Choc Delux: Liability Under the Tort of Negligence - Essay Example

Choc Delux: Liability Under the Tort of Negligence Case Scenario Primary objective of this study is to analyze a ‘tort of negligence’ case related to Baking Company named as Choc Delux. As a wedding gift, Choc Delux provided the chocolates and wedding cakes for Kim and Kanyes wedding. Upon biting the first piece of the respective wedding cake being gifted by Choc Delux, Kim felt something hard in her mouth. The hard material was false finger nail which broke her front tooth and cuts her tongue. After discovering the truth of false finger nail, Kim was so shocked that she became violently sick. As a medical emergency, Kim had to make an emergency appointment with her dentist and she had to go through series of medical treatment to repair her. As a cost medical treatment, Kim had to spend £10,000. Board of Directors of Choc Delux are aware of the incident but they have little knowledge about their liability to Kim under the tort of negligence in English Law. From business ethics perspective, the case has significant amount of importance and challenges being faced by Board of Directors can be classified as ethical leadership challenge (Walton, 2008; Ward, 2005 and Ward, 2006). Discussion According to Harlow (2005), English law has specifically distinguished civil wrongs from criminal wrongs. According to English law, criminal wrongs can be enforced by the police but tort cannot be enforced by police. Linguistically, the term Tort has been derived Medieval Latin word “tortum” which means "twisted". In French English culture, ‘tort’ bears the meaning of "injury". Tort can be considered as civil action being enforced one person to another person. Generally, tort incidents are being prosecuted in the courtroom with the presence of judge or jury. In business context, harm cause to stakeholders due to negligence of business has also been covered under the tort section of English law (Plinio et al., 2010). Although, Tort law deals with all kind of civil wrongs but undoubtedly, tort of negligence is probably the most dynamic one. According to Sandel (2009), Martinez-Saenz (2009) and Skovira and Harman (2006), business organizations need to bear the ethical liability in case personal injury of stakeholders caused by activities of the respective business organization. The injured person can sue the business organization causing the damage on the ground of negligence. Negligence is relatively new tort that is being designed judiciary for providing legal measures to customers and any other stakeholders who are being injured due to intentional or unintentional wrongful activities of business. Now, in context to above case, clear evidences are available regarding physical injury of Kim caused by the false finger nail which was present in wedding cakes gifted by Choc Delux. According to English law for tort of negligence, claimant (Kim) needs to prove number decision points to help the court to find evidences of negligence showed by Choc Delux. Decision Point 1: In order to prove evidence of negligence, Claimant (Kim) will need to show that defendant (Choc Delux) owed the duty of care towards claimant (Harlow, 2005). In similar context, the case of ‘Donoghue versus Stevenson’ can be used as reference point. In that case, House of Lords gave verdict that in case of generally duty being assumed by Claimant, evidence of negligence cannot be proved. However, in this case, Claimant (Kim) is customer defendant (Choc Delux) and defendant gifted the cake to Claimant. Therefore, Choc Delux owed the duty of care towards Kim. Decision Point 2: After showing that Choc Delux owed her duty of care, Claimant (Kim) needs to prove that defendant (Choc Delux) is at fault or the defendant (Choc Delux) has breached its duty of care. In such context, first, the courts determine the standard of care that Choc Delux owed to Kim. Although, there is no written contract between Claimants (Kim) is customer defendant (Choc Delux) but breach of duty can be proved the court by using the clause of business ethics and quality standards (Marcy, Gentry and McKinnon, 2008). As a result, it is reasonable to think that the court will find evidence for breach of duty of care by defendant (Choc Delux). Decision Point 3: At this phase, Claimant (Kim) needs show that breach of duty by defendant (Choc Delux) caused the damage (physical injury and monetary expense of £10,000).The court will use ‘but-for’ test to determine the validity of claim by the Claimant (Kim) (Harlow, 2005). Court will ask the question, “but for the Choc Delux’s (defendant)’ tort, would Kim (Claimant) have suffered the loss. In such case, Kim can use the doctor’s diagnosis, medical reports to show that damage was caused by the defendant (Choc Delux). In extreme case, chemical tests can be conducted to show that ‘false finger nail’ was part of the wedding cake when it was delivered by defendant (Choc Delux). Decision Point 4: finally, damage suffered by Claimant (Kim) must be part of the damage that can be recovered under English law for tort of negligence. Kim’s case is not loss of chance to avoid damage (physical injury and monetary expense of £10,000). Therefore, it will not be difficult for Kim to pass the 4th decision point (Lewis, Morris and Oliphant, 2006). All the four decision points are in favour of Claimant (Kim) and these criteria can be fulfilled by Kim in the court. Therefore, under the tort of negligence in English Law, Board of Directors of Choc Delux is liable to pay full compensation to Claimant (Kim) (Harlow, 2005). The full compensation should be able to put Kim into the position when tort had not occurred to her. In this case, Claimant (Kim) has suffered both pecuniary loss (expenses for medical care) and Non-pecuniary loss (pain caused due to breaking of her front tooth and cutting her tongue). If physical injury of Claimant (Kim) gets continued after the trial, court will revise the amount of compensation. In similar context, in the case of ‘Lim versus Camden & Islington Health Authority’, the court had also revised the amount of compensation due to continuation of injury of Claimant. On the basis of above discussion, it is being advised that Board of Directors of Choc Delux is liable to compensate Kim for both pecuniary loss and Non-pecuniary loss. Amount of the compensation can be settled in the court. Reference List Harlow, C., 2005. Understanding tort law. London: Sweet & Maxwell. Lewis, R., Morris, A. and Oliphant, K., 2006. Tort Personal Injury Claims Statistics: Is there a Compensation Culture in the United Kingdom. JPI Law, 87, p 97. Marcy, R. T., Gentry, W. A., & McKinnon, R., 2008. 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