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The Parties Involved

The present analysis of the case scenario will be on the basis of the elements of tort and negligence. From the case scenario it can be inferred that Keith is home handyman who had advertised himself in a local newspaper known as the Buderim Bugle as a certified carpenter. However it was true that he had no such qualifications. He is one of the parties to the case scenario. Another party to the case scenario is Ruth who is a homeowner and acts as an assistant to a teacher at a local school (Barker et al., 2012). The cause of action arose when Ruth made an arrangement with Keith for the replacement of timber top surface of her back stairs. His fault lies in the fact that he utilised a piece of unused and unrefined chipboard instead of hardwood. As a result the replaced tread was of poor quality and it was apparent that it would lead to some kind of accident (Van Dam, 2013). The reason of the action took place weeks after the replacement of the tread. Due to various nights of heavy rainfall, the new tread got swollen and collapsed. Ruth used to use the back stairs every morning to feed her birds. After the collapse of the tread, the next morning she was carrying out the usual routine. She was carrying several feeding dishes and equipments for cleaning. Since she was carrying so many equipments her vision was obscured and she could not see the tread which had collapsed. This resulted in her falling down from the stairs leading to her knee getting dislocated. This resulted in her loss of income since she had to spend around two months in the hospital.

From the current scenario it can be said that Keith was negligent of maintaining duty of care. They had a relation of a customer and service provider. Thus the nature of action is civil in nature and is based on elements of torts and negligence. When speaking of torts, they are legal wrongs where one person suffers due to the actions of another person. Negligence forms a part of torts. This particular concept developed as a result of kinds of losses or damages taking place between parties when there was no contract between them. Due to absence of a contract, there would be no ground for a party to sue the other party (Abraham, 2017). In the present case Ruth has to prove before the court that Keith owed a duty of care towards her and had failed to do so. The standard of proof needs to be determined in a case of tort and negligence. In case an individual gets injured due to wrongful action or tort caused by another person, the law allows the suffering party with the right to file civil suit to obtain damages and compensation (Deakin et al., 2012). The particular wrongdoing may result in both a crime as well as tort and will induce the defaulter to civil as well as criminal liability. Things that have to be proved in a civil or criminal case to get a judgement or conviction are different. In cases of civil nature the burden of proof is less. The person having the burden of proof has to show that he or she had predicted the possible evidence and the evidence is of paramount value. The evidence has to be unambiguous as well as convincing in nature. Thus standard of proof which is used in most of the civil matters i.e. paramount value of the evidence is not a clear concept. Thus this sort of standard of proof differs between jurisdictions to jurisdictions (Goldberg et al., 2016). It also differs between courts within those jurisdictions. Hence the parties to a civil lawsuit preferably a personal suit of injury have to prove what they allege on the basis of the prevailing facts to make the suit successful. Most of the cases of personal injury are based on the aspect of negligence. Hence certain elements have to be proved by the injured party before the court to show aspects of negligence in torts. The first thing that has to be shown by the person alleging is that the defendant owed duty of care towards the sufferer. The plaintiff also has to prove that the relevant duty had been breached by the defendant. The plaintiff has to show that as a result of the breach of the existing duty owed by the defendant towards the plaintiff resulted in injury to the plaintiff. Moreover the injury resulted in the plaintiff to suffer. Hence these facts can be termed as elements of a case. Thus the plaintiff owns the onus or burden to bring forward evidence that is credible and reliable. This includes witness, documents and expert testimony to prove that all these elements existed (Gardner, 2011). The defendant also has to put forward evidence before the court to prove wrong the claim put forward by the plaintiff. The individual who analyses the facts who are usually the jury or the judges have to be impartial and fair in terms of considering the evidence to give a verdict in favour of either of the sides of the case.

Elements of Tort and Negligence

When speaking of tort law in Australian context there is an enacted legislation of the Parliament which governs it. It is the Civil Liability Act 2002. It is a product of the common law i.e. the creation out of the judgements of the judges and jury of the courts. Another aspect that the plaintiff has to prove before the court is that there was proximity of relation between the person who committed the tort and the person who suffered as a result of the wrongful act or tort (Levmore and Sharkey, 2012). The first element that is to be proved in the instant case is the duty of care that is to be established by the plaintiff. Perhaps the most famous case which established the general duty to take care was Donoghue v Stevenson (1932) AC 562. In the present case the plaintiff and her friend went to a public house. The friend ordered a ginger beer which was to be consumed by the victim (Kysar, 2011). When she was consuming the ginger beer she found a decomposed snail at the bottom of the bottle. This resulted in great mental shock to her and she also suffered from gastric issues. In the present case the ginger beer bottle was opaque. So neither Donoghue nor the shopkeeper was able to see the snail. So at that moment, she could not file a case against the shopkeeper for breach of consumer rights or contract. However the House of Lords made the decision that Stevenson, the manufacturer was liable for the breach of duty and had done a tortuous act. Thus as per Lord Atkin the liability was dependent on the sentiment of the general public regarding moral wrongful act and thus the offender was liable to pay for the same (Steele, 2010). The Judge Also Observed That Individuals Should Try To Take Reasonable Care To Make Sure That Acts And Omissions Are Avoided Which Can Be Reasonably Foreseen to cause injury to one’s neighbour. On the basis of this observation the principle of neighbour was established. This is an important and path breaking input to the law of tort and is being widely used in civil liability cases in UK and all over the world.

Thus three points emerged to be important from the present case which established duty to take care. The first is the ideas of reasonable foresee ability of the harm that is likely to be caused to the neighbour of the wrong doer. The second point is the fact that there was a relationship of proximity between the person claiming tort and the person doing the wrongful act (Shapo, 2010). The final point which had come up and is to some extent debatable is the fact that it is just, reasonable and fair to put liability on the defendant as a result of his careless acts. Thus Ruth has to prove before the court that there was a relationship of proximity between her and the service provider, Keith. Moreover she also has to show that the possible harm that could have caused due to the faulty replacement of the tread was reasonably foreseeable to Keith which he chose to ignore.

Standard of Proof

The second element to be proven before the court is the fact that there was a breach of the existing duty. This has to be proved by Ruth once she able to prove that there was a duty of care owed by Keith towards her. In such cases, the question that arises before the court is whether the behaviour shown by the wrongdoer was below the expected standard of a reasonable person (Zamore, 2016). This is known as the objective test. The case of Donoghue v Stevenson has been an important and persuasive precedent when speaking of the case of Grant v Australian Knitting Mills (1935) UKPC 2. The subjective test to prove the breach of duty is to show that defendant intentionally puts or exposes the claimant or the plaintiff to a significant risk of loss. The breach of duty can be proved if the defendant does not contemplate the significant risk of loss that a reasonable person in the same circumstance would have clearly realised. However the objective or subjective test is completely dependent of the facts of the case scenario.

Another element that is to be proved by the plaintiff is the aspect of factual causation. Thus to prove that Keith is liable for negligent action, Ruth has to prove the fact that he did not use hardwood for replacing the tread of the backstairs to show that he breached his duty to take care which he owed towards Ruth. Thus as a result of omission to take due care Ruth sustained loss in terms of physical, mental and financial aspects (Meier, 2011). However it is difficult to draw a link between the breach of duty and the loss or injury caused to the other person. It is to be determined whether the injury would have happened even if the accused did not cause the breach of duty. Thus it was determined that if the person causing the breach intentionally increases The Risk Of Harm To The Other Person, such a person can be sued for the amount of the harm that had been caused.

Keith can also put up defence before the court that Ruth was also liable for her own injury due her own negligence. This is known as contributory negligence. This is valid defence that can be claimed under common law jurisdictions. In the present case the liability of the defendant is determined on the basis of the fact that the plaintiff due to his or her own negligence resulted in the loss or harm suffered. Similarly Keith can prove that his liability is not absolute since Ruth failed to take notice of the missing tread and due to her careless nature led to her injury (Winfield, 2013). Ruth in the present case can claim certain kind of damages from Keith as a result of the injury suffered by her. She can claim special damage which would be calculated from the date of the negligent act of Keith till a particular date. This damage will be determined during the trial. Hence special damages can be the income loss suffered by Ruth, the hospital bills and the cost of the damage of the back stairs. She can also claim general damages for the mental and physical agony suffered by her as a result of the fall. She can also ask for punitive damages to punish Keith and deter him from similar conduct (Cane and Atiyah, 2013).

Thus in the present scenario it is proved that Keith was negligent and had omitted to carry out his duty. However it is difficult to prove his intention with respect to breach of duty. However Ruth is entitled to claim different kind of damages.

References

Abraham, K. (2017). The forms and functions of tort law. West Academic.

Barker, K., Cane, P., Lunney, M., & Trindade, F. (2012). The law of torts in Australia. Oxford University Press.

Cane, P., & Atiyah, P. S. (2013). Atiyah's accidents, compensation and the law. Cambridge University Press.

Deakin, S. F., Johnston, A., & Markesinis, B. (2012). Markesinis and Deakin's tort law. Oxford University Press.

Gardner, J. (2011). What is tort law for? Part 1. The place of corrective justice. Law and Philosophy, 30(1), 1-50.

Goldberg, J. C., Sebok, A. J., & Zipursky, B. C. (2016). Tort Law: Responsibilities and Redress. Wolters Kluwer law & business.

Kysar, D. A. (2011). What climate change can do about tort law. Environmental Law, 1-71.

Levmore, S., & Sharkey, C. M. (2012). Foundations of tort law. LexisNexis.

Meier, L. (2011). Using Tort Law to Understand the Causation Prong of Standing. Fordham L. Rev., 80, 1241.

Shapo, M. (2010). Shapo's Principles of Tort Law, 3d (Concise Hornbook Series). West Academic.

Steele, J. (2010). Tort Law: Text, cases, and materials. Oxford University Press.

Van Dam, C. (2013). European tort law. OUP Oxford.

Winfield, P. H. (2013). The Province of the Law of Tort. Cambridge University Press.

Zamore, J. D. (2016). Interference with Lawful Business (Vol. 2). Business Torts.

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[Accessed 03 March 2024].

My Assignment Help. 'Tort And Negligence In Home Improvement: A Case Study' (My Assignment Help, 2022) <https://myassignmenthelp.com/free-samples/comm101-principles-of-commercial-law/the-risk-of-harm-to-the-other-person-file-A8DFB5.html> accessed 03 March 2024.

My Assignment Help. Tort And Negligence In Home Improvement: A Case Study [Internet]. My Assignment Help. 2022 [cited 03 March 2024]. Available from: https://myassignmenthelp.com/free-samples/comm101-principles-of-commercial-law/the-risk-of-harm-to-the-other-person-file-A8DFB5.html.

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