Whether Ruth can sue Keith under law of negligence? If so, then, can Keith prove the contributory negligence on the part of Ruth and get the compensation to be paid by him reduced?
The case law is related to the law of negligence and the parties upon which the present case law is based are Keith and Ruth.
Ruth being an injured is a Plaintiff and Keith being a wrongdoer is the Defendant.
Remedy or kind of action that Plaintiff can seek in the provided case law is under the law of negligence and the Defendant if proved to be negligent will have to compensate the Plaintiff for the loss suffered by her. However, the Defendant can get the compensation to be paid by him to the Plaintiff be reduced if he can prove that the Plaintiff was also negligent and had contributed to her injury under the defence of contributory negligence on the part of injured.
Law of negligence
A person can be held liable under the law of negligence if he performs his duty carelessly and in turn causes injury to the plaintiff who suffers injuries due to carelessness of the performer of act, that is, the defendant.
The leading case of (Donoghue v Stevenson , 1932)is the famous case which has contributed in the development of the law of negligence. The leading case submits that in order to be held negligent, the defendant must owe duty of care to his neighbour and must carry out the act diligently. But, the defendant was found to be breaching the duty of care that is established upon him and due to the breach of duty of care an injury is caused to his neighbour, that is, the plaintiff. (Francis, Peter, & Mark, 2007)
zhus, the three important ingredients to hold the defendant liable under the law of negligence that must be satisfied are:
Duty of care
Duty of care means the care which the defendant should take while performing his acts as he should perform his acts in such a manner so that they do not cause any harm to any person in any manner. The person is said to have duty of care if his acts are likely to injure any plaintiff, that is, neighbour (Natcraft Pty Ltd & Anor v Det Norske Veritas & Anor , 2002). (Allan, (2007). )
However, duty of care can only be casted upon the defendant if there are two elements which are present, that is:
Reasonable forseeability - Duty of care upon the defendant can only be for such acts that are reasonably foreseeable in nature and can cause injury to the plaintiff. In case the injury which is caused is not foreseeable by a normal prudent person in the like circumstances, then, the defendant cannot be said to be negligent (Rogers v Whitaker, 1992). In case the act of the wrongdoer is reasonably foreseeable which may cause injury to the injured, then, he should take proper precautions while performing the act. (Jürgen & Wolfgang, 2006)
Neighbourhood - The concept of neighbourhood was developed for the first time in the leading case of (Donoghue v Stevenson , 1932). The principle of neighbour means that anybody who is n closeness or in proximity to the defendant in such a manner so that there is presence of apprehension that that plaintiff might gets injured by the acts of the defendant, then, the plaintiff is considered to be the neighbour of the defendant (Albrighton v Royal Prince Alfred Hospital, 1980).
It implies that anybody who can get injured by the act of the person performing the act is neighbour as per the law of negligence. But a person is termed to be neighbour only when a prudent person can assess that the act of the doer can cause injury to that neighbour or injured. In case a prudent person in like situation cannot think that injury can be caused by the act of the doer then the doer is not liable under this law as there is no proximity amid the injured and the wrongdoer. (Cameron, Ian, & Malcolm, 2007)
Compliance of the principle of neighbourhood and reasonable foreseeability make a defendant to carry out his actions with all due care and precautions.
Breach of duty of care
When a wrongdoer is under duty not to act in such a manner so that any injury is inflicted upon his neighbour, however, when he still performs his actions which do not comply with the duty of care that is imposed upon him, then, he is said to have breached the duty of care obligated upon him. When the wrongdoer does not take proper care and caution while performing his acts then in such case he is said to have violated the duty of care burdened upon him (Bolam v Friern Hospital Management Committee, 1957). Even if the wrongdoer takes precautions but if they are not adequate and up to the level of acre that is expected from him, then, he is said to have breached the duty of care. The level of care is different in different situations and the wrongdoer must take proper care depending upon the situation and circumstances. (Kim, Bonnie, & Sheryl, 2014)
The last step to prove negligence on the part of wrongdoer is when the wrongdoer is proved to be obligated with duty of care and it is also proved that he had breached the duty of care obligated upon him, then it is also necessary to prove that the injury must have sustained injury due to breach of duty of care on the part of the wrongdoer. In case no injury is inflicted upon the plaintiff by the acts of the wrongdoer, rather, the injury is sustained because of some reason other than the breach of duty of care on the part of wrongdoer, then, in such cases the wrongdoer cannot be held liable under the law of negligence (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or "Wagon Mound (No. 1), , 1961).
The wrongdoer is liable only when the proximity is proved between the act of the wrongdoer and the injury sustained by the injured. There must be remoteness amid the injury and the breach of duty of care. In case the event which caused the injury to the injured is reasonably foreseeable, it is then only the wrongdoer can be held liable under the law of negligence. In case the damage caused is too remote and cannot be assessed by a common person then the injured cannot claim any claim under the law of negligence. (Andy & Douglas, 2013)
Also, causation must be proved before imposing any kind of liability under the law of negligence. There must be direct link amid the injury is caused and the breach of duty of care. The cause of the injury must be the breach of duty of care on the part of the defendant.
When all the ingredients of negligence, that is, duty of care, breach of duty of care and injury is cased due to breach of duty of care, then only an injured can claim under law of negligence from the wrongdoer and in case any one of the element is missing from the chain, then, the wrongdoer cannot be held liable under the law of negligence (Mount Isa Mines Ltd v Pusey, 1971).
The wrongdoer can protect himself if he can prove that the injury sustained by the injured had been caused to him not only because of his negligence but the injured has also contributed to his own injury (Joslyn v Berryman, 2003). In case the injury to the injured is caused to the injured by the fault of wrongdoer along with his own fault then it is said contributory negligence on the part of the injured. In such case the wrongdoer takes the defence of contributory negligence on the part of injured and if it is proved by the wrongdoer that the injured was also negligent along with the wrongdoer then the liability of the wrongdoer is apportioned accordingly. (Douglas, 2016) The law is now applied.
Application of law
As per facts,
Keith being a home handyman advertises in Buderim Bugle as a qualified carpenter but he had no trade qualifications regarding same. Ruth works as a teacher’s aide at local school.
Ruth appoints Keith to replace a rotting timber tread at her back stairs. Keith replaces tread but in repairing the same he uses piece of left over untreated chipboard instead of the hardwood. Few weeks later after heavy rain tread swells and collapses overnight. Ruth unaware of the collapse walks down the stairs to feed her caged birds. She took a large number of dishes for birds and cleaning equipment subsequent to collapse of the tread. Due to Ruth carrying things her vision was obscure and she did not notice the missing tread and fell down dislocating her knee. Ruth recovered after two months but did not returned to her job and resigned and decided that she will stay at home for 12 months
In the instant case,
Keith did not did his job properly as he had to replace the rotting timber tread with good quality hardwood, but, he used left over untreated chipboard which was not right to do as the repairs were to be carried on stairs and stairs are meant to be perfect and meant to be used regularly and they should be proper as to sustain weight of the person. Keith was very well aware of the fact that the stairs meant to be perfect and had obligated duty of care to repair them properly as rightly held in (Donoghue v Stevenson , 1932)
But, by repairing them with rotten timber he breached the duty of care. He put the user of the stairs in danger as he had not taken due care while repairing the stairs with the level of care and the standard of care to be taken by him.
This breach of duty of care resulted in injury to Ruth. The act of injury to anybody using the stairs was reasonably foreseeable by Keith as a prudent person in like situation have assessed.
In the instant case all the ingredients of negligence are satisfied.
There was duty of care on Keith to protect his neighbor, that is, Ruth thus by repairing the same with bad quality of wood, the was breached causing harm to Ruth. There is clear proximity between the act of Keith and the injury caused to Ruth so Keith is negligent in the instant case.
However Keith can diminish his liability by taking plea of contributory negligence, as he can state that Ruth while she was injured was carrying many feeding dishes and cleaning equipment which obscured her vision and she did not noticed the missing tread and fell down and injured herself. The plea of contributory negligence taken by Keith can help Keith in minimizing his liability and by availing the precedent of (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or "Wagon Mound (No. 1), , 1961)
Moreover Ruth did not joined work for 12 months but was well after two months. So Keith will be liable after applying contributory negligence but only for two months loss of pay and injury (that too proportionately as there is contributory negligence on part of Ruth) as she was well after two months and chose not to work for 12 months.
Thus it is crystal clear from the facts that Keith was obligated and was under duty of care to repair the stairs properly but he breached his duty and thus caused injury to Ruth. So in all Keith is negligent but he can reduce his liability by taking defence of contributory negligence. To conclude, Keith can be sued by Ruth under law of negligence and Ruth will get damages as there is negligence on the part of Keith.
Albrighton v Royal Prince Alfred Hospital (1980).
Allan, B. ((2007). ). Rediscovering the Law of Negligence. . Bloomsbury Publishing.
Andy, G., & Douglas, F. (2013). Business Law 2014. Pearson Higher Education AU.
Bolam v Friern Hospital Management Committee (1957).
Cameron, S., Ian, K., & Malcolm, P. (2007). The Australian Medico-legal Handbook. Elsevier Australia.
Donoghue v Stevenson (1932).
Douglas, H. (2016). The Law of Intervening Causation. . Routledge.
Francis, T., Peter, C., & Mark, L. (2007). The Law of Torts in Australia. Oxford University Press.
Joslyn v Berryman (2003).
Jürgen, B., & Wolfgang, W. (2006). Third-Party Liability of Classification Societies: A Comparative Perspective. Springer Science & Business Media.
Kim, A., Bonnie, B., & Sheryl, L. (2014). Ethics and Law for Australian Nurses. . Cambridge University Press.
Mount Isa Mines Ltd v Pusey (1971).
Natcraft Pty Ltd & Anor v Det Norske Veritas & Anor (2002).
oslyn v Berryman (2003).
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or "Wagon Mound (No. 1), (1961).
Rogers v Whitaker (1992).