Negligence
When a tortious act is committed by an individual, which can be deemed as a civil wrong, and due to which another person has to suffer, is known as a tort (Statsky, 2011). One of the tort laws, which are considered under the common law in Australia, is negligence. Under negligence, being a tort, a wrong is undertaken, which results in other party getting harmed. This wrong is done by breaching the duty of care, which the tortious party owed to some other party, due to the work taken by them (Emanuel and Emanuel, 2008). Apart from the common law, the statutory laws, based on the State in Australia also provide provisions pertaining to negligence. For instance, in Victoria, the Wrongs Act, 1958 provides the requirements of tort under section 18 (Legislation Victoria, 2010). In New South Wales, the Civil Liability Act, 2002 provides similar provisions (Legislation NSW, 2015). Once, the requirements of negligence, as contained in the applicable laws, have been established, a case for negligence, can be made and damages can be claimed by the injured party. Though, when a defense is raised for the undertaken tort, on part of the injured party, for instance, contributory negligence, the awarded damages can be brought down, as per the discretion of the court (Trindade, Cane and Lunney, 2007).
The following parts contain an evaluation of the tort of negligence, undertaken by Keith and the contributory negligence on part of Ruth.
A civil wrong done, which stems from the contravention of duty of care, resulting in injury or harm, is the apt manner of defining negligence (Greene, 2013). For establishing a case of negligence, an individual has to show the presence of some specific set of elements. These elements include the duty of care, contravention of this duty, foreseeability, remoteness, causation, and damages resulting from the contravention. Only a presence of all these can result in a successful case of negligence (Lambiris and Griffin, 2016).
The initiating point of a case of negligence is showing that a duty of care was present. The question of a duty of care being present on part of the manufacturer towards the consumers was held in the Snail in the bottle case, i.e., the Donoghue v Stevenson [1932] UKHL 100. In this case, a deceased snail was found inside the bottle manufactured by S, as a result of which, D fell sick. And hence, she sued the manufacturer for the breach of duty of care. Due to the foreseeability and proximity between a bottle maker and the bottle consumer, the court upheld the presence of duty of care (Latimer, 2012).
The threefold test given in Caparo Industries plc v Dickman [1990] 2 AC 605, comes in handy for showing the presence of duty of care. The three criteria given in this case, for establishing a duty of care, included the proximity between the parties, the reasonable predictability of the risk of getting injured, and the penalties imposed to be fair and just (Lunney and Oliphant, 2013).
Duty of Care
The given case study requires an establishment of duty of care owed by Keith towards Ruth. Applying the first case, Donoghue v Stevenson, by reasons of undertaking the work of Ruth’s home, Keith had a duty to undertake the work in a proper manner. This is because an improper work had foreseeable losses. The second case also helps for establishing Keith’s duty of care. There was proximity between Keith as the constructor and Ruth as the consumer. The loss was foreseeable as leftover material is not strong as the actual material and thus prone to breakage. So, if penalties are imposed here, they would be fair. So, a duty of care was owed.
Once an obligation of care has been shown, the next requirement is to show that this obligation was breached. The case of Vaughan v Menlove (1837) 132 ER 490 (CP) proves of assistance in this regard. Menlove was repeatedly warned about the probability of the haystack kept in the building catching fire. Even then, Menlove failed to act on it, or even consider the same. Hence, when this particular haystack was burnt, Menlove was held to have contravened the duty of care, which he owed (Commonwealth Legal Information Institute, 2017).
A crucial matter which clarifies how an obligation of care is violated is the case of Paris v Stepney Borough Council [1951] AC 367. This particular instance involved the breach on part of the defendant in providing the safety gear to the plaintiff who was already blinded in one eye. When he was performing his work, due to a rusty bolt hitting his working eye, he was blinded completely. The court was of the view that not providing the safety gear by the defendant amounted to a contravention of duty of care (Martin and Lancer, 2013).
The case study clearly shows that by not performing his work in a proper manner, and using leftovers instead of the adequate material, Keith had contravened his duty of care. On the basis of Vaughan v Menlove, Keith chose to ignore the fact that he was required to use proper material. And by not using the same, on the basis of Paris v Stepney Borough Council, another person was injured. So, the obligation was contravened.
Without the loss being of such a nature which could have been predicted or foreseen, a case of negligence cannot hold. The lack of reasonable foreseeability led to the decline of relief in the case of Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078. Moreover, it is crucial to judge the foreseeability on the basis of the view of a prudent individual, as was required by the judges in Wyong Shire Council v. Shirt (1980) 146 CLR 4, which later became a landmark case with regards to foreseeability (Jade, 2017).
The present case study shows that the use of leftovers, instead of the required material, clearly had the possibilities of loss. A reasonable individual would have ensured that the proper material was used. So, this requirement is also fulfilled in the given case study.
Contravention of Duty of Care
The damages have to be substantial in nature, and if the court is of the view that the damages are too remote, relief cannot be granted for the same. A helpful matter in this regard is Wagon Mound Case, i.e., the Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2 case. Owing to the remoteness of the losses, the court chose not to award any damages as a relief in this case (H2O, 2016).
The case study shows that the damages which Ruth had to incur were substantial in nature. Her knee was dislocated due to her fall and even the recovery period was of two long months, during which she was not employed. Hence, the damage was not too remote and deserves adequate relief to be awarded.
There has to be a direct causation between the losses and the contravention of the obligation of caring towards the other (Turner, 2013). The direct causation was established in the snail found in the bottle and D’s sickness in the Snail in the bottle case, due to which D was awarded damages. The Civil Liability Act 2002 (NSW), through section 5D provides that factual causation is an essential element in proving negligence (Legislation NSW, 2015). So, without a direct causation, a claim of negligence cannot be upheld.
The case study shows that as the leftover material was used, which was drenched due to the rain and was engorged resulted in Ruth’s injuries. Had the proper material been used, the same would not have happened. Hence, there was a direct causation between Ruth’s losses and Keith’s negligence.
Without the negligence resulting in harm or loss, damages cannot be awarded. Often the “but for” test is used in such cases, which was given by the judges of Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 case. In case the injuries would have been caused, even without the negligence of the first party, the damages are not to be awarded for the negligence which took place, as the injury would have taken place even in absence of contravention of obligation of undertaking care (Strong and Williams, 2011).
The case study reveals that if proper material had been used, the injury would not have occurred. Also, in absence of the entire work, the injury would not have taken place. The injury was caused only because Keith used leftovers, instead of the main product. Hence, as per the “but for” test, the loss was incurred and relief has to be awarded.
Apart from the presence of a case of negligence, in this particular case, Keith can also be held liable for the negligent misstatement made by him. A negligent misstatement is the false statement made by one person, relying upon which, the other person incurs loss or damages. It is of utmost importance that reliance is established to show the presence of negligent misstatement, as was stated by the judges in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 (Latimer, 2012).
Foreseeability
The given case study shows that in the very beginning Keith had made a false statement pertaining to him being a qualified carpenter. The reality was quite different as he had no such qualifications. Ruth had relied on this false statement of Keith and utilized his services. As reliance was made in negligent misstatement, based on Hedley Byrne & Co Ltd v Heller & Partners Ltd, Ruth can initiate claims for negligent misstatement and attain damages as relief.
A party who bears the loss or harm can initiate claim for remedies, which is mostly in the form of damages. The reason for awarding damages is to put the individual in the place, where the person would have been, in case the breach had not occurred, as was established in Addis v Gramophone [1909] AC 488 (E-Law Resources, 2017).
This particular case is unique as Ruth is claiming damages for 12 months of her lost income and punitive damages. The damages are awarded for the negligence and not for voluntarily giving up a position. Ruth had voluntarily resigned from her work to concentrate on her charity work. This was unrelated with the negligence of Keith. So, she can only claim damages for the 2 months recovery time period, negligent misstatement and punitive damages for punishing Keith, but nothing beyond that. These damages would result in her getting at a position where she would have been in case Keith had properly undertaken his part of the job and not made the negligent misstatement.
A commonly used defense in case of negligence is contributory negligence. As per this doctrine, when an injured person, by his acts, contributes to the injuries which they receive, they have to be held liable for their part of the negligence. And so, the damages which are awarded in such cases are proportionately brought down (Dongen, 2014). In the case of Froom v Butcher [1976] 1 QB 286, the plaintiff was injured due to the collision of his vehicle with the truck of the defendant. As the plaintiff and his family were not wearing seat belts at the time of the accident, the court held it as a contributory factor and brought down the damages by an amount of £100 (Swarb, 2017).
The given case study shows presence of contributory negligence on part of Ruth. When she was going down the stairs, she had a lot of stuff in her hand, which made it difficult to see the missing tread. Eventually she fell down and injured her knee. The contributory negligence on her part, would be evaluated by the court and as was seen in Froom v Butcher, her damages would be brought down.
Conclusion:
To conclude, this case shows that Keith had been negligent, as all the elements needed to establish a case of tort of negligence are present here. However, this does not allow Ruth to claim damages for the aspects which are unrelated to her injury and the negligence of Keith. So, she can claim damages for negligence, and the negligent misstatement. By claiming the defense of contributory negligence, Keith can bring down the amount of damages payable by him to Ruth.
References:
Dongen, E.V. (2014) Contributory Negligence: A Historical and Comparative Study. Boston: Brill Nijhoff.
E-Law Resources. (2017) Addis v Gramophone [1909] AC 488 House of Lords. [Online] E-Law Resources. Available from: https://e-lawresources.co.uk/cases/Addis-v-Gramophone.php [Accessed on: 22/05/17]
Emanuel, S., and Emanuel, L. (2008) Torts. New York: Aspen Publishers.
Greene, B. (2013) Course Notes: Tort Law. Oxon: Routledge.
H2O. (2016) Wagon Mound (No. 1) — “The Oil in the Wharf Case”. [Online] H2O. Available from: https://h2o.law.harvard.edu/collages/4919 [Accessed on: 22/05/17]
Jade. (2016) Wyong Shire Council v Shirt. [Online] Jade. Available from: https://jade.io/j/?a=outline&id=66842 [Accessed on: 22/05/17]
Lambiris, M., and Griffin, L. (2016) First Principles of Business Law 2016. Sydney: CCH
Latimer, P. (2012) Australian Business Law 2012. 31st ed. Sydney, NSW: CCH Australia Limited.
Legislation NSW. (2015) Civil Liability Act 2002 No 22. [Online] New South Wales Government. Available from: https://www.legislation.nsw.gov.au/#/view/act/2002/22 [Accessed on: 22/05/17]
Legislation Victoria. (2010) Wrongs Act 1958. [Online] Victoria State Government. Available from: https://www.legislation.vic.gov.au/Domino/Web_Notes/LDMS/LTObject_Store/LTObjSt5.nsf/DDE300B846EED9C7CA257616000A3571/F1F5385B484503F3CA2577C1001B5BE4/$FILE/58-6420a103.pdf [Accessed on: 22/05/17]
Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford University Press.
Martin, J., and Lancer, D. (2013) AQA Law for AS Fifth Edition. 5th ed. Oxon: Hachette UK.
Statsky, W.P. (2011) Essentials of Torts. 3rd ed. New York: Cengage Learning.
Swarb. (2017) Froom v Butcher: CA 21 Jul 1975. [Online] Swarb. Available from: https://swarb.co.uk/froom-v-butcher-ca-21-jul-1975/ [Accessed on: 22/05/17]
Trindade, F., Cane, P. and Lunney, M. (2007) The law of torts in Australia. 4th ed. South Melbourne: Oxford University Press.
Turner, C. (2013) Unlocking Torts. 3rd ed. Oxon: Routledge.
Order an Essay Now & Get These Features For Free:
Turnitin Report
Formatting
Title Page
Citation
Outline
