pty Ltd v Canny). A cause of action in tort does not exist until the damage is done to the plaintiff (French C. et al, 2014, 10).

Lastly, the plaintiff must suffer actual damage and show efforts of mitigating the harm. Jean would not be liable for the damages that occurred in a case where Donald & Co never mitigated.

Analysis

Sergei is the owner of the property and looks forward to making profits after the completion of construction of the complex by Billy Jean. On the other hand, Billy Jean does not have the proper experience to accomplish the construction. In addition, it is not clear whether Billy Jean disclosed her inability to man the project and if so, Sergei would not have hired her to build the Petersburg Dreaming complex. The project was done by Billy Jean, and there is no information that shows any control of Sergei over the operations during the construction process. Billy Jean had control over all the activities and thus was liable for the defects resulting from the case.

Showing care involves disclosing or rejecting the work at hand if one feels unable to accomplish. Billy Jean was aware that the building was going to be sold out by Sergei. That knowledge is enough to trigger certain actions of care for the new owners of the complex, Donald & Co. It is only reasonable that lack of experience begets poor work. It was reasonably foreseeable that the limited experience by Billy Jean would cause a complication later in the future. On the contrary to all these signals, Jean decided not to act and in so doing, led to defects after few months of construction.

Donald & Co started facing defects just months after they acquired the Petersburg Dreaming complex. 78% of the lots in the building bore an approximate of AU$20 million in economic loss. Before Donald & Co could decide on what to do, they had lost an approximate of AU$40 million dollars as a result of the defects caused by Billy Jean. In this case, the provided facts show that Donald & Co was the first agency to acquire the property making it a third party in the case. Owners Corporation Strata Plan 61288 v Brookfield Multiplex is a case that can be relied on better analysis of what the judge might say. In the case, "the plaintiff is a true successor in title to the interests of the developer" (French C. et al, 2014, 25). The interests of Sergei, which involved protection from vulnerability, is inherited by Donald & Co.

After the lead agent of Petersburg Dreaming found out about the defects, they went to Sergei, who had sold them the complex. In so doing, Donald & Co mitigated the damages. Even though Sergei never offered the compensation, they showed an effort to control the situation. In this case, Donald & Co is not liable for negligence.

Conclusion

Billy Jean did not act as a reasonable person. She was aware of her inexperience and yet she went on with the project without disclosing hence lack of "Duty of Care." Even though there is no strict formula that can be used in determining the level of breach (Dixon CJ & JJ, 1954), Jean was aware of the possible outcome of her shortage of experience. She failed to act according to the standard of duty and natural test of man which makes it fit for breach.

Due to the negligence of Billy Jean, Donald & Co suffered losses even after their efforts to mitigate the damage. There is no contract agreement between Sergei and the Donald & Co which makes the case even difficult. Under the cl 32.7, the "purchasers could have contractual rights which protect them from the risks of damage." (French C. et al, 2014, 15) However, that is not the case with Donald & Co because there is no information regarding a contract or the roles of the developer in case of a damage.

The court might find that Billy Jean owed Donald & Co a duty of are which could have significantly reduced or avoided the damages experienced. The fact that Billy Jean was aware of her inability to construct the Petersburg Complex, makes the case more favorable for Donald & Co. Every reasonable contractor should be able to foresee the outcome of a project and assess the risks involved early in advance. Nevertheless, that is not the case with Billy Jean. She failed the test of human reasoning and cost Donald & Co millions of losses. Again, the fact that Billy Jean had not attended such a project before, that exceeded 1 million Australian dollars, makes it even more interesting. The defendant might be found to have acted in her own interest (for the money) without caring for what happens to the purchasers of the complex.

References

Dixon CJ, Webb and Taylor JJ (1954) BELLGROVE v ELDRIDGE - BC5400380 HIGH COURT OF AUSTRALIA.

French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ (2014) BROOKFIELD MULTIPLEX LTD (ACN 008 687 063) v OWNERS CORPORATION STRATA PLAN 61288 and Another -313 ALR 408 HIGH COURT OF AUSTRALIA