Contributory Negligence: Historical And Comparative System Essay

Question:

Discuss about the Contributory Negligence for Historical and Comparative System.

Answer:

Introduction

A tort can be stated as a wrong done, which attracts civil liability. Negligence is considered as a tort law in Australia and it depicts that a wrong has been committed, which attracts civil liability. Negligence denotes a breach of duty of care, which individual one, owed to individual two, and causes loss or injury to the individual two. Once a case of negligence is successfully established in the court, the individual two could apply for damages. The provisions regarding negligence are not only contained in the common law, but also under the Civil Liability Act, of each state in Australia. However, when a case of negligence is made, often the individual one can cite the contributory negligence of individual two, to get the damages reduced [Legal Services Commission: (Downloaded 13th May 2017)].

In the following parts, the case of Ruth has been analyzed to consider if a case Keith was actually indulged in the tort of negligence. Further, the contributory negligence of Ruth against Keith would also be evaluated, and the impact of the same over the negligence of Keith would be elucidated. Lastly, a summary and the possible relief available to Ruth would be highlighted.

Negligence, as stated above, is the duty of care, which has been owed by a person towards another, due to the work undertaken by then, which has a possibility of resulting in a loss or injury, and due to the breach of duty of care, the possibility of injury is materialized. Though, for establishing that a case of negligence has actually been made, it needs to have certain essential elements, which include a duty of care, this duty to be breached, resulting damages, direct causation, foreseeability and loss not being too remote (Statsky, WP, 2011, P. 126).

Duty of Care

The first requirement for making a case of negligence is establishing that a duty of care was indeed present. The case of Snail in the Bottle case, which is otherwise known as Donoghue v Stevenson [1932] UKHL 100, a dead snail was found inside the ginger beer bottle manufactured by the plaintiff, as a result of which, Donoghue fell very sick. When she sued the manufacturer for negligence, he claimed that he did not owe a duty of care towards her, as she consumed the beer at the caf?. However, the court had a different view, as per which, Stevenson owed a duty of care towards its consumers, by the reasons of being the manufacturer of the ginger beer bottle. And hence, this case became a leading example of the duty of care owed by the manufacturer towards their consumers (Latimer P, 2012, P. 1146).

The duty of care can also be judged by using the threefold test given in the case of Caparo Industries plc v Dickman [1990] 2 AC 605, 618 by the Court of Appeal. In this case, the court was of the view that for establishing that a duty of care was indeed present, there is a need to show that the parties and the injury had proximity between them, the risk of harm was reasonably foreseeable, and that the imposed penalty would be just, fair and reasonable (Lunney & Oliphant, 2013, P. 442).

In the given case study, Keith had undertaken the work from Ruth, relating to certain modification in her home. Hence, he had the duty of taking care, when he discharged his services. As per Donoghue v Stevenson, he owed a duty of care towards his customer. Further, as per the threefold test, the risk of harm was foreseeable when leftover material was used, instead of hardwood. There was proximity and imposed penalty would be just in this case, hence, a duty of care was clearly present.

Breach of Duty

After presence of duty of care, it has to be established that this particular duty, was breached by the party which owed this duty. In Vaughan v Menlove (1837) 132 ER 490 (CP), the defendant had been warned for a long time, regarding the possibility of a fire in the haystack, due to the improper ventilation in the building in which the hay was kept. But he chose to ignore it. So, when the haystack was caught on fire, the defendant was held to have breached his duty of care [Commonwealth Legal Information Institute: (Downloaded 13th May 2017)].

Another matter which highlights the breach of duty of care was established in the case of Paris v Stepney Borough Council [1951] AC 367. In this case, the Council did not make available the protective goggles to Paris, who was blind in one eye. Whilst he was working on a rusted bolt, a part of it broke off and hit is good eye, which left him completely blind. It was held that the council had breached their duty of care towards Paris [E-Law Resources: www.e-lawresources.co.uk/Paris-v-Stepney.php (Downloaded 13th May 2017)].

In the given case study, Keith had the duty of taking proper care in his work, but he failed to do so. Even though he was provided with the proper material, he did not use the same, which led to Ruth’s injury. So, a breach of duty was present in this case.

For establishing negligence, the loss has to be foreseeable in a reasonable manner. In Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078, it was held by the court that the loss was not reasonably foreseeable, and so, the plaintiff could not be awarded any damages [Swarb: (Downloaded 13th May 2017)]. In Wyong Shire Council v. Shirt (1980) 146 CLR 4, it was held that foreseeability of a loss had to be judged on the basis of perception of a reasonable individual [Jade: (Downloaded 13th May 2017)]. So, if a reasonable individual would have perceived that there was foreseeability in the loss, the same would give rise to negligence.

In the given case study, the use of leftovers, instead of proper material, in the view of a reasonable person, would give rise to a foreseeability of loss, incurred by Ruth. And so, she could make a claim for negligence.

Remoteness

The next step in making a successful claim for negligence is to show that the losses were not too remote and instead, were substantial in nature. If the loss is found to be too remote, damages are not awarded even if there is a presence of other elements of negligence. In Wagon Mound Case, or as is fully known as the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2, the court held that the loss was too remote, and so, no relief was awarded [H2O: (Downloaded 13th May 2017)].

In the given case study, the loss was not at all remote. This is evident from the fact that she fell down, which resulted in her knee being dislocated. Moreover, her recovery took two months, for which she remained unemployed. This denotes that she had to bear substantial losses as a result of the negligence of Keith.

The next requirement is to establish that the loss or injury occurred directly due to the breach of duty of care of the individual one. In Donoghue v Stevenson, for instance, the dead snail in bottle was the direct reason for Donoghue being sick. And due to the direct causation, the damages were awarded to her.

Section 5D of the Civil Liability Act 2002 (NSW) provides that for negligence, it is crucial that there was a factual causation. In other words, the incurred negligence has to be a necessary condition for the occurrence of harm [NSW Legislation: (Downloaded 13th May 2017)].

In the given case study, the use of piece of left over untreated chipboard, which got wet due to the rain, and rose up, which ultimately led to Ruth’s crash, shows a direct causation between Ruth’s injury and the actions of Keith. Hence, based on this element, a claim of negligence would be successful.

The last step which is required for establishing a case of negligence is to show that loss or injury did take place for damages to be claimed. Without a loss or harm, a claim for damages, would not hold. In Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428, the court brought forward a “but for test” to establish if a claim for damages would be upheld or not. This test states that in case it can be established that the injury or loss would have occurred, even in absence of the breach of duty of care on part of the defendant, the damages cannot be awarded [E-Law Resources: (Downloaded 13th May 2017)].

In the given case study, the “but for test” needs to be applied to establish if damages should indeed be awarded to Ruth. Had proper material been used by Keith in his work, the wood would not have swollen and eventually not collapsed. So, on the basis of this test, the damages have to be awarded to Ruth.

Negligent Misstatement

When an individual makes a false or untrue statement, on which the other person relies, which results in a loss to the reliance making party, a claim for negligent misstatement can be made. In Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, it was held that reliance is a crucial element to establish negligent misstatement [Swarb: (Downloaded 13th May 2017)].

In the given case study, Keith made a false statement that he was a qualified carpenter, when in reality he had no trade qualifications. Relying upon his statement, Ruth undertook her services. And so, she can claim damages for the negligent misstatement made by Keith, which resulted in her being injured.

Once a case of negligence is made successfully, the individual can apply for damages. The House of Lords in the case of Addis v Gramophone [1909] AC 488, held that the purpose of the damages is to put the individual in such a place, where such an individual would have been, had the incident of negligence not occurred [E-Law Resources: (Downloaded 13th May 2017)].

The damages claimed in this case by Ruth are twelve months in lost income, along with the punitive damages to punish Keith. However, she resigned voluntarily, and the negligence had no role in this resignation. Her motives were to serve the charity, which was not related to her injury. So, a claim can only be made for the punitive damages, and for the two months recovery period for which she could not return to employment. This would put her in a position as she was before the negligence incident. Along with this, the damages can be claimed for the negligent misstatement made by Keith.

Contributory Negligence

One of the defenses which are available in cases of negligence is the contributory negligence. Under the principle of contributory negligence, an injured or harmed individual makes a contribution towards the injury which they receive. When such happens, the damages which are awarded to the individual owing to the negligence of another are reduced in proportion to the contributory negligence of the individual (Dongen EV, 2014, P. 8). Davies was held to have contributed towards his injuries in the case of Davies v Swan Motor Co [1909] AC 488, and hence, the amount of damages awarded to him was reduced proportionately [E-Law Resources: (Downloaded 13th May 2017)]. In the matter of Raad v KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2016] NSW 2016 888, as the plaintiff had contributed towards her injuries, the damages awarded to her were reduced by 10% [Lexology: (Downloaded 13th May 2017)].

In the given case study, Ruth was carrying a lot of stuff when she was going down the stairs. Moreover, her vision was obscured due to the stuff she was holding as a result of which, she failed to notice the missing tread. This led to her fall down from the stairs. As she was not careful going down the stairs, she would be guilty of contributory negligence. And the damages awarded to her would be reduced by the percentage of her contributory negligence, as decided upon by the competent court.

Conclusion

To summarize this discussion, Keith had been negligent in this case, due to the presence of crucial elements of negligence. Though, Ruth could only be awarded the punitive damages and damages for the loss of two months of her employment and not for the period in which she deliberately chose not to work. Moreover, the amount of damages would be reduced by the magnitude of her contributory negligence.

Bibliography

Dongen EV. Contributory Negligence: A Historical and Comparative Study, (Boston: Brill Nijhoff, 2014)

Latimer, P. Australian Business Law 2012, 31st ed, (Sydney, NSW: CCH Australia Limited, 2012)

Lunney, M., & Oliphant, K. Tort Law: Text and Materials, 5th ed, (Oxford: Oxford University Press, 2013)

Statsky, WP. Essentials of Torts, 3rd ed, (New York: Cengage Learning, 2011)

Commonwealth Legal Information Institute: (Downloaded 13th May 2017)

E-Law Resources: www.e-lawresources.co.uk/Paris-v-Stepney.php (Downloaded 13th May 2017)

Jade: (Downloaded 13th May 2017)

H2O: (Downloaded 13th May 2017)

NSW Legislation: (Downloaded 13th May 2017)

E-Law Resources: (Downloaded 13th May 2017)

Swarb: (Downloaded 13th May 2017)

E-Law Resources: (Downloaded 13th May 2017)

E-Law Resources: (Downloaded 13th May 2017)

Lexology: (Downloaded 13th May 2017)

Legal Services Commission: (Downloaded 13th May 2017)

Swarb: (Downloaded 13th May 2017)

Addis v Gramophone [1909] AC 488

Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428

Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078

Caparo Industries plc v Dickman [1990] 2 AC 605, 618

Davies v Swan Motor Co [1949] 2 KB 291

Donoghue v Stevenson [1932] UKHL 100

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2

Paris v Stepney Borough Council [1951] AC 367

Raad v KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust [2016] NSW 2016 888

Vaughan v Menlove (1837) 132 ER 490 (CP)

Wyong Shire Council v. Shirt (1980) 146 CLR 4

Civil Liability Act 2002 (NSW)

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