BUS503 Principles Of Commercial Law

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Question:

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Include a coversheet with your name.

Keith, a handyman for the home, is listed in the Buderim Bugle as a carpenter. He has no trade qualifications.

Ruth is a homeowner. She works as a teacher’s assistant at a local elementary school.

Ruth arranges for Keith to replace the tread of her back stairs’ rotting timber wood.

Keith replaces her tread.

Keith uses left-over untreated chipboard to replace the hardwood.

The replaced tread eventually collapsed overnight after several nights in heavy rains.

Ruth climbs down the back stairs every morning to feed her birds.

Ruth brings with her many cleaning supplies and feeding dishes on the morning of the tread’s collapse.

Ruth’s vision is blurred by the items she carries and she does not notice that there is no tread.

She falls down the stairs and dislocates her knee.

Keith called Ruth at the hospital the following morning to tell her how sorry and how much he loved that she had been injured.

Ruth completely recovered after two months.

But she didn’t return to work.

She decided to resign and to spend 12 months at home to do unpaid charity work, before looking for another job.

Ruth would like to sue Keith in Negligence to obtain 12 months in lost income as well as punitive damages to punish his incompetence.

Ruth is asking you to help her with the case against Keith.

NB: Please limit your answers to discussions of Negligence or Keith’s personal liability.

You should limit your discussion about defenses to contributory negligence.

Do not look at any other area.

Answer:

The Main Legal Questions Ruth may bring an action against Keith for negligence.

Is contributory negligence possible in this case?

Applicable Law Negligence is a form tort law.

A person who did the act is liable if it’s proven that he owed a duty to another person, and that he breached that duty.

Donoghue V Stevenson is the case law that underpins the law of negligence. It explains the basic principles of negligence.

Donoghue, v Stevenson explains that every manufacturer must provide a quality product to their customers.

Law of negligence allows the manufacturer to be held responsible for injuries caused by his product.

Below are the various principals which could make someone liable under the law on negligence. Duty Of Care The duty that is always with a person who is performing the act is called the duty of care.

This is the duty that requires the person who does the acts to act in a particular way, so that he doesn’t inflict any third parties.

He is obligated to act in a professional manner, so that no injury can be caused by his acts.

Only when the victim is nearby, or the act can be reasonably predicted, is a person deemed to have the duty of care.

These concepts will be explained in detail.

Neighbourhood principle- This principle is based on the case Donoghue V Stevenson.

This principle states that any person who is affected or influenced by the act of the wrongdoer is his neighbour.

According to Jaensch v Coffey, the act must be so that it effects neighbour. As per Gala v Preston, the injured must also be affected by the act.

Reasonable foreseeability is required. The injury must have been reasonably predicted.

The doer of an act must be reasonably foreseeable to cause injury to the injured.

McLoughlin, O’Brian holds that reasonable foreseeability refers to the possibility that an ordinary prudent person in a similar situation could sense that the injury may be caused.

In order to establish duty, the doer must satisfy the ingredients of reasonable foreseeability as well as neighborhood.

Breach of Duty Of Care An act-giver is considered to be in breach if he fails or does not fulfill his obligation.

If the act’s author fails to take the necessary care or does not provide the same level of care, he is considered to have violated his duty to care for the injured.

Montgomery v Lanarkshire Health Board is an example of a case in which the act-giver fails to exercise the care he should have. He is then said to have violated the duty.

As the level of care is different depending on the situation, care may be adequate in one situation but not in another.

Children at greatest risk of injury require higher levels of care than adults.

Bolam v Friern Hospital Management Committee focuses on the notion of level of duty of care that varies depending upon situation and people.

Standard of care defines whether an act is breachable or not. Care that is consistent with a prudent person’s normal practice cannot make it clear that the doer has violated any duty.

Damage must result from the breach of duty.

If injury is not caused, there is no breach or liability which can be imposed upon the doer.

The duty of care that is imposed upon the doer must also have been breached.

If injury is caused by the neighbor but not because of breach of the duty placed upon him, then the doer is not responsible under the law. This was held in Chester V Waverley Corporation.

Annetts v Australian Stations Pty Ltd holds that negligence law only makes a doer responsible if he causes an injury to another person.

The doer must cause the injury or damage to the injured in a way that is reasonably predicable. This is what is being held in Caltex Oil (Australia), Pty Ltd. v The Dredge “Willemstedt”.

The act must also be done in close proximity to the victim.

The injury to the victim is considered the proximate result of the act if it occurs in close proximity to the injury.

If all the principals (duty of care, breach, and injury to neighbor) are satisfied, then only the one who did the act can be held accountable under the law.

If the injured person is able to prove that they were injured, then the acter can be exempted under the law.

Volunti Non Fit Injuria is the name of this principle.

The injured can also prove that the doer is negligent.

In this case, the liability of the doer is diminished. The injured is only liable in part for the injuries sustained.

This principle is applied to contributory negligence. The liability of the injured and the doer of an act is divided according to the fault of each party. Joslyn, v Berryman [2003] is based upon this concept.

Application Of Law: The following case law applies the law to the facts.

It involves Keith, and Ruth.

Ruth sustained injuries in the case and was also unable to work due to the injury.

She seeks to recover damages from Keith for her injuries under the law.

However, in order to prove Keith’s negligence it is necessary that you understand the law. Also, when can a person/defendant be made liable under the law. And to whom is the person negligent.

The law of negligence is applied to this situation in order to answer these questions.

Ruth appointed Keith to replace his staircases that were damaged.

As Ruth is Keith’s neighbor, Keith is responsible for Keith’s safety and well-being. Leith’s actions will impact Ruth.

There is a closeness among the two of them and they are both neighbors.

Keith’s actions are also reasonably predictable.

He also knows that Ruth might be hurt if the stairs do not go as planned.

Keith and Ruth are neighbors and Keith’s actions can be reasonably predicted.

Keith has the duty of care to protect Ruth as outlined in Jaensch V Coffey and Donoghue V Stevenson.

Keith chose to use a chipboard of low quality instead of hardwood, and this breached his duty.

He is well aware of the fact that the stairs are completely rotten, and that hardwood is the only material suitable for repairs.

But he didn’t act at the required level and used chipboard that is below the standard of care.

Keith is in complete breach his duty of care.

Keith is in breach of his duty of care if we apply McLoughlin v O’Brian.

Keith used cheap wood to repair the stairs, which is unprofessional.

Ruth was injured as a result.

She injured her knee.

Ruth suffered severe injuries as a result of Keith’s breach in duty of care.

Keith is able to reasonably foresee Ruth’s loss.

The situation is not likely to result in any undued damages.

Ruth suffers damages because of Keith’s negligence.

Keith’s negligent actions can be sued by Ruth under the law on negligence.

Keith will not be held responsible for Ruth’s injuries resulting from Keith’s breach of deity.

Keith will pay for Ruth’s two-month hospital stay.

Keith will not cover the expenses she incurred when Ruth quit her job.

Keith can prove that Ruth was also affected by the loss.

It is because she was carrying dishes up the stairs, which made Ruth’s vision blurred.

Ruth’s vision would be clear if the damage could have been avoided.

Ruth’s negligence led to her loss.

Keith can then hold Ruth accountable for contributing negligence and reduce his loss to Ruth’s extent.

Conclusion. It can be concluded that Keith is responsible for the maintenance of Ruth’s stairs.

Keith fails to fulfill this duty.

Ruth suffers damages as a result of Keith’s breach of the duty of care.

Ruth can sue Keith in negligence law.

Keith can also rely on the defense that Keith contributed to Ruth’s loss.

Keith’s liability can be reduced proportionally to Ruth’s negligence, and Ruth must pay any remaining damages.

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

McLoughlin [1983] Online Material Law vision. The law of negligence (2008).

Lee, Albert and Bolam’ to Montgomery’ are the result of evolution in medical practice towards ‘patient centred care’

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