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The Law of Negligence

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Introduction

Negligence is the mistake of one party in exercising the appropriate or ethical ruled care. The negligence is considered or understood under the area of tort law which specially address the harm caused by failing to act in the form of carelessness. Present case study represents the law of negligence by focusing in its several elements. The case will evident that how a party or sufferer can sue for the damages to compensate the harm. In addition to this, five part model of law of negligence has been incorporated under which several aspects such as actual cause, proximate cause and damages as well as breach of duty are explained (Rai, Acharya and Dave, 2013). According to the case of Kieth, Ruth was at fault due to negligent action and accordingly he will be sued.

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The given case scenario reflects that legal action is taken by the party to pay for damages caused. However, the action was proved by showing the evidence and telling the whole story related to work of handyman. Apart from this, elements of action requiring proof have also been considered that whether the innocent party also took the reasonable care or not.

Analysis

The case scenario represents that Keith is home handyman who work as the carpenter and provide the his own advertisement as the qualified one. However, in reality he is not the qualified one. Ruth assigned or allotted a work related to replacing the rotting timber tread on the back stairs of the home. At this juncture, Keith provided services but during the same he used untreated chipboard which was left. After the expiry of certain weeks, tread got swelled because of heavy rains and collapsed overnight (Popa, 2017). Due to this issue Ruth got hurt as she fails to notice the missing tread. At this juncture, Keith required two months to get recovered and decided to stay at home for 12 months. It is considered as the loss of time and income too. Owing to this, Keith decided to sue Ruth for his negligent action and providing such bad services.

Elements Requiring Proof

The law of negligence is based on the circumstances which defines whether a party is actually harmed through losses or not. For this purpose, it is important to show the evidence. Under the given case evidence is shown through the swollen stairs and medical condition of the Ruth. This would better serve as the evidence so as to prove the case effectively. At the same time, information will be provided that Keith advertises that he is professional carpenter but reality is something else (Kritchevsky, 2010). However, Ruth could called him by seeing the advertisement only. For this purpose, it is essential to consider the proof and direct impact of the same on the situation of the Ruth. It is manifested that knowingly Keith uses chipboard instead of hardwood. This was the major reason behind the injury caused to the innocent party. Therefore, enough proof is available and accordingly remedy can be provided for the party not at risk or fault.

Elements and Application

Duty of care and Breach of duty

The most important element of negligence claim is duty of care under which failure of defendant to perform the duty of care is focused. It can be understood with the application of case such as Donoghue v. Stevenson [1932] stated the modern law of negligence. The case represents that Donoghue and her friend went to a cafe and ordered for ginger beer float. They started drinking the same and when she was pouring the remaining drink on ice-cream in glass then she noticed a snail in the bottle. At this juncture, she (Donoghue) suffered from nervous shock as well as gastro-enteritis (Schoenbaum and McClellan, 2012). They claimed to manufacturer of beer rather taking action against cafe. This care present the duty of care or breach of the same. Here, it was found that manufacturer did not notice the snail at the time of packing and impact of the same can be seen on customers. This shows less effective situation. Furthermore, it is important to ensure the duty of care so as to reduce the chance of manages caused to innocent party. Under the give case study, Ruth intention used the leftover chipboard for treads. It was not effective for the rainy season and accordingly Keith fall down from the stairs (Cane and Atiyah, 2013). However, Keith fulfilled the duty of care but it was the Ruth only he did not fulfill the duty of care while repairing the treads. Owing to this, he is liable for his act and must require the pay for the damages caused to Keith.

Issue/causation

According to the law of negligence a person not taking proper care and not fulling the responsibility in an effectual manner then innocent party has to suffer from damages. Such kind of situation reflects that injured person is entitled for the damages (Elements of a Negligence Case, 2017). The case reflects that Ruth asked Keith to replace timber tread on her back stairs but he did not fulfill the duty of care instead used the left over untreated chipboard which created issue during the rainy season. However, case reveals that Keith needed to perform his work perfectly and provide the right information related to his profession (Deakin, Johnston and Markesinis, 2012). However, he provided the detail in advertisement that he is professional carpenter. If he is professional or qualified then he could have done or provided very good services in accordance with the requirement of Ruth. This is showing that Ruth can effectively present the scenario that he suffered just because of negligence of Keith. Therefore, it is the only reason he fall down from stairs and suffered from several kind of losses. Owing to this, he has right to recover the losses and Keith will have to pay for the 12 months losses or income through which Ruth suffered.

Rule

The rule of negligence reflects that plaintiff must prove that action of defendant actually caused loss to him or her. It is also considered as the but-for causation which shows that but the injury did not take place due to fault of the plaintiff (Owen, 2014). On the other hand, defendant might take the advantage of but-for causation and proves like Ruth could have taken care before stepping ahead. It might serves as the fault of Ruth as he has vision-related issues. However, he was already having issue in the stairs owing to this he called Keith to fix everything. Therefore, the rule of case shows that Keith is liable for the negligent action and he will have to pay for the damages caused to another party (Popa, 2017).

Application

The regulation related to negligence are applied under the case because Ruth actually suffered from pain as well as loss just because of negligence of Keith. Owing to this, he must be paid for the damages caused so as to bring out appropriate results.

Conclusion

The conclusion of the case is showing that Ruth is entitled to pay for the damages just because of poor services provided by the Keith. He can easily sue the respective person (Raz, 2010). This would be effective to cater his requirement and provide justice in an effectual manner.

Considering legal remedies available to the injured parties

The remedies available under the case must fulfill the expectations of related parties and provide them equal right so as to effectively complete all necessary activities associated with the case. The first remedy is of one action rule under which facts and figures related to the case bring out the one action only. For this purpose, claimant ask for one kind of damages only and do not appeal in the court for another claim. Though, it is followed by exception where the first one represent the two rights are violated. Brunsden V Humphrey (1884) 14 QBD 141 provided right to plaintiff to claim for the each right as two distinct rights were violated. Another exception is of continuing tort wherein claimant has right to take out more than one action. However, majority of such cases occurred only in case of trespass and nuisance. Apart from this, third exception shed light on proof of damages only (Yoder, 2010).

Another remedy require to measure the losses where principle of restitutio intergrum is considered under which guide related to damages assessment is found to be most effective one. In such cases claimant will be compensated on the basis of fault of defendant. However, other resources such as welfare system and insurance can also be used for the compensation to claimant (Negligence Remedies, 2017). Owing to this, measurement of the damages is important and accordingly fault of parties like Keith will be assessed. Moreover, mitigation of loss is also one of the remedies shed light on duty of care at the end of claimant. He needs to take reasonable care the mitigate the loss and ensure the well being of all associated party under the contract. However, claimant is not entitled to earn the profit from the incident (De Mot, 2013). At this juncture, claimant do not have right to ask for the damages which could have been avoided by taking the reasonable care. Owing to this, claimant is also responsible for the reducing the chance of loss and ensure own safety. This can be understood with the help of given case scenario that Ruth could have taken proper care while going down stairs. However, he had issue in vision and suddenly fall down due to impact of rain on tread. Thus, he could also have taken the duty of care so as to effectively ensure own safety.

Apart from this, mitigation of risk can also be understood with the help of Marcroft V Scruttons [1954] 1 LLOYD'S REP 395 is based on the fact that plaintiff got hurt from the negligence of defendant but he denied to go to hospital which results in worsened injuries. Here, issue was faced related to assessment of damages and then case held that plaintiff did not mitigate the risk and it was his own mistake to increase the injury. Thus, losses which occurred due to his refusal to seek hospital cannot be covered by the defendant as it was his own mistake. However, as per the given case scenario, Ruth was sent the hospital directly and he tries best to mitigate the losses (Husak, 2011).

Decision - This case shows that Ruth took two months to get recovered from the injury caused but later the decision related to staying at home was his own. Owing to this, Keith has right to deny to pay for loss of income for 12 months. However, he is liable for payment of the injury caused to the party. Mitigation of risk applied under the case of Ruth and Keith and accordingly little benefits can be offered for the defendant also. Thus, number of remedies are available for the inured parties as well as defendant in case of negligence law. This aids to take the fruitful decision and meet the expectation of parties who are suffering from loss.

Conclusion

According to the aforementioned report, it can be concluded that negligence law is applied under the cases where party fails to take the reasonable care and intentional create the chances of loss to another party. Such kind of situation do affect the innocent party and influence that respective person to take the legal action against the defendant. However, compensation is provided only in the proportion of loss or damages only so as to protect the right of each party. This proves to be effective in deriving the valid suggestions or solution for both parties and resolve the conflict related situation. It can also be concluded that, reasonable care should be taken at both end otherwise compensation would be paid or considered accordingly. Therefore, negligent action will be considered unlawful and innocent party is entitled to get paid for any kind of damages occurred.

References

  • Cane, P. and Atiyah, P.S., 2013. Atiyah's accidents, compensation and the law. Cambridge University Press.
  • De Mot, J., 2013. Comparative versus contributory negligence: A comparison of the litigation expenditures. International Review of Law and Economics. 33. pp.54-61.
  • Deakin, S.F., Johnston, A. and Markesinis, B., 2012. Markesinis and Deakin's tort law. Oxford University Press.
  • Husak, D., 2011. Negligence, belief, blame and criminal liability: The special case of forgetting. Criminal Law and Philosophy. 5(2). pp.199-218.
  • Kritchevsky, B., 2010. Tort Law Is State Law: Why Courts Should Distinguish State and Federal Law in Negligence-Per-Se Litigation. Am. UL Rev. 60. p.71.
  • Owen, D., 2014. Products Liability Law, 3d (Hornbook Series). West Academic.
  • Popa, M., 2017. Righting wrongs: Lawyers' reflections on the amendments to the Wrongs Act 1958 (Vic) on medical negligence and mental harm claims. Torts Law Journal. 24(1). pp.64-82.
  • Rai, J.J., Acharya, R.V. and Dave, D., 2013. Knowledge and awareness among interns and residents about medical law and negligence in a medical college in Vadodara–A questionnaire study. Journal of Dental and Medical Sciences. 3(4). pp.32-8.
  • Raz, J., 2010. Responsibility and the negligence standard. Oxford Journal of Legal Studies, pp.1-18.
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