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.

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Mishu Talukder                                                                                                     13417272

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.

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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 posses.

Foreseeability test is a question of fact based on an objective test of whether a reasonable person would have foreseen the likelihood of injury. 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 ...

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