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Question:

Wendy has recently moved into a new suburb and is keen to make some new friends. She thought the best way to do that would be to host a party for her neighbours and their children.

On the day of the party, she noticed that parts of the swing, which was to be the main attraction for the children, had started to rust and looked unsafe.

In an effort to make it more sturdy, she applied tape to the rusted areas hoping that it would keep the swing together. She figured that the swing, which was designed for 5-10 year old children, could easily handle the weight of the children at the party, who were all under the age of 3. Throughout the day, the children were riding the swing without incident.
 
After the children left, the adults in the party started drinking wine. One of Wendy’s neighbours, Stan was slightly intoxicated. He went into the backyard and started riding the
swing. The swing broke where it had rusted and Stan fell to the ground severely hurting his back.

Using relevant legislation and case law:

1. Advise Stan whether he has a claim in negligence against Wendy.

2. What possible defence/s can Wendy use against a claim in negligence by Stan?
 

Answer:

Negligence

Issue:The issue that gave rise to this particular discussion is whether Stan has any rights to file a suit against Wendy for his own physical injury?

Rule: Negligence is an act on part of an individual who tries to neglect his/ her duty of care that causes injury to another be it in physical form, mental or even economic. Negligence is deemed to be an act of carelessness on part of an individual that causes harm to another. In order to prove that an individual is guilty of negligence on their part, four elements need to be proved, first is the duty of the care that an individual has towards the other, second element is the breach of that duty of care, thirdly, the cause of that particular breach and lastly, the harm or the injury caused to another individual due to this breach.  

Application: Wendy in this case has taken care of the duty she had towards the children. It is clearly stated that all the aspects related to the negligence were taken care of by the host at the time of her party. It was the negligence on part of Stan who should have taken care of the duty he had towards himself. His actions showed breach of duty on his own which reflected on the action he took towards using a kid’s swing for himself which was bound to break since it was for the use of 5-10 years old children. Injury was caused due to the actions of Stan himself while he was intoxicated which makes it difficult to figure out if he shall be responsible for the injury caused. The kids swing could have broken despite the fact that it was rusty by the weight of a fully grown male individual.

Conclusion: Wendy in this case, is in no manner responsible for the injury caused to Stan as it was something foreseeable on general part and everyone could see as well expect a fall as the swing was meant for small children and not a grown man as stated in the case of Caparo Industries Plc v Dickman [1990] 2 AC 605  (E Lawresources, 2020). Hence, damages cannot be claimed by Stan from Wendy. Although, there is a slight chance of claiming Contributory Negligence on part of Wendy if need be as she was slightly at fault as well, while in this situation, this claim cannot necessarily be made in court or it is not necessary that the court will entertain such kind of negligence as most of the fault was on part of Stan here, as in the case of Capps v Miller [1989] 1 WLR 839, where the fault was entirely of the defendant and the allegation regarding contributory negligence on part of the plaintiff was not entertained by the court (E Lawresources, 2020).

 


Issue
:The issue that shall be discussed here is what kind of defence is there that can be used by Wendy so as to protect her from the claim of negligence made by Stan.

Rule: Contributory carelessness happens when an offended party's direct falls beneath a specific standard essential for the offended party's assurance and this lead helps out the respondent's carelessness in making hurt the offended party. In plain English, this implies the offended party no doubt would have stayed away from wounds had the person not likewise been careless. An exemption to the contributory carelessness guard is known as "last clear possibility," when the respondent could have abstained from causing injury by utilizing common consideration  (Find Law, 2018).

Application: In such a situation Wendy here can file a claim for non –negligence on her part and can first of all show that Stan was intoxicated and committed the mistake on his own. Apart from this, she can also claim for a contributory negligence and state that measures were taken on her part but since only temporary aspect was taken care of, it is a case of contributory negligence. In this case, even Stan is at fault as he got intoxicated and sat on a kid’s swing which resulted in him, self -harming.      

Conclusion: Hence, contributory negligence can be claimed by Wendy so as to defend her case. Other major two defences against the suit filed by Stan that Wendy can opt for includes the assumption of risks as well as Comparative Negligence. When an individual commits a mistake on their own making things difficult for them as well as others ultimately leading on to a situation of harm, here the negligence is considered to be on part of both the parties, as in the one that is actually being negligent regarding the whole situation of danger as well as the individual who created the dangerous situation.

 

Bibliography

E Lawresources. (2020). Caparo Industries pIc v Dickman [1990] 2 AC 605 House of Lords. Retrieved May 21, 2020, from E Lawresources: https://e-lawresources.co.uk/cases/Caparo-Industries-v-Dickman.php

E Lawresources. (2020). Capps v Miller [1989] 1 WLR 839 Court of Appeal. Retrieved May 21, 2020, from E Lawresources: https://www.e-lawresources.co.uk/Capps-v-Miller.php

Find Law. (2018). Defenses to Negligence Claims. Retrieved May 21, 2020, from Find Law: https://injury.findlaw.com/accident-injury-law/defenses-to-negligence-claims.html

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