Defences Contributory

Lucy is the owner of a guesthouse in the Blue Mountains, overlooking a beautiful valley. Although the views are lovely, the buildings are very exposed to the wind from the valley, which is extremely strong in winter and spring. Lucy approaches King, a local builder who also owns a hardware shop in the nearest town. She explains the problem she is having with the wind. King suggests she purchase the pine shutters he currently has on special. He advises her that these shutters would be perfect for her and should not need replacing for at least ten years.

Lucy places an order for 20 shutters. King supplies the shutters to Lucy, who decides to save money by getting her boyfriend Malcolm to install them. The installation instructions are contained in a booklet supplied with the shutters. On the back of the instruction booklet, in very small writing, appear the words: 'These shutters are for decoration only and should not be installed in high wind areas. ' Malcolm reads this clause but does not tell Lucy about it. After the shutters have been in place for several months, the pine begins to split.

Lucy notices that some of the shutters are damaged and do not look very secure but she does nothing about it. On a particularly windy evening, one of the damaged shutters is blown from the window. It hits Kim, a guest staying in the house who was in the garden smoking a cigarette, and also hits John, a member of the public, who was taking a short cut across the garden when returning from a bush walk. Kim suffers severe cuts and a broken arm and develops a phobia about wind, claiming he can no longer go outside his home and will never be able to work again.

John suffers head injuries and is off work for six months. News of this incident spreads through the local district and as a result Lucy's reservations fall by half. Lucy immediately arranges for all of the shutters to be removed and replaced with heavy duty shutters at great cost. Kim and John have each told Lucy they will sue her and King for their medical expenses and lost wages. Discuss whether Lucy is liable in negligence to Kim and John, and discuss whether Lucy can claim any compensation in negligence or in deceit from King, giving full legal reasons for your answers.

Is Lucy liable in Negligence to Kim and John? The tort of negligence is the omission to do something which a reasonable person would do or doing something which a reasonable person would not do. In certain situation the law imposes a duty on a person to act with care towards others. If this duty exists and there is failure to act carefully and another person suffers loss, then the tort of negligence is committed. In order to succeed in claim for negligence the plaintiff must prove all three elements: * If there is a duty of care flowing from defendant to plaintiff?

* Has there been a breach of the duty of care? * Has breach of duty of care caused the damages? If there is a duty of care flowing from defendant to plaintiff? In the case of Donoghue v Stevenson [1932] AC 562 Lord Atkin described the duty of care using the principal of neighbour. "Lord Atkin stated that you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". The neighbour is some one who is foreseen to be directly affected by the act of others.

Reasonable person is someone of normal intelligence, credited with such perception of the surrounding circumstances and such knowledge of other pertinent matters as a reasonable person would posses1. Foreseeability test is a question of fact based on an objective test of whether a reasonable person would have foreseen the likelihood of injury2. To succeed in establishing a duty of care the plaintiff must prove that the defendant ought to have foreseen that negligence on part of the defendant could lead to the plaintiff being injured.

It has to shown that a reasonable person in the position of the defendant would have foreseen that the situation amounted to a real risk. In this case it reasonable foreseeable to Lucy that if the wrong type of shutters were used then it could become harmful and could directly affect anyone within the premises. Occupiers, because of their control over their premises, owe a duty of care (which in some cases is non-delegable) to anyone (even trespassers) who come on their property to ensure that they are not exposed to danger and risk of injury3.

Occupiers of premises owe a duty of care to people coming on to their premises to ensure the premises are not dangerous. This form of liability which can be non-delegable in certain circumstances, arises because of the occupier's control over the premises, and includes anyone who enters the premises, including guests, those who enter by express or implied permission (e. g. visitors) and those who are uninvited, such as trespassers4. Has there been a breach of the duty of care? The defendant breaches a duty of care by failing to satisfy a reasonable standard of care. In effect the court asks the following questions:

* Was the risk of injury to the plaintiff reasonably foreseeable? As it was proved earlier it is reasonable for a person to foresee the likelihood of injury being caused by not installing heavy duty shutters * Did the defendant fail to do what a reasonable person ought to have done to prevent this foreseeable risk? Yes, Lucy failed to install heavy duty shutters. Therefore, putting her self and others involved with the guesthouse in danger. Has breach of duty of care caused the damages? The plaintiff must show that some loss or damages was suffered as a result of the defendant's breach of duty.

In this case Kim suffers form severe cuts, a broken arm and has developed a phobia to wind, while John suffers from head injuries and is off work for six weeks. Both have suffered as a direct result the breach of duty owed by Lucy. In negligence, causation determines not only the extent of the damages recoverable, but also whether the action succeeds at all. There is no cause of action unless the plaintiff proves that the damages suffered were caused by the defendants' breach. The general test used by the courts is the 'but for' test. Here the assumption is that the defendant's fault is a cause of the plaintiff's harm.

Therefore the harm would not have occurred to the plaintiff 'but for' the defendant's actions5. Defences Contributory negligence must be pleaded by the defendant and the burden of proof rests with them. It has to be established that plaintiff failed to take reasonable care for their own safety or for the safety of their property and that this failure to take care contributed to the accident which caused the damage. Result It is clear that Lucy is negligent to Kim and John for her breach of duty of care but, to what extent? She may claim contributory negligence which will then place the blame on King or even Malcolm.