Law and its application
As the world developed and so is the technology and laws. One of such law is the law of tort which has been designed to protect an injured and compensate him for the misdeeds of the wrongdoer.
Law of negligence is one of the most important wings of the law of tort. This law states that a person who is indulging in any act must take due care so that his act might not injure or does cause any kind of damage to any other person. If a person who is acting has an apprehension that his act might cause loss to any other person and he still prefers to pursue with such act, then, in such situation the person who suffers loss because of the acts done by one wrongdoer has every right to get damages under law. A person who carries out the acts carelessly and causes injury to the injured is known as wrongdoer and the person who suffers the loss is called the injured party. (Francis, Peter, & Mark, 2007)
As per law of negligence, a wrongdoer is liable once it is proved that there is duty of care casted upon him and he without complying with its requirements indulge into acts which results in the breach of duty of care and because of such breach, an injury is caused to the injured person. If the injury is caused to the person due to the acts of the wrongdoer then the injured person can very well recover damages from the wrongdoer for the loss that is caused or for the injury that is suffered by him. (Beever, 2007)
Law of negligence had thus been designed to protect the injured person against the loss and injury caused due to careless acts of the wrongdoer. The three ingredients that are necessary to establish negligence are:
Duty Of Care
Duty of care is the prime and the foremost ingredient to hold the wrongdoer liable under the law of negligence. The duty of care means, the duty fixed upon the wrongdoer so as not to act in such a way so that any kind of injury is caused to the injured person and is held in (Natcraft Pty Ltd & Anor v Det Norske Veritas & Anor , 2002). No act or omission of the wrongdoer should be such so as it can injure the third person. A wrongdoer must watch his actions and must carry his acts with abundant caution and in case he believes that his acts can cause loss or injury to any third party then he should take proper protection while performing such acts or should avoid those acts. As per law of negligence the wrongdoer is bounded by a legal duty to act in a proper manner and in case he does not obeys the duty as per the law of negligence then he is liable under law of negligence. (J?rgen & Wolfgang, 2006)
A wrongdoer is said to have duty of care with him when few principals are satisfied. When the principle of Neighborhood and the principle of reasonable forseeability are not satisfied, then, in that case the duty of care cannot be said to be in existence upon the wrongdoer and he cannot be held liable as per the law of negligence.
A neighbor in law of negligence does not imply a neighbor as per its dictionary meaning, but, it is much wider under the law of negligence. A neighbor is a person who can be affected by the acts of the wrongdoer. He is a person who is in close proximity to the wrongdoer and the acts of the wrongdoer will affect him.
The law of negligence was developed by the landmark case law of (Donoghue v Stevenson , 1932) which lead to evolution of the neighborhood principal. The lord Atkin in the landmark case has stated that a person who is in closeness to the wrongdoer and is likely to get injured by the act of the wrongdoer is neighbor of the wrongdoer be it stranger or anybody.
A reasonably foreseeable person can easily assess that the acts of a wrongdoer are dangerous for certain person, then, that person is termed as a neighbor as per law of negligence. A neighbor is affected by the acts of the wrongdoer so it is the duty of the wrongdoer to carry out his acts properly without any injury to the neighbor and in case the person who is falling under the definition of neighbor as per law of negligence is injured by the acts of the wrongdoer, then such neighbor can claim compensation as per law of negligence and is held in (Albrighton v Royal Prince Alfred Hospital, 1980). (Cameron, Ian, & Malcolm, 2007)
The wrongdoer is only liable in case of injury to the neighbor if the act which was the cause of injury to the neighbor was reasonably foreseeable by a prudent person. If the act which is the cause of injury to the third person is not reasonably foreseeable then the wrongdoer cannot be held liable under the law of negligence and is rightly held in (Rogers v Whitaker, 1992). If the impact of the acts or omission by the wrongdoer is unpredictable by a common prudent person then wrongdoer is protected against the damage that is caused and is said to be too remote. (Cameron, Ian, & Malcolm, 2007)
Breach of Duty Of Care
When the duty of care is said to be with wrongdoer, then, the first step to prove the negligence on his part is comply with but in order to be held the wrongdoer negligent it is also necessary that he should had breached the duty of care which is casted upon him.
The care which the wrongdoer should take is different in different situations. The care taken by the wrongdoer must be adequate i.e. he must take appropriate care that should have been taken by an ordinary prudent person. The care varies with situation as a level of care at one instance may be adequate but the same level of care in other situation may not be adequate. The level of care should be high in situations where the magnitude of damage due to the act of the wrongdoer, that may sustain is high and is rightly held in (Bolam v Friern Hospital Management Committee, 1957). (Kim, Bonnie, & Sheryl, 2014)
when the first two steps i.e. duty of care with the wrongdoer and its breached are satisfied, still the wrongdoer is not liable if the damage is not sustained by the third party as the resultant damage due to the breach of duty of care by a wrongdoer is necessary for holding a person negligent under law of negligence and is held in (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or "Wagon Mound (No. 1), 1961).
There must be causation between the act and the injury caused to the injured. There must be causation and the same must be satisfied in order to hold the wrongdoer negligent i.e. the damage must be due to the breach of duty of care by the wrongdoer. There must be a direct link between the damage caused to the injured and the negligent act of the wrongdoer. In case the cause of injury of the injured is not the act of the wrongdoer then the wrongdoer cannot be held liable as the act of the wrongdoer and the injury caused to the injured must correspond with each other and is held in (Mount Isa Mines Ltd v Pusey , 1971). (Andy & Douglas, 2013)
The damage caused due to the acts of the wrongdoer must not be too remote as it must be reasonably foreseeable. In case the damage caused is too remote then the wrongdoer cannot be held liable under the law of negligence. In case the damage or the injury caused is predictable and foreseeable by an ordinary prudent person in like situation then only the wrongdoer is liable otherwise not. (Andy & Douglas, 2013)
In case any of the ingredient i.e. the duty of care, its breach and resultant damage is absent then the wrongdoer cannot be held liable under the law of negligence. All the three principal ingredients of the law of negligence must be satisfied in order to hold wrongdoer negligence.
Defense – A Safeguard From Being NegligentContributory negligence
There are defenses that can be taken by the wrongdoer in order to safeguard himself from being held negligent and one of those is Contributory Negligence
In case if the injury that is caused to the injured, there is his own fault, then, in such case the damage to be paid by the wrongdoer to the injured decreases proportionately as he himself contributed to his injury by being contributory negligent. In such cases the damage amount is apportioned proportionately among the wrongdoer and the injured accordingly. But in order to get the benefit of concept of contributory negligence the wrongdoer must prove the negligence on the part of the injured and if he is able to prove the same on part of injured then also the contribution made to the injury of the injured by himself is assessed and the damages to be paid by the wrongdoer are decided accordingly and is held in (Joslyn v Berryman, 2003). (Douglas, 2016)
Now, the law is applied.
Keith is a carpenter who was appointed with the duty to fix the collapsed staircase of Ruth.
Keith has a duty to construct the stairs in such manner so that no injury is caused to Ruth because of non performance of his careful actions. The duty of care obligation is imposed upon Keith because the acts of Keith will directly affect the interest of Ruth, because if the stairs are not fixed properly the Ruth may face injuries and thus Ruth and Keith becomes neighbors of each other. Also, the impact that may be faced by Ruth if the stairs are not fixed by Keith adequately is also reasonably predictable by Keith. Thus, there is presence of reasonable foreseeability also.
So, Keith has duty of acre upon him.
But, thus duty of care is not performed by Keith as per the required standards because he used a left over piece of wood instead of a proper hardwood and because of such use the stairs collapsed. So, the duty if not performed by Keith appropriately resulting in breach of duty of care.
Because of the breach, Ruth suffered injuries, that is, she dislocated her knee. She suffered injuries when the stairs collapse and because of which she fell from the same.
Thus, the duty is violated by Keith who has caused damage to Ruth, so, Keith is negligent in his actions.
But, Keith can prove that when the injury is sustained by Ruth at that time she was not able to view the stairs properly as she was carrying dishes which place hindrance in her visions. It is her own negligence which has also contributed to her loss. So, Keith can prove contributory negligence on the part of Ruth and thus can reduce his part of damages which is equivalent to Ruth’s own contribution.
But, Keith is not accountable for the loss that is caused to Ruth when she resigned to choose her alternative employment as such loss is not because of Keith negligence. Keith will only pay for her two months loss of income and medical expenses.
Keith is held to be negligent in his actions as he did not cater his duty of care which resulted in loss to Ruth. But, Keith can take the defense of contributory negligence on the part of Ruth and thus reduce his liability.
Albrighton v Royal Prince Alfred Hospital (1980).
Andy, G., & Douglas, F. (2013). Business Law 2014. Pearson Higher Education AU.
Beever, A. (2007). Rediscovering the Law of Negligence. Bloomsbury Publishing.
Bolam v Friern Hospital Management Committee (1957).
Cameron, S., Ian, K., & Malcolm, P. (2007). The Australian Medico-legal Handbook. Elsevier Australia.
Donoghue v Stevenson (1932).
Douglas, H. (2016). The Law of Intervening Causation. Routledge.
Francis, T., Peter, C., & Mark, L. (2007). The Law of Torts in Australia. Oxford University Press.
Joslyn v Berryman (2003).
J?rgen, B., & Wolfgang, W. (2006). Third-Party Liability of Classification Societies: A Comparative Perspective. Springer Science & Business Media.
Kim, A., Bonnie, B., & Sheryl, L. (2014). Ethics and Law for Australian Nurses. Cambridge University Press.
Mount Isa Mines Ltd v Pusey (1971).
Natcraft Pty Ltd & Anor v Det Norske Veritas & Anor (2002).
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or "Wagon Mound (No. 1) (1961).
Rogers v Whitaker (1992).