Principles Of Commercial Law: Keith And Ruth - Negligence, Personal Liability, And Contributory Negligence

Negligence and Personal Liability of Keith

Discuss about the Principles Of Commercial Law Keith and Ruth.

Whenever there is an accident or injury, many people often associate it with negligence. It is true that ‘Negligence’ from an individual or company can result in harm to an individual and the individual can hold the person or company legally responsible for the injuries. In a general tone, when a person acts carelessly and his or her actions bring about injuries to another person then the careless individual will be held legally liable for any of the resulting harm under the negligence legal principle (Hedley, 2016). The negligence legal principle is used in most disputes that involve an injury or accident, in informal settlement talks, and also in the personal injury lawsuits. But to win the negligence case, the plaintiff has to prove that the defendant acted negligently in that he or she owed the plaintiff a legal duty under the circumstances. Also, the plaintiff has to demonstrate that the respondent breached the legal duty by acting carelessly and that the actions or inaction caused the injury. Additionally, he or she has to prove that the injury was a result of the decisions of the defendant. Moreover, because accidents do happen and they take place every day resulting in injuries and damage to properties, one might wonder whose fault it was that led to the crash. The concept of contributory negligence addresses this issue and helps to allocate blame to the concerned party since a party may add to an act of negligence contributing to personal injuries. Contributory negligence is a term used to characterize behavior that may create an unreasonable risk to individual self. The general notion is that a person should act and behave as a reasonable and responsible person failure to which in the case of injury occurs, then the person is partially or entirely responsible for any resulting harm. Hence contributory negligence is more of a partial defence where both parties can apportion the loss. Therefore, this paper aims at examining negligence, personal liability, and contributory negligence as they apply to the case of Keith and Ruth.

The negligence law gives out the risk of personal liability for damages by holding individuals responsible for negligently causing harms. But first, before claiming the damages, it is vital for the plaintiff, in this case, Ruth to establish liability and prove Keith’s Negligence. According to Raz (2010), liability brought about by harmful negligence is based on the defendant’s responsibility for the violation of a particular duty. It can be a duty not to cause harm and hence can be excused if they acted with due care. It can be a duty of care where one is liable to the damages when the violation caused harm. And lastly, it can be both a duty not to bring harm through negligence and a duty of care. In this case, Keith had a duty of care to act as expected of his work and replace the rotting timber tread with hardwood but he instead uses a piece of left over untreated chipboard which eventually swelled and collapsed. It is evident that he owed Ruth a duty of care but failed to fulfil it hence the harm sustained by Ruth are as a result of Keith not taking action that he would have otherwise made.

Contributory Negligence of Ruth

In the common law, to establish liability, a plaintiff has to prove that the defendant owed him or her a duty of care. In The Tort Law, an individual who breaches the duty of care through recklessness and negligence is personally liable for the harm the other person suffers as a result of the failure to be reasonably careful (Misenti, 2016). Furthermore, it is the responsibility of a person doing business to be reasonably careful when dealing with others. Besides, in most tort situations, an individual is expected to act as any reasonable person would act. But in real life, there is nothing like a reasonable person, but merely the tort law creation used to measure a real person’s actions to those of a reasonable person’s. According to the tort law, the imaginary rational individual is always attentive and acts diligently while considering that a particular action will bring harm to a person and instead chooses a safer course of action. However, sometimes there may be no better course of action than the one applied. When the standards of a reasonable person are used, the actions of the defendant are compared to what would have been the actions of a rational person in the same situation. Hence the defendant may be found personally liable if his or her actions do not live up to those of the hypothetical reasonable person.

Keith should also have acted as a reasonable person by being always attentive and working diligently. When comparing his actions with those of a reasonable person, Keith failed to uphold the duty of care expected of him. He neglected to follow the reasonable standards that apply when giving services to another and thus also failed to live up to the actions of a reasonable person. Hence, the courts may find Keith negligent and liable for the injuries caused by his negligence.    

However, negligence may not be solely on the part of Keith but also on Ruth’s part. The Law Reform Act 1945 (Contributory Negligence Act) states that when a person suffers some damages or experiences harm partly because of his or her own doing, then a claim will be made as a partial defence by reason of the negligence on the part of the individual suffering damages (Devenney and Johnson, 2013). Contributory negligence is expected to operate as a partial defense whereby the loss is divided between the two parties (Goudkamp, 2015). It was found in Revill v Newbery [1996] 2 WLR 239 that contributory negligence is something that will often succeed most especially when the other defenses fail. Furthermore, in Pitts v Hunt, the courts used the contributory negligence Act to find the claimant 100 percent guilty of contributory negligence (E-lawresources.co.uk, 2017). Moreover, the court finding was considered to be illogical and inconsistent due to the wording of the Act that necessitates the damage to be shared by both the plaintiff and the claimant (Goudkamp & Klar, 2016).

Hence for one to be accused of contributory negligence, it is the duty of the defendant to provide proof that the plaintiff failed to take proper measures to ensure their safety, and that the lack of good care contributed to the damage suffered. It was found in Capps v Miller [1989] 1 WLR 839 that failing to take proper care of one’s safety is considered to be contributory negligence such as failure to wear a crash helmet when riding a motorcycle. In Jones v Livox Quarries, exposing oneself to danger is also contributory negligence (E-lawresources.co.uk, 2017). Hence, it requires that an individual becomes able to foresee harm to himself since if he reasonably might have expected it, and failed to act as a prudent and reasonable person then he is considered negligent and must be held liable for part of the damages experienced (van Dongen & Verdam, 2016).

 If Keith could manage to prove that the injuries suffered by Ruth were due partly to her fault, then she may be forced to cater for part of the compensation. Section 1 of the Law Reform (Contributory Negligence) Act 1945 requires that whenever a claimant suffered loss or injury partly due to his or her act of negligence, then there should be an apportionment of the loss incurred (E-lawresources.co.uk, 2017). The court will examine the claimant’s responsibility for the damages and reduce the claim in a just and equitable manner (Goudkamp, 2015). The harm on Ruth’s part was foreseeable especially since the replaced tread began to swell weeks later. It was unavoidable for her to miss seeing the swelling because she walks down the stairs every morning to feed her caged birds. Furthermore, after she noticed the swelling tread, she should have taken measures to have it repaired again and avoided that path until she was sure it was safe. Moreover, she ignored the swollen tread and continued to use the stairs, and what’s more, she used it without proper measures of care to ensure her safety contributing to the damage and injury suffered.

Therefore, the advice to Ruth regarding her negligence case against Keith would entail the negligence and personal liability that is evident on the side of Keith putting the tort law into consideration as well as the event of contributory negligence that the Keith might use against her to reduce the number of damages. But first, for Ruth to have a negligence case, she would have to prove that Keith was the one responsible for her accident since he had a duty of care and acted negligently. This would not be hard due to the materials Keith used while he was supposed to use other quality products to do the repair. I would advise Ruth to use the seriousness of her injury, the damages to her house, as well as the damages to her job to set a strong case against Keith. Alternatively, I would assert that she would also have to be held partially liable for the contributory negligence act since she failed to take proper measures to ensure her safety. She should have avoided using those stairs or guaranteed to check it well before using it. But since there was an actual injury, Ruth may need not to worry since the defendant will have to pay some of the damages provided she would be able to prove that the injuries suffered are closely connected.

Additionally, it would be vital to let her know that aside from the contributory negligence, Keith may also attempt to use the defense of consent to the injury to defeat her claim for damages. But my utmost advice to her would be to let her know that she will also be held partly liable for the injuries due to contributory negligence and that if Keith succeeds to prove that she was indeed responsible for the contributory negligence, then she would receive a partial compensation for the damages (Goudkamp & Nolan, 2016). 

Hence, in conclusion, conducting actions negligently and causing harm may result in negligence and personal liability forcing one to pay for damages. But in most cases, both parties are usually at fault for being negligent in one way or another resulting in harm or loss. A plaintiff may be accused of contributory negligence due to part of their actions that are not viewed as the decisions of a ‘reasonable person.’ Hence, to avoid the cases of neglect, it is vital to act reasonably while considering the best possible actions before carrying out activities.

References

Devenney, J. and Johnson, H, 2013, ‘Contract, Tort and Restitution Statutes 2011-2012,’ 1st ed. Hoboken: Taylor and Francis.

E-lawresources.co.uk. (2017). Contributory negligence. [online] Available at: https://e-lawresources.co.uk/Contributory-negligence.php [Accessed 30 May 2017].

Goudkamp, J, & Klar, L 2016, 'APPORTIONMENT OF DAMAGES FOR CONTRIBUTORY NEGLIGENCE: THE CAUSAL POTENCY CRITERION', Alberta Law Review, 53, 4, pp. 849-862

Goudkamp, J, & Nolan, D 2016, 'Contributory Negligence in the Twenty-First Century: An Empirical Study of First Instance Decisions', Modern Law Review, 79, 4, pp. 575-622.

Goudkamp, J 2015, 'Apportionment of damages for contributory negligence: a fixed or discretionary approach?', Legal Studies, 35, 4, pp. 621-647.

Goudkamp, J 2015, 'Apportionment of Damages for Contributory Negligence: Appellate Review, Relative Blameworthiness and Causal Potency', Edinburgh Law Review, 19, 3, pp. 367-373.

Hedley, S 2016, 'Making sense of negligence', Legal Studies, 36, 3, pp. 491-512.

Misenti, NC 2016, 'PERSONAL LIABILITY FOR COMMISSION OF A TORT: A SIGNIFICANT, AND OFTEN OVERLOOKED, EXCEPTION TO LIMITED LIABILITY IN THE LLC AND CORPORATION', Southern Journal Of Business & Ethics, 8, pp. 11-37.

Raz, J, 2010, ‘Responsibility and the Negligence Standard,’ Oxford Journal of Legal Studies, 30, 1, pp.1-18.

van Dongen, E, & Verdam, H 2016, 'The Development of the Concept of Contributory Negligence in English Common Law', Utrecht Law Review, 12, 1, pp. 61-74.