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Negligence: The Search For Coherence

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Question:

Discuss about the Negligence for the Search for Coherence.

 

Answer:

Introduction: In the present case, the claimant will be Ruth, who wants to bring your claiming negligence against Keith. Therefore Keith will be the defendant in this case. Ruth was to bring action in negligence for claiming damages for injuries suffered by her as a result of the negligence of Keith when he had used a piece of leftover untreated chipboard instead of using hardwood for replacing the rotten timber trade on the back stairs of Ruth. In this case, Ruth will be required to establish in court that the actions of Keith fell below the standard of reasonable care that needs to be applied in this case. Therefore the relevant standard of proof will be to establish that Keith was negligent because any reasonable person would have used hardwood for this purpose.

Analysis: The present case can be decided on the basis of the principles related with negligence. In this context, negligence can be described as the action of a person, where such person has a duty of care towards the other, and as a result of which, injury or loss has been caused to the other person. At the same time, the provisions of Civil Liability Act can be used for the purpose of designing the negligence of a person and the liability of such a person due to the negligent acts of the person. Therefore when a person sues the other person under negligence, that person was financial compensation for the damage suffered by it. In such a case, the person wants to be put in the same place, where it would have been if the other person would not have committed negligence. 

In order to decide if a person can be held liable for negligence, there are four questions that need to be satisfied. Therefore, it has to be seen if the defendant was having a duty of care towards the plaintiff; if this duty of care has been released by the defendant; if any injury or loss has been caused to the plaintiff as a result of such breach and if the injury was the direct result of such breach of duty of care. It needs to be noted that all the above-mentioned factors should be satisfied in order to hold the person liable under negligence. On the other hand, if even one of these factors is not satisfied, the plaintiff could not succeed and it cannot be established that the defendant was liable in negligence (Kujinga, 2009). In this context, the duty of care can be described as the legal obligation which requires the defendant to cause harm. The duty arises when it is reasonably foreseeable that harm will be caused to the other person if reasonable care is not exercised. At the same time, the law requires that sufficient proximity should be present between the two parties for the purpose of the establishment of a duty of care (Deakin, Johnston and Markesinis, 2003). For example, such duty of care is present in case of a relationship between doctor and patient and the relationship that exists between drivers of motor vehicles and other persons present on the road.

According to the civil liability, certain qualifications have been imposed on the duty of care. Like good Samaritans and donors of food. The law provides that the persons who are acting in case of an emergency and without any expectation of money or the persons who are providing food for charity are generally exempted from liability, provided they have not acted negligently (Tomasic, Bottomley and McQueen, 2002).

 

When the breach of duty of care takes place: For the purpose of arriving at the conclusion that there has been a breach of duty of care by the defendant, first of all, the court will consider the standard of care that will be applicable. In this regard, for the purpose of deciding the relevant standard of care, it has to be seen what would be done by any reasonable person under in the circumstances were the same. Therefore, when it can be said that the actions of the defendant would not reasonable or, if the actions of the defendant fell below the standard that can be applied under the circumstances, it can be said that the duty of care has increased by such a defendant. In order to claim that there has been a breach of duty of care, it has to be established that the person was aware or should have been aware of the risk (Gardiner and McGlone, 1998). This requirement is also known as the reasonable foreseeability. Another requirement is that the reason should not be insignificant, and any other reasonable person in the position of the defendant would have taken precautions against causing harm as a result of such risk. The requirement that the risk should not be insignificant is one of the amendments that have been introduced by the Civil Liability Act. As a result of these changes, the bar has been raised. That is required from any other reasonable person before they were required to act (McDonald, 2005). Consequently, while the harm suffered by the claimant should be reasonably foreseeable, it is also required that this should not be insignificant (Hepple, 1997). However in this case, these standards are not clear and therefore the decision has to be made by the court on case-by-case basis.

Apart from it, the precautions that can be considered as reasonable by the court will also vary depending on the circumstances of the case. Therefore the consideration that any of the reasonable man would have made while determining if precautions need to be taken against a risk have been mentioned in the statute. The likely seriousness of the harm also needs to be considered as well as the burden involved in taking precautions for avoiding such risk and the potential benefit of activity due to which other persons were exposed to such risk. 

 Reasonable foreseeability: While deciding if the person was aware of, or should have been aware of the risk, the court can apply the principles stated in Donahue v Stevenson (1932). In this case, the remains of a snail were found in a bottle of ginger beer. This case highlights the significance of the foreseeability of injury or loss that has been caused to the plaintiff as a result of the conduct of the defendant or the lack of action.

It is required under the civil liability at that. The negligence should be a necessary condition of the harm. Similarly the harm suffered by the claimant should fall within the scope of the liability of the defendant. For this purpose, it is required that the connection should exist between the alleged negligence and the harm that has been suffered by the claimant. However, this is a question of fact. Therefore, a popular articulation of causation provides that "but for the actions of the defendant, the harm suffered by the plaintiff would not have taken place". This is also known as the 'but-for' test. But this test has been re-worded by the Civil Liability Act and it has been mentioned that the cause is a necessary element required for the harm to have taken place.

The law asked the question in this regard, if the foreseeability was appropriate to extend the scope of liability of the person who has breached the duty to the harm suffered as a result of it. In this regard, the law takes into account the policy issues that may be present. Therefore it has to be considered if there is any reason to which the defendant should not be held liable.

An example in this regard can be given of the case titled Commonwealth v Verwayen [1990] HCA 39, where it was held that the Commonwealth had breached its duty of care. When due to negligence, a ship sank. In this case, although the Commonwealth was held responsible for the accident, but the plaintiff brought action for lung and liver cancer, which was the result of having smoking and drinking by the plaintiff that started after he underwent the accident. Earlier the courts have discussed this issue in context of remoteness and proximity. The other relevant factor in this regard is that of 'an intervening cause'. Under the Civil Liability Act, this issue is considered in context of policy reasons. Hence it is seen if it would be inappropriate to consider one party liable for all the consequences of a particularly event when there are intervening factors present like the own choice of a person.

In such a case it is also required that the risk should not be insignificant. In most of the cases, the breach of duty is self-evident. Another requirement has been introduced by the Civil Liability Act according to which the standard that is applicable while discovering a breach of duty is that there is should not be an insignificant risk. However, it is not clear how much a not insignificant risk goes beyond the requirement of reasonable foreseeability. And this question has to be decided on the basis of the facts of each case.

Apologies: According to the law, an apology that has been made by a person regarding any matter that has been alleged to be caused by the person does not amount to express or implied admission of liability by such a person regarding that matter. Similarly, the apology is not relevant for the purpose of deciding the liability of the person regarding such a matter. Therefore, in any civil proceedings, the evidence of apology cannot be provided as the evidence of the liability of the person. In this regard, apology can be described as an expression of regret or sympathy or a general sense of benevolence related with any matter, whether or not there is an admission of fault in the apology.

Another issue that is present in this case is related with contributory negligence. It can be said that the plaintiff had contributed a negligence when it is found that the injured person has also contributed to the injury or the loss suffered by it. Therefore, when the plaintiff failed to exercise reasonable care regarding their own safety, it can be said that the plaintiff has also contributed in negligence. In such a case, the amount of damages that may be claimed by the plaintiff will be refused in accordance with the extent to which the plaintiff is found to be contributed to the loss. Some of the examples of contributory negligence include a fall or a slip taking place due to the failure of the injured person in keeping a lookout regarding their own safety when it was reasonable for them to do so. Similarly, while involving in a high-risk activity, it can be said that the plaintiff had contributed in negligence. 

Conclusion: On the basis of the above-mentioned discussion and after going through the principles related with the law of negligence, it can be said that in the present case, Keith was liable in negligence for injuries suffered by Ruth. The reason is that in the present case, Ruth had advertised that he was a qualified carpenter, but in reality he did not have any trade qualifications. The result was that when Ruth asked Keith to replace a rotting timber tread on her stairs, instead of using hardwood, Keith used leftover undulating chipboard. The result was the after many nights of heavy rain, the replaced tread swelled and eventually it collapsed completely during the night. When Ruth was walking down the back stairs, early-morning, she failed to notice that the tread was missing. This was due to the reason that she was carrying many feeding dishes, and cleaning equipment there for her vision was obscured. As a result, she fell on the stairs. In this case, it is the negligence of Keith due to which Ruth had suffered these injuries.

However, the apology made by Keith cannot be considered as an admission of his fault. Similarly, it can also result in this case that Ruth had also contributed in the injuries suffered by her. On these grounds, it can be concluded in the present case, the Ruth can claim compensation from Keith but the amount of compensation will be reduced, keeping in view, that she had also contributed in negligence. Moreover, Ruth can only be allowed to claim compensation for two months as this was the period that she took to recover. Therefore Ruth cannot claim compensation for 12 months for which she had decided to stay home and do unpaid charity work.

 

References 

Bob Hepple, (1997) ‘Negligence: The Search for Coherence’ 50 Current Legal Problems 69

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

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