Negligence

Lucy is an employee of Botanica, and has been working there for several months. On Tuesdays, one of her tasks is to deliver plant orders to customers that are in the CBD.

One Tuesday, she makes a number of deliveries. The last delivery that she makes is to Max who lives in a small house in the city. As she approaches the house, there is no parking available on the street, so she must park in the driveway. The driveway is long and narrow with plants along both sides. She very carefully drives down the driveway, being careful not to scratch her car.

Lucy delivers the package to Max and Max is very happy.

When Lucy is back in her car, she turns on the engine and starts reversing the car. She then starts streaming music from her phone, and is focused on changing the songs on her phone. The music is loud. She is looking at her phone and out the mirror as she is reversing - she does not have full attention on her driving. She is reversing too fast, and she crashes into the side fence of the driveway. She has caused a large amount of damage to the fence, and has also damaged many plants along the driveway.

Max comes out of the house and is very angry and starts shouting at Lucy.

Max calls Botanica and speaks to Joel. Max tells Joel that Lucy was driving carelessly and damaged his property. Max demands that Botanica pay him compensation (as Botanica is responsible for the actions of its employees). He demands $5,000 to repair the damage to the fence and to the plants. He also claims $20,000 for emotional distress as a result of his favourite plant being damaged.

Using relevant legal principles and IRAC, discuss whether Max would be successful in establishing that Lucy was negligent?