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Common Law And The Statutory Law Provide The Provisions Relating

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How To the Common Law and the Statutory Law Provide the Provisions Relating?




Tort denotes a wrong done by one individual, which causes other person some kind of harm and which attracts civil penalties. Negligence is one of the tort laws in Australia (Statsky, 2011). Negligence also denotes a civil wrong done, but which results from a violation of the duty, of caring the other person, for the work being done by the first person, due to the possibility of harm. It is crucial for the other person to be injured in a substantial manner to make a claim under negligence (Emanuel and Emanuel, 2008).

Both the common law and the statutory law provide the provisions relating to negligence. The statutory laws differ on the basis of jurisdiction. For instance, in the State of New South Wales, causation, as an element is covered in the Civil Liability Act, 2002 (Legislation NSW, 2015). For Victoria, the elements of negligence, which have to be present to make a claim for it, are covered in section 18 of the Wrongs Act, 1958 (Legislation Victoria, 2010).

Only after showing that all of the requisite elements, as per the common or the statutory law, as applicable, are present, can a claim of negligence be made and damages be applied for. The damages can also be reduced in cases of negligence, when the contributory negligence of the plaintiff can be clearly shown (Trindade, Cane and Lunney, 2007).

The case of Keith’s negligence and Ruth’s contributory negligence has been summarized below.  



When one person owes a duty or an obligation of care towards another person, due to the work being carried on by them, which has a possibility of resulting in other person’s injury or loss, and this obligation is violated, it is a case of negligence (Greene, 2013). Negligence can only be claimed upon when six elements can successfully be shown to have been present. These six elements are duty of care, violation of obligation of care, causation, remoteness, foreseeability and lastly, damages (Lambiris and Griffin, 2016).


To start a case of negligence, one must show that a duty or an obligation of care was owed towards another. For establishing a duty of care, the threefold test given by the court in Caparo Industries plc v Dickman [1990] 2 AC 605 is often used. In this particular matter, the judges stated that there has to be a presence of three different aspects to show the presence of duty of care. The first requirement is to show that the parties had proximity between them. This has to be followed by establishing that the risk of harm was predictable in a reasonable manner. Lastly, the justness of the penalties imposed has to be established (Lunney and Oliphant, 2013).  

Another case which is often cited for establishing this element is Donoghue v Stevenson [1932] UKHL 100. D had consumed the product manufactured by S, while she was in a café. As a result of the dead snail in the bottle, D fell sick and sued S. it was held by the court that due to the reasonable foreseeability of such loss and the proximity between the two parties, a duty of care was present (British and Irish Legal Information Institute, 2017).

The given study requires Ruth to show that Keith owed a duty of care to her. To show this, firstly, the three fold test has to be used. In this case study, there was a reasonable foreseeability in loss arising due to using a material other than what was prescribed. The parties had proximity due to being the maker and the consumers. And if penalties are levied on Keith, they would be fair. The case of Donoghue v Stevenson is also helpful in this matter. By being the manufacturer, S owed a duty towards the consumer D. The relationship is similar here. Hence, Keith owed a duty of care towards Ruth.


After establishing duty of care, the contravention or the violation of the same has to be depicted. In Paris v Stepney Borough Council [1951] AC 367, the Council was held as negligent due to the lack on their part in making available the requisite safety goggles. This was held as the work undertaken by P was of such nature, which required protective gear and also because he already was blind in one eye, which was known to the Council. And holding this contravention of obligation of care on part of the defendant, P was awarded relief in form of damages (Martin and Lancer, 2013).

Another helpful case in this regard is that of Vaughan v Menlove (1837) 132 ER 490. Here, the defendant had been not once, but numerous times been warned about the possibility of a fire occurring as the building in which the haystack was kept was improperly ventilated. The defendant chose to ignore the numerous warnings. So, when the haystack actually caught fire, the defendant was held to have breached his obligation of care owing to non-consideration of the numerous warnings (Commonwealth Legal Information Institute, 2017).

In the given scenario, due to the negligence on part of Keith, in using the leftover material, instead of adequate material, showed a breach of duty of care and so, Ruth is eligible for damages as per Paris v Stepney Borough Council. Also, based on Vaughan v Menlove, Keith ignored the usage of adequate material, which would again be considered as a breach of obligation of care on his part.



Another factor in making a case of negligence is that the loss has to be foreseeable in a reasonable manner. If a loss or risk of injury cannot be foreseen, a duty of care to not undertake such loss cannot be upheld. One of the cases where due to the absence of loss being foreseeable in nature, was the case of Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078 and here the losses were not awarded (Swarb, 2016). To understand what is foreseeable, a prudent person’s view has to be taken, as was stated by the bench in the matter of Wyong Shire Council v. Shirt (1980) 146 CLR 4 (Jade, 2017).

In this particular matter, Keith used leftover material even though the proper material had to be used. This causes reasonability in the loss, due to use of something which was not fit for the purpose. Hence, a reasonable person would uphold the foreseeability of loss of this particular case.


The remoteness of damages refers to the notion that the losses have to be of sizeable nature and if they are viewed as being too remote, a claim of negligence would not be upheld. As a result of the remoteness in the losses, in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2, the damages were decline by the court of law (H2O, 2016).

The damages incurred by Ruth, as per the scenario given in the case study shows that the damages were not too remote and were sizeable in nature. Ruth was in hospital for two months due to her dislocated knee as a result of her fall, and during this period, she was unemployed. So, the damages would be awarded to her, for the loss not being too remote.


The next requirement is to establish that there has been a direct causation between the contravention of the duty of care and the losses incurred by the other party (Turner, 2013). In Donoghue v Stevenson, for instance, the failure on part of S in keeping their bottles safe for consumption of his consumers resulted in D falling sick. Hence, there was a direct causation between the contravention of S and the sickness of D. section 5D of the Civil Liability Act 2002 (NSW),  states that there is a requirement for factual causation to establish negligence (Legislation NSW, 2015).

In this present case, the inadequate material, used by Keith, which was drenched in the rain and raised up, caused Ruth being injured gravely. So, the negligence of Keith was the direct cause for the injuries sustained by Keith. Hence, this requirement is also present in the given case study.



The breach or contravention of duty of care needs to result in the other party being injured or harmed, for damages to be claimed upon. The “but for” test given in Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 proves handy for this purpose. If it can be established that the other person would have been injured, even in absence of negligence, then damages are not to be awarded to the injured party (Strong and Williams, 2011).

The given study shows that if Keith had used the proper material, i.e., had he used hardwood instead of untreated chipboard, which was weaker than the proper material, the same would not have resulted in breakage of the same and Ruth would not have fallen down. Hence, based on this test, the injury would not have been present save for negligence of Keith. This means that Ruth has to be awarded damages due to Keith’s negligence.

Negligent Misstatement

In this particular case, two claims can be made by Ruth, i.e., negligence and negligent misstatement. When a false statement is made, upon which the other person relies and which causes such other person getting injured, it is a case of negligent misstatement. Reliance is the most crucial aspect for making a case of negligent misstatement, without which a claim of the same would not be upheld as was held in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 by the judges (Latimer, 2012).

Keith had made a false statement in the given advertisement, as per which he was a qualified carpenter. In reality, Keith did not possess the requisite qualifications to be held as a qualified carpenter. Ruth, relying upon this false statement made by Keith, undertook his services. So, based on Hedley Byrne & Co Ltd v Heller & Partners Ltd, a claim can be made by Ruth for the reliance over the negligent misstatement of Keith and can apply for damages.


Any party, who can show the presence of the aforementioned factors can make a claim of negligence and get awarded remedies, for both economic and non economic losses (Latimer, 2012). The purpose of awarding damages, as was established in Addis v Gramophone [1909] AC 488, is to bring back the injured party, where they would be in absence of such contravention (E-Law Resources, 2017).

In this instance, Ruth can claim damages for the two months she was in hospital, punitive damages to punish Keith and lastly damages for Keith’s negligent misstatement. But she would not be successful in getting damages for 12 months period where she voluntarily chose not to work, as the same was not related to the negligence of Keith.

Contributory Negligence

The defendants, in cases of negligence, can get the awarded damages to be reduced, in a proportional manner, by showing to the satisfaction of the court that the plaintiff contributed towards the injuries sustained by him (Dongen, 2014). Froom v Butcher [1976] 1 QB 286 was a case where the damages were reduced by £100 as the plaintiff was not wearing seatbelt during the accident, which took place due to the negligence of the defendant (Swarb, 2017).

In the present case study, Ruth was carrying so much stuff while she was descending from the stairs that her view was obstructed, as a result of which, she could not see the missing tread. Ultimately, she fell and got injured. Ruth’s contributory negligence, would allow Keith to get the damages reduced as per Froom v Butcher.



This analysis allows a conclusion to be drawn that Ruth can successfully sue Keith for his negligence and negligent misstatement and claim damages for loss of employment for two months and for her injuries, but she cannot make a claim for her voluntary giving up of job for 12 months period. Also, her damages would be brought down by the percentage as deemed fit by the court, owing to her contributory negligence.



British and Irish Legal Information Institute. (2017) Donoghue v Stevenson [1932] UKHL 100 (26 May 1932). [Online] British and Irish Legal Information Institute. Available from: [Accessed on 22/05/17]

Commonwealth Legal Information Institute. (2017) Vaughan v Menlove. [Online] Commonwealth Legal Information Institute. Available from: [Accessed on: 22/05/17]

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: [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: [Accessed on: 22/05/17]

Jade. (2016) Wyong Shire Council v Shirt. [Online] Jade. Available from: [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: [Accessed on: 22/05/17]

Legislation Victoria. (2010) Wrongs Act 1958. [Online] Victoria State Government. Available from:$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. (2016) Bolton v Stone: HL 10 May 1951. [Online] Swarb. Available from: [Accessed on 22/05/17]

Swarb. (2017) Froom v Butcher: CA 21 Jul 1975. [Online] Swarb. Available from: [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.


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