The first step to establish negligence is to decide whether the defendant owe a duty of care to the plaintiff. The defendant is obliged to take reasonable care to its neighbor. Neighbors are persons who are so closely and directly affected by ma act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question: Donoghue v Stevenson. Thus, the damages occurred must be reasonably foreseeable. In this case, MHRC and James are neighbors since they are service provider and customer.
Service providers including professional service providers generally owe a duty to take reasonable care not to cause foreseeable injury in providing the service. Professional duty of care to clients of MHRC is expected. Thus, MHRC owed a duty of care to James. Furthermore, in this case, Sonic Products Australia Ltd and James are Distributors and customer relationship. Distributors including retailers owe a duty to those persons whom they should have foreseen could be injured if they failed to take reasonable care. Sonic Products Australia Ltd owed a duty of care to ensure that the laser machines imported are not defective.
Thus, Sonic owed a duty of care to James. The second step to establish negligence is to determine whether the defendant fail to exercise the required standard of care. To decide whether the defendant exercise the required standard of care, it needs to be determined whether a reasonable person in the defendant’s position would have taken those precautions. Weighing test in Wyong Shire Council v Shirt: this involves consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense and difficulty of taking alleviating action.
Penelope as an employee of MHRC, she owed reasonable care to James. In this case, although the chance of the occurrence of the accident was little, but once happened, the consequence was very serious. In addition, the accident would never happen if Penelope did not leave James alone in the room. Thus, Penelope breached her duty of care by: commencing treatment despite James being intoxicated and on drugs, leaving the room to answer a call and not advising James of the risks associated with the laser treatment. However, there is no sufficient evidence to show that there was a breach of duty of care from Sonic Products Australia Ltd.
According to the background fact, Sonic revealed that 12,000 such machines have been sold worldwide, and there are no other reported cases of the machine failing to switch itself off after the automatic timer was set. That is to say, although the possibility of someone may get hurt by the laser machine was foreseeable, but the probability was not strong because there was no other defected machine reported. Thus, it is hard to decide whether Sonic Products Australia Ltd failed to exercise the required standard of care.