Hair Care Limited: A under Law of Torts - Case Study Example

Hair Care Limited: A Case study under Law of Torts Introduction: The primary function of tort law is the compensation for loss. Torts are civil wrongs recognized by law as grounds for a law suit. These wrongs result in an injury or harm constituting the basis for a claim by the injured party. While some torts are also crimes punishable with imprisonment the primary aim of tort law is to provide relief for the damages incurred and deter others from committing the same harms. The injured person may sue for an injunction to prevent the continuation of the tortuous conduct or for monetary damages. "The types of damages the injured party may recover include loss of earning capacity, pain and suffering and reasonable medical expenses. They include both present and future expected losses." (Cornell Law School) The torts may be classified as specific torts pertaining to trespass, assault, battery, negligence, products liability and intentional infliction of emotional distress. In the instant case study of Hair Care Limited this paper envisages analyzing the legal position with respect to the claim for damages by Joan, the claimant against the Hair colorant manufacturers Hair Care Limited and Barber, the proprietor of a hair dressing salon for the personal injury suffered by her by using the colourant manufactured by Hair Care Limited. The paper also discusses the liability of the hair dresser Barber towards compensating Joan for her injury and suffering. Tort and Negligence: The instant case is because of the negligence of Barber, the hairdresser to advise the beautician or the customer about the potential danger of the usage of the colourant and the requirement that a patch test is to be conducted before use. Although, he was having knowledge of the potential injury he didn't care to advise the people concerned. Hence it is a case to be claimed by the plaintiff Joan under Tort arising out of negligence. The following is the discussion on some of the issues concerned with negligence and tort. Negligence is the most important tort in terms of cases and money involved. There are torts like trespass, nuisance etc which doesn't involve negligence. However, negligence as well as other torts has in common the remedy of financial compensation for the loss that has been caused or order for restitution. Negligence may be defined as breach of a legal duty to take care, resulting in damage undesired by defendant to the plaintiff. Tortuous liability arises from the breach of the duty primarily fixed by law. Such duty is to care. In order to have negligence there: Must be a duty of care Breach of that duty Result in damage Breach of a Duty: "In many cases no duty of care has to be investigated because they are obvious. The question is therefore: is there s a breach of that duty. It is obviously a question of standards. The idea of reasonableness is linked with how people react." ("Jus" d'orange) Blyth v Birmingham Waterworks 1856: Negligence is the omission to do something which the reasonable man would do or not do something which the reasonable man would not do. Other factors in accessing that reasonable care are: Probability of the thing occurring Seriousness of the event at risk if it did happen Practicality and precautions Consideration of the social value of the defendant's activities Product Liability and Manufacturing Risks: A manufacturing defect will attract liability. In Grant v. Australian Knitting Mills (1935) Manufacturer of underwear out of wool. One of the products to clean wool is sulfate. Through an error, the garment bought by plaintiff was not washed off from sulfate. He was sensitive & washed them but not sufficient which resulted in huge dermatological reaction which almost killed him. Proceedings were brought against both the seller and the manufacturer. The manufacturer's defense was that it was the first instance they ever had any complaint and hence they should not be blamed. On the contrary they were really careful. The Privy Council said: one explanation is that an employee was negligent then it attracts vicarious liability. If an employee has not been negligent then there is a fault in the manufacturing system. Then the manufacture is liable for having a faulty system of manufacturing. The defendant was held liable for a manufacturing defect. Warnings and Instructions for Use: There is no way of absolutely guaranteeing complete safety. Many products are marketed with warnings and precautions. But what is the extent to which the manufacturer should be explicit in warning is a question that is highly debatable. It is settled that the manufacturer has to warn not too much and not too less. He should say what is necessary to keep the consumer reasonably safe. In the case of Heils v. Hedges (1951) there was a sale of pork by a butcher and the customer cuts her pork but didn't cook, since was not told to do so. For damages the customer sues the butcher. It was held that one has to be told of things that are not so obvious. Hence the customer loses. In the case of Devilez v. Boots Pure Drug Co. (1962), Devilez bought a corn remover from Boots. Devilez was taking a bath and the corn remover spilled on his genital parts when coming out. Went to bed and was dissolved in the morning; The court held that the plaintiff should have been warned as it was not obvious that this might have happened. Any average Englishman was less intelligent than any other Englishman and hence should have been warned. Devilez won the claim. From this discussion the rule in product liability is settled as to say as much to be "reasonably safe" that will result in taking reasonable care. Holmes -v- Ashford [1950] 2 All ER 76 1950 CA Tucker LJ This is a case under torts brought by the consumer for negligence. Facts of the case: "A hairdresser treated the plaintiff's hair with a dye, and as a result the plaintiff contracted dermatitis. The dye came to the hairdresser in labelled bottles together with instructions. Both the labels and the brochure warned that the dye might be dangerous to certain skins, and recommended a test before it was used". (Swarb.co.uk) The hairdresser had read the labels and the brochure and was aware of the danger, but he made no test and did not warn the plaintiff. The plaintiff claimed damages against the hairdresser and the manufacturers. Both the manufacturer and the hairdresser were held responsible. The manufacturers appealed against the decision of the lower court. The Appeal court held that a manufacturer who puts a dangerous article on the market must take reasonable steps to prevent any person coming into contact with it from being injured, but it was not necessary in every case that precautions should be taken to ensure that the ultimate recipient of the article was warned of the danger; the manufacturers had given the hairdresser a warning which was sufficient to intimate to him the potential danger of the dye, and it was not necessary that they should have warned the plaintiff; and, therefore, they had discharged the duty which was on them. In the judgment on this case Tucker LJ observed: There is the proposition that a manufacturer who puts a dangerous article on the market must take reasonable precautions to ensure that the ultimate recipient is warned of the danger.. Every person who puts on the market a dangerous article must take reasonable steps in all the circumstances. This is not an article the nature of which can be ascertained by intermediate examination, and, therefore, it is an article which requires some warning. The question in this case is: Was the warning attached to this bottle a sufficient and adequate warning to be given in cases where the material is supplied to hairdressers for use on their customers The presumption is that the material is supplied to reasonable people, and the first defendant has said that he read the warning, appreciated what it meant, and ignored it. Therefore, it was impossible to hold that the warning which was, in fact, given in the present case was insufficient and held that the manufacturer was not liable. Applying these principles in the case of Joan to claim for injury caused to her by the use of the colourant manufactured by Hair Care Limited, She has to prefer a claim only against Barber, the hairdresser who was negligent in warning her against the potential injury and the necessity to do a skin test prior to applying the colourant. This is on the basis of the settled law in the case of Holmes v Ashford (1950). The following points are worth noting: Hair Care Limited initially supplied samples to Barber, the hairdresser for trying the product with the express understanding that Barber will order for the bulk if the customers are satisfied with the performance of the samples After satisfactory using of the samples with three different customers only Barber ordered the bulk supply. The bulk was supplied by Hair Care Limited in 5-litre drums which were labeled with the product name and with the warning about the potential harm that the product may cause to the skin and that a skin test needs to be performed before applying the product. There was no necessity for the company Hair Care Limited to warn the ultimate user being Joan about the product and the test to be conducted before using it. With the above acts, the manufacturer is clearly exonerated from his liability on the product as they have taken all reasonable steps necessary to warn the user against the harm the product may cause and the way to protect one from such eventuality. The manufacturer has every ground to put forth the argument that they have taken all the reasonable steps and since the product is being supplied to the hairdresser, they can presume that the product is being supplied to a reasonable person having knowledge of the product and the potential harm it may cause if used without testing. Hence if Joan proceeds against the manufacturer her claim may not be sustained. The only remedy for her is to sue the hairdresser for financial damages for the personal injury caused to her by the negligence of the hairdresser. The hair dresser is liable for negligence and the negligence of the hairdresser is more than proved because of the following points: The hair dresser because of his profession is supposed to have a reasonable knowledge of the after effects of using chemical products on the person of any customer. Even if he did not have the knowledge the manufacturer Hair Care Limited has apprised him of the consequences of using the product without testing by way of the warning placed on the 5 litre drums in which the bulk was supplied to him. Having removed the contents from the bigger container to the smaller containers he should have as well put the warning about the product on the small containers also. Even when he has not put the warning on the small containers by reason of his knowledge about the harmful effects of the colourant he should have advised the stylist about the precaution she has to take while applying the colourant on any customer. He also had a similar obligation by reason of his knowledge about the test to be conducted to advise the customer to take a skin test before using the colourant. In all the above occasions where Barber, the hair dresser had the opportunity to forewarn the customer did not do what is expected of a man of reasonable knowledge and hence he is negligent in not warning the customer about the harmful effect of the colourant and the necessity to undertake a skin test before using the product. Hence Joan can very well proceed against the hair dresser pressing her claim of tort against the negligence of the hair dresser to warn her before the use of the colourant and the hair dresser will be held liable for damages for his negligence. As such the hair dresser does not have any defense to his advantage in this case due to the settled law in the case of Holmes v Ashford (1950). Word Count: 2068 words References: 1. Cornell Law School Tort Law: An Overview http://www.law.cornell.edu/wex/index.php/Tort 2. "Jus" d'orange Tort and Negligence http://members.fortunecity.com/jusdo/id66.htm 3. Swarb.co.uk Negligence - 1930 - 1959 http://www.swarb.co.uk/lisc/Neglg19301959.php Read More