Posted: June 30th, 2022

BUS503 Principles Of Commercial Law

Question:

Under the Assessment tab, electronically in black board

Include a cover sheet that includes your name.

Keith, a handyman at home, advertises in the Buderim Bugle that he is a certified carpenter. However, he does not have any trade qualifications.

Ruth is a homeowner who works as an aide to teachers at a local school.

Ruth contacts Keith to have a tread made of rotten timber replaced on her back stairs.

Keith replaces the tread.

He uses untreated chipboard instead of hardwood.

After several nights of heavy rains, the tread is finally completely dissolved overnight.

Ruth takes her caged birds to the back stairs each morning as she walks down the back staircase.

Ruth carries a lot of cleaning tools and dishes with her on the morning after the tread fell.

Ruth’s items obscure her vision, and she doesn’t notice the tread missing.

She tumbles down the stairs, dislocating her knee.

Keith called Ruth the next day and told her how sorry that he was for her injuries.

Ruth was fully healed after two months.

She did not resume paid employment.

After the incident, she resigned and decided that she would stay at home for 12 more months to volunteer her time in unpaid charitable work.

Ruth plans to sue Keith for Negligence. She wants to recover 12 months of lost income and punitive damages as a punishment for his incompetence.

Your task is to give advice to Ruth on her case against Keith for Negligence.

NB: Limit your discussion to Negligence and Keith’s personal responsibility.

Limit your discussion on defenses to the topic of contributory negligence.

You should not be examining any other area.

Answer:

The Main Legal Issues Ruth can bring an action for negligence against Keith’s actions.

In the above scenario, is the defense of contributory negligence applicable?

Applicable Law Negligence can be described as a type of tort law.

This law makes a person liable for the act if it is proven that they owed a duty of care to someone and that he breached the duty of care.

Donoghue and Stevenson are the case law that is the foundation of the law on negligence. In this case, the principles for holding someone negligent were explained.

Donoghue and Stevenson also state that every manufacturer is responsible for providing a proper product to its consumers.

The law of negligence can make the manufacturer liable for any injury caused by his product.

Below are the principals that can make a person liable for negligence. Duty of Care. The duty of care is the one that is always with the act-performer.

This duty states that the act-giver must behave in a specific way so as to not injure others.

He has an obligation to act in a responsible manner to ensure that his actions do not cause injury.

If the victim is a neighbor of the wrongdoer, and the act is reasonably predictable, a person cannot be considered to have a duty of care.

These concepts are discussed in this article.

Neighbourhood principle – This principal was developed by the well-known case Donoghue against Stevenson.

This means that anyone who is affected by the act or the result of it is called his neighbor.

As held in Jaensch V Coffey, the act of wrongdoer must affect neighbours. The injury must also be caused by the act of the perpetrator of the act as per the case law in Gala v Preston.

Reasonable foreseeability- The injury must be reasonably predictable.

The act of the victim must not be foreseeable.

McLoughlin and O’Brian held that reasonable foreseeability is the ability of a prudent person to see that injury could be caused by the act.

To establish duty of care for the act-doer, it is essential that both reasonable foreseeability and neighborhood are met.

Breach of Duty of Care The act’s doer is said to have breached his duty of care if he fails to fulfill the obligation.

The act’s doer is deemed to have breached the duty of care he owes the injured if the care he took is inadequate or less than the required.

According to Montgomery v Lanarkshire Health Board, if the act’s author fails to take the same care as he should, he is deemed to have breached his duty.

The level of care required in different situations is dependent on the situation. While one situation might be sufficient, another may require more.

The care required for children at high risk of injury is more than that which is necessary for majors.

Bolam v Friern Hospital Management Committee was based on the idea that the level of duty to care differs depending on situation and people.

The standard of care determines whether an act of doer is liable for breach. If care is reasonable as per normal prudent persons, then it cannot be said that he has breached the obligation imposed upon him.

Damage The act must have caused injury.

If there is no injury, then the breach of duty by the doer is not a breach and the liability cannot be brought against him.

If the duty of care has been placed on the doer, then that duty must have been breached. In addition to its breach, injury must have occurred to the victim as a result.

The law of negligence does not apply to injury to neighbours if the injury is not caused by breach of duty imposed upon the acter. This is ruled in Chester v Waverley Corporation.

An act of negligence makes a person liable if it causes injury to a neighbor. This is shown in Annetts V Australian Stations Pty Ltd.

The injury or damage done to the victim must be reasonably predictable. This law is found in Caltex Oil (Australia), Pty Ltd v The Dredge “Willemstedt”.

To hold someone responsible for the act, they must be within close proximity.

Injury to the injured is defined as the proximity between the injury or the act.

Only the actor of the act can be held responsible under the law on negligence if all three principals are met, namely duty of care, breach and injury to neighbour.

If the injured party can show that he consented to the injury, the doer of the act is exempted from liability under the law on negligence, he may be held harmless.

Volunti not fit injuria is the name for this principal.

If the injured party can show contributory negligence, the doer of the act can reduce his liability.

If the injury is caused by the victim, then the liability of both the victim and the doer is reduced. The injured is responsible for the remaining liability.

This concept is used in Joslyn [2003] to determine the extent of contributory negligence.

Now, the law will be applied to the facts of this case Application of Law. The case law is based upon law of negligence.

It involves Keith and Ruth.

Ruth was injured and lost her earnings as a result.

Ruth wants to sue Keith for damages due to her injuries.

To prove Keith’s negligence, it is important to know the law of negligent. It is also necessary to understand when a person/defendant can be held liable under the law of negligence. Who is the negligent person?

These questions can be answered by understanding the law of negligence and how it applies to the case.

Ruth appointed Keith to replace the stairs that had fallen.

Because Ruth is his neighbor, Keith has a duty to take care of Keith. Any actions Leith takes will have a direct impact on Ruth’s interest.

Both are neighbors of one another because there is closeness between them.

Keith’s actions can also be reasonably foreseen.

He is aware that Ruth could be injured if the stairs don’t get built correctly.

Keith and Ruth live next to each other, so Keith can reasonably foresee the consequences of Keith’s actions.

Keith has a duty to protect Ruth, as established in the Donoghue V Stevenson and Jaensch V Coffey cases.

Keith violated this duty when he used low-quality chipboard to replace hardwood.

He knows that the stairs were completely rotten and that hardwood is the best material for repair.

He did not take the stairs as he intended and instead used chipboard, which is lower in care.

Keith has committed a complete breach of his duty of care.

It is clear that Keith has breached his duty of care by applying McLoughlin v O’Brian.

Keith’s use of cheap wood for the repair of the stairs is a breach of his duty of care.

Ruth suffered injury as a result of Keith’s breach of duty.

She fractured her knee.

Ruth sustained the damage due to Keith’s breach of duty. There is therefore causation between Keith’s injury and Keith’s breach of duty.

Keith can also reasonably anticipate Ruth’s loss.

In this situation, there are no inexorable damages.

Ruth is therefore liable for damages resulting from Keith’s negligent actions.

Keith’s negligence makes Ruth liable and Ruth can sue Keith for negligence.

Keith is only responsible for Ruth’s damages if Keith breaches the deity of care.

Keith will be responsible for Ruth’s losses incurred while she was in hospital for two months.

Keith will not pay for Ruth’s expenses incurred as a result of her decision to quit her job.

Keith can show that Ruth’s loss was also her fault.

Because she was carrying dishes while she was using stairs, it has obscured Ruth’s vision.

It would have been possible to avoid the damage if Ruth’s vision had been clear.

Ruth’s negligence caused her loss.

Keith can therefore hold Ruth responsible for her negligence and reduce her loss in the amount Ruth contributed.

Conclusion This concludes that Keith has a duty of care and must fix the steps of Ruth properly.

Keith does not follow this duty of care.

Ruth is therefore able to sue Keith for breaching his duty of care.

Ruth can sue Keith for negligence.

Keith can use the defense of contributory negligence to defend herself because Ruth’s actions resulted also in her loss.

The liability of Keith can therefore be reduced in proportion to Ruth’s negligence and Ruth will have to pay the remainder of her damages under the law on negligence.

Caltex Oil (Australia), Pty Ltd V The Dredge “Willemstedt”, (1976). Donoghue, v Stevenson (1932).

McLoughlin and O’Brian [1983] Online Material Law Vision, The law on negligence (2008)

Lee, Albert, Bolam’s transformation to ‘Montgomery” is a result of an evolutionary shift in medical practice towards patient-centred care.