Principles of Commercial Law
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Keith is a home handyman who advertises in the local Buderim Bugle as a qualified carpenter, although he has no trade qualifications. Ruth is a homeowner and works as a teacher’s aide at a local school.
Ruth arranges with Keith for him to replace a rotting timber tread on her back stairs. Keith replaces the tread. However, instead of hardwood he uses a piece of left over untreated chipboard. Several weeks later, after several nights of heavy rain, the replaced tread swells and eventually completely collapses overnight. Ruth walks down the back stairs early each morning to feed her caged birds. Ruth takes with her a large number of feeding dishes and other cleaning equipment on the morning following the collapse of the tread. The things Ruth is carrying obscure her vision and she fails to notice the missing tread. She falls heavily downs the stairs dislocating her knee.
Keith called Ruth in the hospital the next morning and he told her how sorry he was that she was injured. Ruth fully recovered after two months. However, she did not return to paid employment. She resigned and decided to stay home for 12 months after the incident to devote her time to unpaid charity work before seeking alternative employment.
Ruth wants to sue Keith in Negligence and to claim 12 months in lost income and punitive damages to punish him for his incompetence.
You are asked to advise Ruth as to her case for Negligence against Keith.
NB: Confine to your answer to discussion of Negligence and Keith’s personal liability. Confine your discussion of defences to that of contributory negligence. Do not consider any other area of law.
The Main Legal Issues
Can Ruth bring an action of negligence against the actions undertaken by Keith?
Is the defence of contributory negligence is applicable in the given scenario?
The Applicable Law
Negligence is a form of tort law. Under this law, a doer of the act is liable if it is proved that he owed duty of care to a certain person and he carried out the breach of the duty of care which was owed upon him and as a result of the breach of duty of care by the doer of the act an injury was caused to the injured.
The case law which is the back bone of the law of the negligence and which lead to the progress of this law of negligence is Donoghue v Stevenson in which the principals for holding a person negligence were explained. Moreover the case law of Donoghue v Stevenson states that every manufacturer has duty to provide proper product to his consumers. If any injury is caused due to his product the manufacturer can be held liable under law of negligence.
The various principals that have devolved which can hold a person liable under the law of negligence are delineated below:
Duty Of Care
Duty of care is that duty which is always with the doer of the act. It is such duty which states that the doer of the acts should act in a certain manner so his acts must not injure any third party. He is under an obligated duty to act in a proper manner so that no injury must be caused due to his acts. A person can only be said to have duty of care when the injured is neighbour of the wrongdoer and when the act is reasonably foreseeable. Both these concepts are explained herein.
Neighbourhood principal - This principal developed through the famous case law of Donoghue v Stevenson. This concept means that anybody who can be affected by the act of the doer of the act is termed as his neighbour. The act of the wrongdoer be such that it affects neighbour as held in Jaensch v Coffey The injured must also suffer injury due to act of the doer of act as held in the case law of Gala v Preston.
Reasonable foreseeability - The act of the injury must be reasonably foreseeable. If the act of the doer of the act is not foreseeable to cause any harm to the injured then the doer cannot be said to have the duty of care with him as the act which is the cause of injury must be reasonably foreseeable as in case the act which caused the injury is too remote then also the doer of the act is not liable under this law. Reasonable foreseeability means that a normal prudent person in like situation can sense that the injury can be caused by the act of doer of the act and is held in McLoughlin v O'Brian.
So in order to establish duty of care with the doer of the act it is necessary that the ingredients of neighborhood and reasonable foreseeability must be satisfied.
Breach Of Duty Of Care
A doer of the act is said to be in breach of duty of care when he does not take care of the duty obligated upon him. If the care taken by the doer of the act is insufficient or is less than what should had been taken in the like situation then he is said to had carried out breach of duty of care which he owes to the injured.
As per case law of Montgomery v Lanarkshire Health Board when the doer of the act does not take adequate care as he should have taken then he is said to had breached the duty assigned to him. Duty of care varies with situation as level of care in one situation may be sufficient but same level of care in another situation may not be sufficient. As level of care where the children are at risk of injury are high as compared to the care to be taken in case of major persons. The case law of Bolam v Friern Hospital Management Committee is based on the concept of level of duty of care varies with situation and people. Standard of care decides that as to whether a doer of act is liable for breach or not if care is proper as per a normal prudent person then it cannot be said that the doer had breached the duty obligated upon him.
There must be injury caused due to the breach of duty by the doer of the act. If no injury is caused then there is no breach or liability that can be fixed upon the doer of the act. As when duty of care is established upon the doer then same must had also been breached and apart from its breach there must be injury that must be caused to the injured due to such breach. If the injury is caused to the neighbour but it is not due to breach of the duty casted upon the doer of the act then also the doer is not liable under the law of negligence and is held in Chester v Waverley Corporation. The law of negligence only holds a doer liable when due to his acts an injury is there to the neighbour and is held in Annetts v Australian Stations Pty Ltd
There must be causation that must be satisfied causation means that the cause of the injury to the injured must be due to the act of the doer. The damage or injury caused to the injured must be such that it is reasonably foreseeable in nature then only the doer is liable under this law and is held in Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstedt”. In order to hold a doer of the act liable the proximity must also be there. The proximity between the injury and the act as the proximate effect of act is injury caused to the injured.
When all the three principals, that is, duty of care, breach of duty of care and injury to neighbor are satisfied then only the doer of act can be held liable under the law of negligence.
The doer of the act can safeguard himself from the liability under the law of negligence if he can prove that the injured himself assented to injury and got injured. This principal is known as Volunti non fit injuria. Also the doer can get his liability diminished if he can prove contributory negligence on the part of the injured. In case the injured himself contributes to his injury then in that case the liability of the doer of the act is diminished and he is only liable for the part liability as the injured is liable for the other part as he is also liable for his own injury.
In case of contributory negligence the liability is apportioned and divided among the doer of the act and the injured accordingly depending upon the fault of the parties and is held in Joslyn v Berryman  is based on this concept.
The law is now applied to the facts of the case
Application Of Law
The given case law is based on law of negligence.
It involves two people, that is, Keith and Ruth.
Ruth got injured in the given case and suffered loss of her earnings along with the injury. She wants to claim the damages for her injury from Keith under the law of negligence. But in order to prove negligence on part of Keith it is necessary to understand the law of negligence and also when can a person/defendant be fastened with liability under law of negligence and to whom the person is negligent. In order answer these problems the law of negligence is explained and applied to the given situation.
Keith was appointed by Ruth to replace his stairs as the same had been collapsed.
So, there is duty of care on Keith as Ruth is his neighbour because any actions taken by Leith will directly impact the interest of Ruth. Thus there is proximity amid the two and both are neighbours of each other. Also, any action taken by Keith can be reasonably foreseeable by him. He knows that if the stairs are not made properly then Ruth may face injuries. Thus, both Keith and Ruth are neighbours of each other and the impact of Keith action can be reasonably foreseeable by Keith. So, Keith is under the duty of care to provide protection to Ruth as rightly established under Donoghue V Stevenson case and Jaensch v Coffey case.
However, the duty is breached by Keith when he used a low quality chipboard instead of hardwood. He is aware that the stairs are totally rotten and the level of material that must be used for the repairing is hardwood. However, he did not act as per the desired level and uses chipboard which is below the level of care. So, there is complete breach of duty of care on the part of Keith. By applying the law in McLoughlin v O'Brian it is righty submitted that Keith in breach of duty of care.
Now, because of the cheap wood that is used by Keith which is not proper as he must have used hardwood for the repairing of the stairs there is complete breach of duty of care on the part of Keith. Because of this breach of duty of care on the part of Keith, Ruth has faced injury. She dislocated her knee. The damage that is suffered by Ruth is because of the breach of duty of care on the part of Keith, thus, there is causation amid the injury of Keith and the breach of duty of Keith. Also, the loss that is caused to Ruth can be reasonably anticipated by Keith. Thus, there is no remoteness of damages in the given situation.
So, damages are caused to Ruth because of the negligent action of Keith.
Thus, Keith is negligent and Ruth can sue Keith under the law of negligence.
But, Keith will only liable to pay for those damages that are caused to Ruth because of the breach of deity of care on the part of Keith. The losses that are incurred by Ruth when she was I hospital for two month will only be borne by Keith. The expenses that is incurred because she decided to leave her job will not be cater by Keith as the same are not because of breach of duty of care and also the damages are too remote to predict.
But, Keith can prove that the loss that is caused to Ruth is also contributed by her. This is because she was carrying dishes when she was using the stairs and which has made the vision of Ruth obscure. If Ruth’s vision was clear then certainly the damage could be avoided. So, Ruth’s negligence also resulted in her loss.
Hence, Keith can hold Ruth under contributory negligence and reduce his loss to the extent Ruth has contributed to her loss.
It is thus concluded that there is duty of care that is imposed upon Keith that he must repair the stairs of Ruth adequately. However, this duty of care is not aptly comply with by Keith. Thus there is breach of duty of care on the part of Keith, because of such breach damages are caused to Ruth. So, Ruth can sue Keith under the law of negligence.
But, Keith can rely on the defense of contributory negligence because Ruth’s actions also resulted in her own loss. So, the liability of Keith can be reduced proportionality to the extent Ruth was negligent and pay the rest of the damages to Ruth under the law of negligence.
Hocking, Barbara, Liability for Negligent Words (Federation Press, 1999)
Hodgson, Douglas, The Law of Intervening Causation, (Routledge, 2016)
Robertson, A & Tilbury, M, ‘Divergences in Private Law’ (Bloomsbury Publishing, 2016)
Annetts v Australian Stations Pty Ltd (2002)
Bolam v Friern Hospital Management Committee (1957).
Chester v Waverley Corporation (1939).
Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstedt” (1976)
Donoghue v Stevenson (1932).
Gala v Preston (1991).
Jaensch v Coffey .
Joslyn v Berryman 
Montgomery v Lanarkshire Health Board (2015).
McLoughlin v O'Brian 
Law vision, The law of negligence (2008), <https://www.lawvision.com.au/uploads/PDFs/Tort%20Law%20.pdf>.
Lee, Albert, Bolam’ to ‘Montgomery’ is result of evolutionary change of medical practice towards ‘patient-centred care’ <https://pmj.bmj.com/content/early/2016/07/27/postgradmedj-2016-134236.full>
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