A heavy steel beam was being lifted by an overhead crane on a construction site operated by Crazy Bros. Suddenly the steel cable of the crane snapped and the beam fell some 5 metres, landing on a pile of timber. One of the planks of timber flew up and over the boundary safety fence and hit David, a union leader who was watching the working conditions on the site from the other side of the fence. David suffered a broken shoulder that took a few weeks to heal.

It turns out that Crazy Bros. had recently received a Safety Audit Report on the crane operations. The report recommended that a safety cable-brake system should be implemented at a cost of $100,000.00. Knowing that the company was a bit low on funds, management decided that the safety cable-brake system should not be implemented. After the incident, an investigation found that in 10 years of use of overhead cranes by the Crazy Bros. only five accidents involving a fault in the steel cable had ever been reported.

David is taking legal action against Crazy Bros.

Required:Discuss the likelihood of success of David's legal action. In your answer, state and discuss the elements of negligence and the arguments the parties are likely to use. You should also refer to case law to support your answer.