The major issue that has developed from the above case study is whether Ruth can sue Keith under the law of negligence. If yes, then are there any defences upon which Keith can rely in order to protect himself from the liabilities of negligence.
There are two parties involved in the case study, that is, Keith who is the defendant in the given situation and Ruth, who is the Plaintiff in the given situation. The Plaintiff must seek an action of negligence against the Defendant. It is the plaintiff who has to prove that the defendant was negligent in his actions. However, Defendant can rely on the contributory negligence defence in order to protect himself. The main elements of actions that are required to prove are the duty of care, breach of duty of care and damages.
The law of negligence is a common law principle which is applicable in the given case study. The (Donoghue v Stevenson (1932), lays down the basic elements which are required to be established in order to hold any defendant liable for the negligence against the plaintiff. (Robert, 1998)
The First element that is required is the element of duty of care. The duty of care is an element which is the first ingredient to prove negligence. The defendant has a legal obligation according to which his acts or omission should not harm any plaintiff who is his neighbour ( (Graham Barclay Oysters Pty Ltd v Ryan (2002).
A neighbour is a person who is so connected with the defendant that his actions directly fall upon such person and they become neighbours of each other. There is proximity relationship between the two and thus the defendant should be careful while taking his actions against such person so that no harm is caused to him (Sullivan v Moody (2001)).
The defendant is responsible for all those actions and inactions towards the plaintiff the effect of which can be evaluated by the defendant through reasonable means. The impact of his act can be reasonably foreseeable by the defendant. If the effect is reasonably foreseeable in such situations the defendant must protect the plaintiff from such impacts or else forgo such tasks (Tame v New South Wales (2002).
Basically, he has the duty to provide utmost care and precautions to the plaintiffs against all his actions or omissions.
The Second element that is required is breach of duty of care. The breach of duty of care signifies that the defendant when is imposed with the obligation of care however such obligation is not catered by him, then, there is violation or breach of duty of care by such defendant. The defendant is not able to reach at the desired level of care that is expected from him in the given situation and because of such lapse the duty of care is considered to be violated. For example, if an expert is assigned with the task of performing some action then he must perform the same with an expected level that is desired from him. If the level falls short of the said level then there is breach of duty of care and is held in (Chapman v Hearse, 1961).
When defendant pursues any activity then he must pursue the same in such manner so that it covers the risk that is involved in such transaction. If the precaution fall short of the risk involved then the required level of care is not met by the defendant and the duty of care is considered to be violated by the defendant ( (Bolton v Stone, 1951)
If the defendant is an expert and is aware of the kneeled that is required in any given situation, then, he must use such expert knowledge while catering his duty and if such duty falls short of the risk that actually occurs and which was reasonably predictable by the defendant then there is breach of duty of care.
The Third elements of the damages. Once the duty of care that must be furnished by the defendant is not catered by him adequately, that is, he is not able to meet the required level of standard of care that is expected from him in the given situation, then, it is very necessary that because of the breach of the duty of care, there must be some kind of damage that must be perceived by the plaintiff. If the plaintiff does not suffer any kind of harm from the breach of duty of care then there is no negligence on the part of the defendants. The damage can be mentally or physically but there must be some kind of damage (Gates v McKenna (1998).
However the damage that is caused to the plaintiff can only be considered to be caused because of the breach of duty of care provided that the damages that are so caused to the plaintiff must be easily anticipated by the defendant, that is, the damages should not be remote in nature. Also, the damages that are so caused to the plaintiff must be because of the breach of the duty of care. There must be presence of causation amid the impact and the breach and is held in (Wiszniewski v Central Manchester Health Authority (1998).
When all the three elements that are required to prove negligible are established against the defendant the defendant is considered to be negligent in his actions. The plaintiff can then sue the defendant for negligence and claim the losses that are sustained by him and are held in (Carroll v Fearon (1999).
But, even when the defendant is imposed with the liability in the law of negligence but still the defendant can protect his interest by protecting himself under the defence of contributory negligence.
The law of contributory negligence signifies that the loss that is caused to the plaintiff is not only the result because of the wrong that is committed by the defendant alone, but, the loss that is caused to the plaintiffs also the result if the negligent actions of the plaintiff himself. The plaintiff has also indulged herself in such actions which have also contributed to her own loss. In such situations, the defendant is not liable for the whole account of negligence but the defendant liability is reduced to the extent the plaintiff was liable for her own injury and is held in (Astley v Austrust Limited (2000).
Thus all these elements together establish the legal principle that governs the law of negligence. The law is now applied to the facts of the give case study.
The facts reveal that Keith (Defendant) is indulged in the profession of home handyman. He has placed an advertisement in the local Buderim Bugle as a qualified carpenter. However, he has no qualification regarding the same.
Ruth (Plaintiff) is a homeowner and works as a teacher’s aide at a local school.
Ruth wants to replace a rotting timber tread on her back stairs. He hires Keith for the said work and he replaces the tread.
It is now submitted that the task that is assigned to Keith was the replacement of the timber treat on the stairs of Ruth. He is aware that the stairs are in continuous use and will be availed by Ruth now and then. Thus, the wood or the timber that must be used by him must be of acceptable quality so that no damage is later caused to Ruth because of any accident that might cause because of the collapse of the stairs.
The Keith is under the legal duty to provide care to Ruth is because Ruth can be considered to be the neighbor of Keith. Ruth is the neighbor because any action of repairing the staircase of Ruth by Keith will directly impact the interest of Ruth. If the staircase breaks then Ruth will face direct impact. Thus, both of them is neighbors (Graham Barclay Oysters Pty Ltd v Ryan (2002).
Also, Keith can reasonably foresee the impact if the staircase is not adequate replaced by him. Ruth is in continuous use of the staircase and thus the impact that might occur is reasonably foreseeable by him.
Thus, there is duty of care that is imposed upon Keita and he must build the stairs in such manner so that no damages or injury might be caused to Ruth.
However, the legal obligation of care that is imposed upon Keith was not adequately complied with by him.
When Keith replaces the tread he uses a piece of left over untreated chipboard instead of hardwood. Keith is aware that since the stair case is used regularly by Ruth thus the use of a left over untreated chipboard will not be an adequate replacement as there are chances that it might collapse. the level of care and the standard of care that is expected from him to be comply with is not performed by him. The precaution taken by him all short of the harm that might incur because of the act of Keith. Thus, there is a clear breach of duty on the part of Keith.
Because of the breach of duty of care by Keith, damages are suffered by Ruth. After weeks and because of heavy rainfall, the replaced tread swells and eventually completely collapses overnight. Because of the collapse of staircase, Ruth falls heavily downs the stairs dislocating her knee. Thus, because of the breach of duty of care by Keith, Ruth has suffered damages. The damages that are resulted to Ruth are because of the breach of the duty of care by Keith. Also, the damages that are caused to Ruth are reasonably foreseeable by Keith. Thus, the damages come within the preview of the law of negligence.
Thus, there is clear duty of care that is imposed upon Keith which is not adequately catered by him resulting in breach of duty of care and because of such breach of duty if care damages are sustained by Ruth. Thus, Ruth can easily bring an action of negligence against Keith.
However, Keith in order to protect his interest can take the defense of contributor negligence. He can privet that when the accident took place at that time Ruth was walking down the stairs in order to feed her caged birds. However when she was climbing done the stairs at that time she was carrying large number of feeding dishes and other cleaning equipment which has obscured her vision and she fails to notice the missing tread.
If she was not carrying the dishes and if she would have been walking with all due care and precaution the accident that had taken place might be avoided or the loss that is caused to Ruth can be of not such aggravated nature.
Thus, the loss that is caused to Ruth is not because of the negligence of Keith alone, rather, Ruth himself is also involved as he was walking negligibly.
Thus, Keith can take the defense of contributory negligence and can thus try to mitigate the liability that is imposed upon him.
Also, Keith is only liable for the loss that is caused to Ruth berceuse of the accident that took place because if the negligence of Keith. However she recovered firm the injury after two months but voluntary decided not to go to work for next twelve menthe. So, Keith is not liable to pay compensation for the loss that is attributed to her voluntarily. Keith will only pay her for the loss of two months which is faced by him for the recovery of his injury.
Conclusion
It can thus be submitted d that there was a duty of care that was imposed upon Keith under the law if negligence however such duty of care was not catered by him adequate and because of which injuries is sustained by Ruth. Thus, Ruth can bring an action of negligence against Keith. But, Keith can protect himself under the defense of contributory negligible and may reduce his liability proportional. But, he is answerable for the loss of only two months and not for loss that is caused to Ruth by not joining his employment after his recovery.
Astley v Austrust Limited (2000).
Bolton v Stone (1951)
Carroll v Fearon (1999).
Chapman v Hearse (1961)
Donoghue v Stevenson (1932).
Gates v McKenna (1998).
Graham Barclay Oysters Pty Ltd v Ryan (2002).
Sullivan v Moody (2001).
Tame v New South Wales (2002).
Wiszniewski v Central Manchester Health Authority (1998)
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