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Background on Negligence and Duty of Care

In this case it needs to be considered if Keith can be held responsible in negligence and if Ruth can successfully bring a claim for damages against Keith. The negligence of Keith arises as a result of the fact that while replacing the rotten timber trade on the stairs, Keith had used untreated chipboard instead of using hardwood. The result was that it swelled after several nights of heavy rain, and eventually collapses during the night. When Ruth was walking down the stairs in the morning, she failed to see that the tread was missing and as a result, she fell down and suffered serious injuries. Ruth had failed to see the missing thread because at that time, she was caring many feeding dishes and other cleaning equipment. Therefore the other issue that is present in this scenario is to consider if can be stated that Ruth had also contributed in negligence to the injuries suffered by her.

The term ‘negligence’ is used in case of personal injury claims for describing the wrongful act or the omission of the defendant due to which the claimant had to suffer injury or damages. The principles related with the law of negligence have developed for hundreds of years in Queensland through the courts. The main principles that can be stated in this regard are that the claimant should have a duty of care towards the injured party; there should be a breach of such duty of care as a result of the actions of the claimant; and the breach of duty of care by the defendant should result in loss or injury to the claimant (Gardiner and McGlone,  1998). The principles of common-law negligence have been given a sector reform in Queensland by Chapter 2, Civil Liability Act, 2003. This legislation came into force on 1st July, 2003.

The common law principles related with negligence have been provided the statutory form in Queensland by Ch 2, Civil Liability Act, 2003. This legislation is related with the facts that need to be considered by the court while deciding if a party can be held liable for the breach of duty of care or if there has been negligence on the part of the defendant when the other party has made a claim for personal injury. Therefore, whenever action is initiated by a person seeking compensation for injuries suffered by the person in a motor vehicle accident or in a slip or trip and fall in a public place on private property that has been caused as a result of the negligent actions of the other party in Queensland, then the provisions related with what amounts to the beach of duty of care, have been mentioned in Ch 2, Civil Liability Act that can be applied in such cases.

Therefore for the purpose of deciding if in the present case, it can be said that Keith was negligent and as a result of this negligence, Ruth had suffered injuries, the principles of the law of negligence should be applied. In this context, negligence can be described as the action or inaction of a person where such person has a duty of care towards the other and a breach of this duty takes place due to which an injury or loss has been suffered by the other. As mentioned above, the relevant statutory provisions are present in Civil Liability Act, 2003. This position can also be used for deciding if in the present case, Keith can be held liable. In such a case, the party that has suffered the damage brings a claim in the court so that such party can be placed in the same position in which it would have been if there would be no negligence on the part of the other party (Windley v Gazaland Pty Ltd, 2014). As mentioned above, this question can be decided by considering it in the present case, it can be said that Keith owed a duty of care towards Ruth. In this context, it also needs to be considered if the injuries suffered by Ruth were the result of this breach of duty. It is also required that the injuries caused to the plaintiff should have been the direct result of this breach of duty. In the same way, it is necessary that all the factors mentioned above should be present in order to conclude that the defendant was liable in negligence for the injuries suffered by the claimant (Kujinga, 2009).

Applying Legal Principles to the Case Study

Duty of care: The duty of care can be described as the obligation imposed by the law which requires that a person should refrain from actions that may result in causing damages to the other. This duty of care arises when it is reasonably foreseeable that harm may be caused to the other person if the defendant fails to act carefully (McDonald, 2005). It is also necessary in such cases that sufficiently proximate relationship with the present between the parties in order to claim that the defendant had the duty of care. Some of the examples of such relationships where the duty of care is present include the relationship between drivers and other road users or doctor and patient.

The breach of duty: Under the law of negligence, for the purpose of deciding if in a particular case, the defendant can be considered to be liable for this breach, the court looks at the standard of care that can be applied in the particular case. While dealing with this issue, the court decides the relevant standard of care by deciding what would have been done by any other reasonable person in such a situation (Pollard v Trude, 2008). Therefore if the court finds out that the actions of the defendants were unreasonable or if they fell below the applicable standard of care, it can be reasonably concluded that a breach of duty has been committed by the defendant. The law allows the plaintiff to claim that there has been a breach of duty if the claimant is in a position to establish that either the defendant was aware of or should have been aware of such a risk. This factor is known as reasonable foreseeability. Another requirement that is present in this case is that the risk should not be insignificant. As a result, any other reasonable person would have taken precautions to deal with such a risk. As a result of the changes that have been introduced by the Civil Liability Act, the bar concerning reasonableness of the action has been raised. Consequently, now it is not only required that the harm suffered by the plaintiff could be reasonably foreseen, but there is another requirement according to which the risk of causing the harm should not be insignificant. However, it is worth mentioning in this regard are still the standards are not very clear regarding this issue and as a result, the courts have to consider the facts of each case, while arriving at the decision (Tomasic, Bottomley and McQueen, 2002)).

The precautions that can be considered as reasonable in a particular case need to be decided by considering the facts of an individual case. Due to this reason, the facts that would examined by any reasonable person, while dealing with the issue of the precautions that need to be taken are also important. While dealing with this issue, another factor that requires consideration is the likely seriousness of the harm that may be caused to the other party as well as the burden of taking precautions for the purpose of avoiding such harm. This burden has to be compared with the probable benefits that may be achieved by the activity due to which the risk of harm has been created.

Breach of Duty and Reasonable Foreseeability

Reasonably foreseeable: When the court is dealing with the issue is in a particular case, the defendant knew or should have known regarding the presence of such a risk, the principles provided in Donaghue v Stevenson (1932) need to be applied. In this case, the plaintiff had found a decomposed snail in the bottle of ginger beer. In the decision given in this case, the significance of the foreseeability of injury was significantly highlighted as a result of which, harm has been suffered by the plaintiff due to the actions of the defendant or the lack of action. At the same time, it can also be mentioned that according to the Civil Liability Act also, it is required that due to the negligence of the defendant, harm should have been suffered by the claimant. It is also required that such harm that has been suffered by the claimant, should be within the scope of liability of the defendant. For dealing with this issue, the court was consider if a connection exists between the negligence alleged on part of the defendant and the harm that has been suffered by the claimant. However, this is the issue of fact and consequently has to be decided by the court, keeping in view the facts of each case.

Similarly it is also worth mentioning at this point that for the purpose of deciding the issue of causation, the court is required to consider if "but for the actions of the defendant, harm would not have been caused to the plaintiff". In this way, this requirement is also known as the "but for" test. As a result, it can also be stated that one necessary element that has to be present is the causation behind the harm.

Contributory negligence: On the other hand, a defense is available in the form of contributory negligence. In the present context, contributory negligence can be described as the failure on part of the plaintiff to exercise reasonable care. Regarding their own safety under the circumstances where such failure has contributed in the harm suffered by the plaintiff. In other words, it can be said that it is required that the plaintiff should have contributed towards the injuries suffered by them as a result of their actions or omissions (Campbell v Hay 2014). In this regard, s10, Law Reform Act, 1995 (Qld) provides that the damages can be reduced by the court according to the amount that is considered by the court to be fair and equitable keeping in view the extent of the share of the plaintiff regarding the responsibility for harm. In the same way, s24, Civil Liability Act also provides the damages awarded to the plaintiff can be reduced by the court upto 100% as a result of the contributory negligence of the plaintiff if the court thinks that it will be just and equitable to do so. The law provides that while dealing with the issue of apportionment of responsibility, the court is required to consider the complete conduct of both the parties regarding the circumstances under which the accident took place and similarly it is also required to compare their departure from their obligations by both the parties.

On these grounds, it can be stated in this case also that Ruth may be successful if she brings a claim against Keith in negligence for the injuries suffered by her. This conclusion can be made on the ground of the facts that Keith will add the necessary qualifications to do the job and while replacing the timber trade on the stairs, he used untreated chipboard where they should have used hardwood. The result was that after many nights of heavy rain, the tread swelled and collapsed. When in the morning, Ruth was walking down the stairs, she could not see that the tread was missing. As a result, she fell and suffered injuries. But in this case, it can also be stated that Ruth had also contributed in negligence. The reason is that while walking down the stairs, Ruth was carrying a large number of feeding dishes and cleaning equipment, therefore she cannot see that the tread was missing.

References

David Gardiner and Frances McGlone, (1998) Outline of Torts (2nd ed,), Butterworths

Deakin, S., Johnston A and Markesinis B (2003) Markesinis and Deakin's Tort Law, Oxford University Press   

Kujinga, Benjamin (2009). "Reasonable Care And Skill — The Modern Scope Of The Auditor's Duty". GAA Accounting

McDonald, Barbara (2005). "Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia". Sydney Law Review. 27 (3)

Tomasic, Roman; Bottomley, Stephen; McQueen, Rob (2002) “Audits and Auditors”, Corporations Law in Australia, Federation Press

Case Law

Campbell v Hay (2014) 129

Donoghue v Stevenson [1932] UKHL 100

Pollard v Trude [2008] QSC 335

Windley v Gazaland Pty Ltd T/A Gladstone Ten Pin Bowl [2014] QDC 124

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