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According To The Principles Of Common Law Contributory Negligence

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Question:

Discuss About the According To the Principles of Common Law Contributory Negligence?

 

Answer:

Introducation:

In the provided scenario Keith would be referred to as the defendant and Ruth would be referred as the Plaintiff. The plaintiff in this case would file a claim for damages with respect to breach of duty of care by the defendant which arises out of negligence in the law of torts. It is on the plaintiff to prove that he had suffered from the negligent actions taken by the defendant (Osborne 2015). It has to be proved beyond doubt that the injury caused to the plaintiff has resulted from the negligent act of the defendant that is if the act did not take place than the plaintiff would not have been injured. In this case it has to be proved that a duty of care was owed by the defendant towards the plaintiff. The plaintiff then needs to prove that the negligent actions of the plaintiff made him breach the owed duty. Finally the plaintiff has to prove that the breach was the reason the injury had been suffered by the plaintiff. The remoteness of damage also has to been established by the plaintiff and show that the remote damage was a result of the harm (Daye and Morris 2016).

The law in relation to the tort of negligence is generally dealt by common law. Through the case of Donoghue v Stevenson 1932 AC 562 the concept of neighbor principle had been provided. In this case the plaintiff went to a bar with his friend and ordered a ginger beer. The bottle in which the beer was provided was opaque. The plaintiff consumed the beer and at the end found snail in it. The sight made the plaintiff mentally and physically sick. The plaintiff decided that he would take action against the injury suffered by him. The plaintiff consumed the beer manufacturer for the damages suffered by him. It was argued by the defendant in this case that there was neither any legal or contractual relationship between the plaintiff and the defendant (Jeffries 2013). The defendant had a relationship with the bar owner but not the plaintiff. In this case the court made the neighbor principles that is to love a neighbor law and was modified into one must not cause injury to his neighbor. The court further provided in relation who can be considered as a neighbor by stating that a person who can be directly or closely affected by the act of the person and the person could reasonably foresee that his acts could harm the other. The court thus held that the claim made by the plaintiff in this case was justified as the manufacturer could foresee that the defect in his goods could harm the consumers (Henderson, Kysas and Pearson 2017). In this case it was further provided by the court that the existence of a duty of care is not enough to held a person liable for negligence. It has to be proved that the person observed negligence towards his course of action and breached the duty of care. The sole breach in duty of care is also not a complete basis for claiming damages until and unless an actual injury is caused to the plaintiff because the duty was breach a claim for negligence does not arise.

 


In order to determine whether a duty of care exists or not the type of injury that has been caused needs to be considered.  In case the loss is in relation to damage of personal property than the Caparo test has to be applied. The caparo test had been provided by the case of Caparo Industries pIc v Dickman [1990] 2 AC 605 House of Lords.  According to the test the foresee ability with respect to damage in any condition is the fundamental ingredient to analyze the duty of care.

Once the existence of the duty of care has been established by the application of the test, the duty has been breach or not has to be proved by the plaintiff. The objective test which was used and provided by the case of Vaughan v Menlove (1837) 3 Bing N.C. 467 has to be applied. With the objective test it is analyzed by the court that a prudent person would have committed the same mistake or would have taken extra precautions in similar circumstances. In this case the haystack of the defendant had been exposed to fire because proper ventilation was not available. He had been warned about the defect several times by the plaintiff who was damaged due to the fire. It was argued by the defendant in this case that he used his best decision making skills with respect to the ventilation. The court rejected his argument and held the claim of the plaintiff by comparing the actions of the defendant with a reasonable man (Shulman et al. 2015).

Whether the injury has been caused due to the negligent action or not is determined using the “but for” test. In the case of Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 the but for test had been provided by the court. . In this case the plaintiff went to the hospital with the complaint of vomiting and severe stomach pain. He was told by the doctor to consult his general physician and go home. The plaintiff died after five hours as he was suffering from arsenic poisoning. It was held by the court in this case that the defendant was not liable for the breach in duty of care. In this case the “but for” test had been applied by the court to determine the question. The court held that even if the doctor would not have been negligent the plaintiff would have died in any case. Thus according to the test if the injury would have take place even if the act was not committed than it does not account to negligence.

 


According to the principles of common law contributory negligence can be used as a partial or complete defense against the liability in negligence. The concept of contributory negligence has been used successfully in the cases of Revill v Newbery [1996] 2 WLR 239 and Nettleship v Weston [1971] 3 WLR 370. In the case of Pitts v Hunt [1990] 3 All ER 344 it was found that the plaintiff had contributed 100% towards the harm caused to him. The concept of contributory negligence arises when although the tort of negligence exists after the satisfaction of all its essentials it has been found that the actions of the plaintiff has partially or wholly contributed towards the harm caused to him. In this case the liability of the wrongdoer is adjusted based on the percentage of contributory negligence made by the plaintiff. For instance, if the plaintiff has contributed 30% towards the harm caused to him than the defendant has to pay only 70% of the total damages allocated to the plaintiff (Cusimano and Roberts 2016).

When remedies are provided by the court to the person to whom the harm has been caused certain principles of remedies are followed. In the case of British Transport Commission v Gourley [1956] AC 185 it was provided by the court that that plaintiff should not be given any compensation more than what he has suffered as a loss. The primary motive of the court is to restore the position of the plaintiff which he would have been if the negligent act would have not been committed by the wrongdoer. The court generally provides monetary compensations in relation to the tort of negligence (Epstein and Sharkey 2016).

In the present case study Ruth wants to claim damages against Keth for the loss suffered by her. Keth is a carpenter who is not qualified but has still advertised about his services. As the plaintiff required some wood work she contacted the defendants. The defendant who did not have proper knowledge about the work has negligently used an old ply where he had to use a fresh wood. As a result the old ply got damaged and according to the plaintiff he got hurt due to the negligent act of the defendant.  Firstly the neighbor principle has to be applied in order to determine whether a duty of care existed in the first place or not. As discussed above if the actions of a person affect another and he reasonably foresees that the action can be a cause of harm caused to another their person owes a duty of care. Thus in this case it was reasonably foreseeable for the defendant that if he does not use proper material with respect to the repairs the plaintiff may suffer an injury. As the neighbor principle has been satisfied it can be said that a duty of care is owed by the defendant with respect to the plaintiff.

Now in order to analyze that the defendant breach the duty of care or not the objective test has to be applied to the facts. The action of the defendant has to be compared with that of a reasonable person in order to come to a conclusion that the actions were reasonable or not. In this a prudent carpenter would have known the risk of using old wood in the repair work and the same action has not been taken by the defendant. Thus the defendant has breach the duty of care which the plaintiff expected from him to company with.

It has to be further analyzed according to the principles of Donoghue v Stevenson that the harm was a result of the negligent action taken by the defendant or not. The thread which had been replaced by the defendant had fallen due to his negligent actions as discussed above. If the thread had not fallen than the plaintiff would have not suffered the injury caused to him. Thus it can be said that the cause of harm was the negligent action of the defendant.

 


However the plaintiff in this case was carrying materials which were obstructing her view. If the materials were not present in the hands of the plaintiff than the view would not have been obstructed and the plaintiff would have seen the fallen thread and thus the harm could have been avoided. It has to be analyzed in this case by applying the objective test that the actions of the PLAINTIFF were negligent or not. Comparing the actions to that of a prudent person it can be said that the plaintiff should have not carries materials by which her view has been obstructed. Thus the plaintiff was also negligent in her actions providing a scope for contributory negligence.  As discussed above when the concept of contributory negligence comes into the question the defendant can use it as a total or partial defense. It is for the court to analyze in this case that how much compensation if at all should be given to the plaintiff because of the percentage of contribution done towards the negligent act by her.

With respect to the claim for twelve months of earning loss by the plaintiff the principles related to remoteness has to be applied. According to the case of The Wagon Mound no 1 [1961] AC 388 only damages which could be reasonably foreseen by the defendant and which are not too remote are to be compensated. In this case the plaintiff only suffered injuries which could be recovered in two mothers she herself opted not to work for twelve months so she is only entitled to damages for two months and the cost of her treatment.

 


In this case the court would put the plaintiff in the same position which she would have been if the negligent act would not have taken place. the plaintiff is not entitled to any more compensation that what she has lost.

Concluding the paper it can be said that there was negligence on the part of both the plaintiff and the defendant. With respect to the defendant all essentials of negligence have been proved against him. The plaintiff is also liable for contributory negligence in this case. Thus the damages to be awarded to the plaintiff would be adjusted according to the principles of contributory negligence

 

References

Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428

British Transport Commission v Gourley [1956] AC 185

Caparo Industries pIc v Dickman [1990] 2 AC 605 

Cusimano, G.S. and Roberts, M.L., 2016. Contributory Negligence and Assumption of Risk. Alabama Tort Law, 1.

Daye, C.E. and Morris, M.W., 2016. North Carolina Law of Torts. LexisNexis.

Donoghue v Stevenson 1932 AC 562

Epstein, R.A. and Sharkey, C.M., 2016. Cases and materials on torts. Wolters Kluwer Law & Business.

Henderson, J.A., Kysar, D.A. and Pearson, R.N., 2017. The torts process. Wolters Kluwer Law & Business.

Jeffries Jr, J.C., 2013. The Liability Rule for Constitutional Torts. Va. L. Rev., 99, p.207.

Nettleship v Weston [1971] 3 WLR 370

Osborne, P., 2015. The law of torts. Irwin Law.

Pitts v Hunt [1990] 3 All ER 344

Revill v Newbery [1996] 2 WLR 239

Shulman, H., James, F., Gray, O.S. and Gifford, D.G., 2015. Law of Torts: Cases and Materials.

The Wagon Mound no 1 [1961] AC 388

Vaughan v Menlove (1837) 3 Bing N.C. 467

OR

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