Basis of Any Liability in the Tort of Negligence - Assignment Example

Law of tort 1. Basis of any liability in the tort of negligence Introduction1 A tort is a civil wrong in which naïve party is permitted to assert compensation for loss suffered. A tort therefore is where the plaintiff suffered loss or injury and thus proceeds to seek redress or damages for loss suffered. Where a person who was negligence in his duty has caused injury to the plaintiff, he will deem to have a committed a tort2. The plaintiff therefore will sue for damage. The liability in tort of negligence would arise where the defendant is deem to have owed the plaintiff as well as the class of duty the following care; To guarantee that the deputy implant were exactly examined to establish if there is any significantly server impact of using the depuy implant as well as whether the defendant warn plaintiff as well as the class that implant carried a substantial risk of component loosening misalignment dislocation and also if the defendant carried a comprehensive examination of the depuy implant to establish the extent to which the risk linked with using the product is adverse as well as the product is supervised on the containing test as well as clinical test with long term follow up to establish the long term impact as well as threat of continued use of the product. The tort of negligence will be held accountable on Jonson and Jonson where the above basis of liability is proved beyond reasonable doubt that the defendant actually didn’t comply with the above duty of care to the plaintiff and the class of duty of care. The duty of care is therefore a commitment by Johnson and Jonson to get rid of acts or commission that is justifiably foreseeable to crate damage to the other party. A duty of care is owed where whenever one take on an act that is probable of injuring another party. From the case analysis of Jonson and Jonson, the basis of liability in the tort of negligence was made on the following element Damages It is apparent that the supply of depuy implant lead to damages to plaintiff since, many plaintiff suffered damages in terms of physical heath, injury as well as looses. Duty the result of negligence place reliance on whether the defendant (Johnson and Johnson) owed the duty of care to the plaintiff (Australian users of ASR) as well as due to this link, the defendant is obliged to act in specific in specific manner on plaintiff. In this regards, Johnson and Johnson is liable for negligence since, they breach the duty that they owe to plaintiff of supplying depuy implant that is not well examined and approved before selling to Australian users of ASR and thus they didn’t fulfill the duty of care and due diligence3. Proximate Cause This relates to the scope of responsibility on the side of Johnson and Johnson in a case of negligence. Johnson and Johnson are accountable for those injuries that they may have foreseen by way of their own action4. Where the defendant has caused damages outside the scope of their threat that the defendant might have foreseen, then the Australian users of ASR cannot prove that Jonson and Jonson were the proximate cause of their damages. in this regards, the injured users of the ASR implant may prove proximate cause by depicting that the defendant may have foreseen the harm that may have lead from the implanting the default depuy implant on users. Damages The plaintiff, in a negligence case should prove a legally recognized injury normally in a form of physical injury which is apparent in case of Jonson and Jonson depuy implant. It isn’t sufficient that Johnson and Johnson failed to exercise duty of care. The failure to exercise reasonable duty of care should lead to real damages to Australian users of ASR to whom Jonson and Jonson owed the reasonable duty of care. 2. How are the tort damages for those users calculated? In law, damages are award to the plaintiff back to the original place he/she was before the tort occurred. In tort, the claimant can’t recover anticipated loss but as the objective of tortuous damages is to put the plaintiff back to original position he/she was before the tort occurred, the claimant will as a result be in position to recover reliance loss. Damages in tort are subject to the principles of remoteness, causation as well as mitigation. In this regards, the court shall award no damages for non-economic loss unless the sternness of the non-0economic loss is at least 0.15 of the very extreme case. The utmost amount of damages that might be awarded for non-economic loss is $442,000 but the maximum value is to be award merely in stern cases. The plaintiff must determine the duty of care, a breach of the duty of care and damage is not sufficient to claim for compensation since, there should be some fundamental link between the breach of duty of care as well as the damage suffered.5 Damages can therefore be classified in the following category Compensatory damages: The nature of damages provides the claimant with the value that is essential to replace a loss or provide compensation to the plaintiff. The compensatory damage is issued merely to the limit of loss .this damages therefore are paid to the plaintiff to compensate for loss suffered as well as injury suffered. The damage are Awarded to plaintiff when there is a breach of contract as well as there is significant proof of the breach. In tort cases, compensatory damages may be awarded to individual loss as well as when there is loss to personal and property right. The measure of these damages should be realistic as well as tangible. Nevertheless, fixing a value as damages is not simple job when the damage is like emotional distress as well as pain and suffering. Future damage This sort of damage is permitted just when there is a justifiable uneasiness of loss or injury in the future due to negligent act of the defendant. Nevertheless, there must be an acceptable basis to award future damages. .Incidental damages This type of damage is awarded to the plaintiff when specific expenses that are subsidiary to the loss .the expense must incidental to the damage as well as must be justifiable. Negligent act leading to pre-economic loss The law provides that a plaintiff will recover damages for pure economic loss in which case, there is no individual injury or property damaged caused to the plaintiff asset. The plaintiff may claim damages for loss suffered to asset belonging to another party in which the plaintiff depict no legal interest. The claimant might recover for various dissimilar lose due to a party wrongful conduct. Compensatory damages can be awarded for the medical bills expense as well as treatment and cost of living with a disability, emotional distress and many more tangible loses. A jury will consider specific factors prior to awarding the damages in contract as well as tort actions. In tort, the actions, the age of the plaintiff, earning capability before the incident as well nature and extent of injury shall be taken into consideration in calculating the compensation for individual injuries in economical terms. Nevertheless, in contract as well as tort cases, the jury place of reliance on significant proof supplied by the plaintiff in the occasion of loss suffered due to injury caused by the negligence of the defendant or breach of legal duty of care. 3. Can the Australian users of ASR bring any Australian Consumer Law (ACL) cause of action? The Australian users of ASR cannot bring action against ACL for damages suffered from usage of ASR since, the law of ACL is very clear that the users of a product must do the following prior to using the product; the plaintiff shall take the supplier to court in which the court will award damages to cover the lose suffered or a make a complaint to consumer protection agency which might take action on behalf of the consumer. the ACL law states that; that the commonwealth minister is held accountable for controlling the ACL shall ensure that they publish the safety warning notice online concerning the product in which the notice stats that the goods is being examined to establish if its goods used in a reasonably foreseeable manner might injure a person. The commonwealth minister therefore only permits those goods that are in compliance with the safety standards. The ACL law provides that the supply should recall the goods where they are of the opinion that goods supplied will or may injure the interest party. Where the supplier is unwilling to recall the product, the minister for commonwealth share recall the product and as well instated legal action against them since, they are supplying unlawful product. In this regards, the supply will issue a notice to the minister of commonwealth by filling the form on product safety recall. The supplier shall inform the commonwealth minister within two days of realizing that the person suffered severe injuries. Illness or death linked to the use of supplied product. This applies to consumer goods misused. The claimant shall bring action again the ACL where the plaintiff prove beyond reasonable doubt that actually the ACL were aware of the default product in the market and proceed to award permit to supply the defect product to the market or where the ACL did actually foresee the impact of the product to the Australian users. As a result, the court shall therefore bring legal action against ACL6. From the above case analysis, it is apparent that ACL didn’t foresee the impact of the ASR to the users as well as the Jonson and Johnson did actually report to the minister of commonwealth of the product defect as well as action it had undertaken to compensate the plaintiff as well as provide justifiable approach to mitigate such risk. In this regards, the remedy available to the plaintiff is to seek redress in court for damages in order to ensure that loss suffered is settled and their life brought to the original financial situation. The only legal defense for suppliers and manufacture is that the suffered loss and injury since, the safety defect didn’t exist at the time of supplying good to the market as well as the state scientific as well as technical knowledge at the time of supplying the product didn’t enable the supplier to realize the defect or the goods were part of other goods as well as the defect just exist due to packaging or instruction errors. In this regards, the commonwealth shall be entitled for compensation for loss suffered by the plaintiff. Reference list Cackley, A. P. (2010). Consumer Safety: Better Information and Planning Would . London: Cingage learning. CCH Australia, Limited. (2012). Understanding Australian Consumer Credit Law. Sydney: Springer. Harlow, C. (2005). Understanding Tort Law - Page 27. Sydney: Springer. Justin Malbon, ‎. N. (2013). Consumer Law and Policy in Australia and New Zealand. Melbourne. Pamela Stewart, ‎. S. (2012). Australian Principles of Tort Law. Melbouirne. Read More