Background of the Case
Negligence is a branch of the law of tort that deals with unintentional torts. However, courts hold it as one of the misconducts that cause the victims injuries either to their bodies or their properties. The law of tort takes negligence as a failure for the wrongdoer to take the reasonable care which a person in that position would have taken in protecting the wellbeing of others. From this, the court holds that any victim of a negligent case can recover damages provided that they will have substantial proof.
Nevertheless, the law also requires people also to take care of themselves. Therefore, if a defendant in a negligent case proves that the claimant was also negligent, the plaintiff would also loose some of the benefits of bringing the case to the court. This paper will a study of a case scenario of a case brought by Ruth on Keith’s negligence.
Issue
This question raises two issues. The first question concerns a determination whether Keith is liable for negligence. Upon finding that he was negligence, this paper will also look to see the probability of Keith winning in his defense against Ruth’s claim for negligence.
Rules
A claim for negligence involves proving to the court that all the three principles of negligence exist. In short, the claimant must establish that the defendant owed a duty to care, must demonstrate that he breached the said duty, and lastly, the plaintiff must prove that the damages claimed are arising from the breach (Emanuel, 2009). If a claim doesn’t prove these elements, then it’s no doubt that the court will dismiss it.
Establishing that the defendant owed a duty to care is the first step in a negligence case. In (Roach, 2014) the work suggests that a claimant must convince the court why it has to believe that the defendant owed a duty of care to act reasonably. More than that, the said duty should be something that a prudent man must have done if had the circumstances similar to that of the defendant.
Similarly, the work of (Beatty and Samuelson, 2013) explained that the amount of care to be exerted by the defendant rests on two accounts. One is in his profession, and the second one is in his relationship between him and the claimant. In simple, professionals have an implied duty in their field to accomplish their work the same way a reasonable man would do given the same profession. A doctor in his profession, a lawyer, an engineer or a carpenter do accept that they will exert their skills in the same way a reasonable person would do in the same field.
Right after convincing the court that the defendant owed a duty to care, the claimant would proceed to prove that the defendant abandoned that duty (Carper, McKinsey and West, 2008). Bailey in (Bailey, 2011) clarified this statement by asserting that professionals and experts should provide a standard duty of care. By standard, it means that a professional should provide the same skills as those of the same profession similar to the defendant.
Elements of Negligence
After convincing the court that the defendant owed a duty, the claimant should also show the court that the damages were born from the breach of that duty. The work of (Statsky, 2011), provides two factors for this. One of them is the evidence that the defendant’s breach justly triggered the loss, i.e., the ‘causation factor.’ Secondly, the damages should not be too remote, i.e., the ‘foreseeability factor.’
The causation element connects the defendant’s breaching conduct with the damages (Miller and Jentz, 2011). That is, balancing the probability that it was the defendant’s acts of negligence that gave rise to the damages. It’s usually referred to as the but-for test. The foreseeability factor provides the judgment of a reasonable man. That is, a reasonable man would see that the claimant would be at risk if the defendant omited something.
Application of the Rules
The rules explained above for proving a duty to care existed were first set in (Donoghue v Stevenson (1932) UKHL 100). This case arose after Mr. Donoghue visited a café with her friend. The Café offered attendant her a beer and an ice cream. After finishing the beer, she discovered a decomposed snail in the bottle. She brought a case against the manufacturer since she suffered some physical injuries. The judge ruled that the manufacturer owed a duty to care. Basically, this case affirmed that that every person owes a duty to care for any person who can foreseeably sustain injuries due to some omissions.
A statement made by someone, or a claim that someone is an expert in something issues that person a duty to care. In (Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465), the claimants used a statement provided by the defendant as a reference to know the stability of a debtor before giving a loan. The report was mistaken because soon the borrower went broke after getting the loan. The claimant sued the defendant for damages which the court held the defendant liable.
The but for’ test for test connects the breached duty with the damages caused. For example, in (Barnett v Chelsea & Kensington Hospital (1969) 1 QB 428) the claim didn’t win because the claimant couldn’t connect the death of the husband with the doctor’s failure to examine him. In brief, the deceased went to the hospital, the defendant sent him home without examining him, and then the deceased died of poisoning.
Foreseeability challenges the claimant to claim the damages that are realistically rising from the breach. For example, in (Hadley v Baxendale (1854) EWHC J70), it was not brought to the defendant’s knowledge that the claimant would suffer damages. The plaintiff could only recover those damages that were reasonably foreseeable. The Crankshaft broke in the Claimant’s mill. The plaintiff hired the defendant to take the crankshaft for repair. The defendant failed to come back at the agreed time hence the Miller could not be used. The claimant suffered a loss of profit within all that time the defendant was away. He brought a case to recover the lost profit. However, the court ruled that the profit was too remote. Both of them had not agreed on anything about the delay.
Establishing Duty of Care
Another example of foreseeability factor was brought in the case of (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or “Wagon Mound (No. 1)” (1961) UKPC 2). The court found that nobody in the defendant’s position would expect a fire to start in such a strange means. In brief, the defendants negligently spilled oil from their vessel. The flow reached the wharf near the welding space. The welding stopped waiting for confirmation that it was safe for welding sparks. Afterward, a fire started from some cotton wastes wafting in the oil, and it burnt wharf. The court found that the damages were not reasonably foreseeable.
Foreseeability was observed in the case of (Perre v Apand Pty Ltd (1999) HCA 36). Perre was a potato seller. Apand was a potato farmer. Apand sold infected potato seed Perre’s neighbor. Soon there was an outbreak that affected even Perre. The court held that Apand was responsible for the damages, and the damages were foreseeable.
Conclusion
Keith owned a duty to Ruth. He claimed to be an expert, and hence he was supposed to exert the care of a skilled carpenter. Unfortunately, he didn’t. Through this omission, Ruth sustained injuries. Ruth injuries prevented her from doing her job and caused her the hospital bills. These damages are foreseeable reasonable.
Issue
The issue in this section is trying to bring a defense on a negligence claim through contributory negligence.
Rule
The easiest way for a defendant to win a case against negligence is to bring the defense through contributory negligence. In (Mann, Roberts and Smith, 2012), the work advises that to create a sound defense, the defendant must come the same way the claimant used in establishing the claim, but this time the defendant would be disputing the claim. In other words, the defendant must challenge proof provided by the claimant in the principles of negligence. This is mainly because in a negligence case, it’s upon the defendant to proof that he didn’t owe a duty. Simply called the burden of proof.
However, even though it might succeed, contributory negligence just offers a partial defense. Hardly will it defeat the claimant’s claim entirely. A defense of contributory negligence in most of the times will fail. In (Twomey et al., 2011), Miller tells that courts generally examine what the defendants brings as the claimant’s omission to take precautions. If the court finds that it was impossible for the claimant to take precautions, or the court conclude that the care would not have prevented the likelihood that the accident would occur, the court will dismiss the defense holding it unrealistic.
Application
Even though the defendant can bring his defense under the principles of contributory negligence, it will only serve in reducing the cost. For example, in (Sayers v Harlow UDC (1958) 1 WLR 623), the claimant could only recover 75% of the claimed damages. The defendant owned a public lavatory. The door closed while the claimant was inside. The plaintiff resulted to climbing rather than calling for help. She fell while climbing and she sustained some injuries. The court could not give her the 100% damages since she had contributed to her accident.
Breach of Duty of Care
Similarly, in (Froom v Butcher (1975) 3 All ER 520), the claimant only recovered 80% of the claim. The claimant sustained injuries in an accident caused by the defendant. The court found that the claimant sustained the many injuries for not using his seatbelt. The court said that a reasonable man would have been in his seatbelt to reduce chances of sustaining more injuries in case of an accident.
If the defendant has to bring a defense under contributory negligence, the defense must be solid or else the court would dismiss it. For example, in the case of (Greenland v Chaplin (1850) 5 Ex 243), the defendant’s defense held no ground in countering the claim. Both the defendant and the claimant were in the defendant’s steamboat. The defendant’s boat crashed into plaintiff’s boat. The crash caused an anchor to break the claimant’s leg. The defendant brought a defense that the plaintiff’s choice to seat near the anchor was a contribution to his injuries. The court rejected such defense since the sitting near the anchor was not the cause of the accident.
Another logical approach is the case of (Vosburg v. Putney (Wisc.1891) 80 Wis. 523). Putney hit Vosburg in in the leg, and later Vosburg lost his leg although the condition worsened because there were preexisting problems. Holding Vosburg responsible for his accident would mean that Vosburg would not have gone to school with the unprotected leg.
Conclusion
If Keith wants to reduce the cost of Ruth’s claim, he must convince the court that Ruth contributed to her damages. He must convince that Ruth faced the risk unreasonably. He must show the court that Ruth knew of the risks of walking in broken treads, and he must show the court how Ruth had all the information that the treads had collapsed the night before. However, there is a likelihood of Keith’s claim failing since Ruth didn’t know that the treads were broken.
Basing this case on all the facts and rules available. Keith represented to Ruth that he was a skilled carpenter, and he also took the job since he believed that he was a professional carpenter. Whether he was experienced or qualified or not didn’t matter after he had taken the job. In addition to that, Ruth didn’t know that he was incompetent while hiring him. On the side of Ruth, she was doing her routine duties, and they involved walking down the treads. It would be unrealistic holding that Ruth was supposed to know that the treads broke when the night before due to heavy rains. Therefore, based on all these facts, Keith was liable to pay all the damages incurred by Ruth.
Textbooks
Emanuel, S. (2009). Torts. 10th ed. Austin: Wolters Kluwer Law & Business, p.55.
Anderson, W. (2013). Principles of Caribbean Environmental Law (6th ed.). West Academic.
Roach, L. (2014). Card & James’ business law. 3rd ed. OUP Oxford, p.364.
Beatty, J., Samuelson, S., & Bredeson, D. (2013). Introduction to business law (4th ed., p. 95). Mason: South-Western Cengage Learning.
Carper, D., McKinsey, J. and West, B. (2008). Understanding the law. 5th ed. Mason, Ohio: Thomson/West, p.329.
Statsky, W. (2011). Torts, personal injury litigation. 5th ed. Clifton Park, NY: Delmar Cengage Learning, p.192.
Miller, R. and Jentz, G. (2011). Business law today. 9th ed. Mason, OH: South-Western Cengage Learning, p.114.
Twomey, D., Jennings, M., Fox, I. and Anderson, R. (2011). Anderson’s business law and the legal environment. 21st ed. Mason, Ohio: South-Western Cengage Learning, p.200.
Mann, R., Roberts, B. and Smith, L. (2012). Smith & Roberson’s business law. 15th ed. Mason, OH: South-Western Cengage Learning, p.147.
Bailey, J. (2011). Construction law .1st ed. London: Informa Law. p. 748.
Cases
Barnett v Chelsea & Kensington Hospital (1969) 1 QB 428
Donoghue v Stevenson [1932] UKHL 100
Froom v Butcher (1975) 3 All ER 520
Greenland v Chaplin (1850) 5 Ex 243
Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or “Wagon Mound (No. 1)” [1961] UKPC 2
Perre v Apand Pty Ltd [1999] HCA 36
Sayers v Harlow UDC (1958) 1 WLR 623
Vosburg v. Putney (Wisc.1891) 80 Wis. 523
Willsher v Essex Area Health Authority (1988) 1 AC 1074 HL.
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