Law of Tort in Business and Marketing - Case Study Example

Law of Tort in Business and Marketing According to law of land an act which causes harm to a determinate person whether intentionally or not then this act is referred to as a tort, basically, it is a civil wrong that does not depend on contracts, and its remedy is normally unliquidated damages which are usually imposed by the court, therefore it comes the existence of a law of tort. Under this law of tort we see that duties are imposed by law such as we should not be negligent of others, therefore this duty is owed to the community as a whole. Therefore, in this type of law their must be an infringement on the civil right of an individual, through which the wrong doer has to compensate the injured party in the community, this injured party is therefore supposed to obtain his compensation by taking the action through which his legal rights are violated. 1 So in this case of Mike and Grace, who work at an Australian post’s mail sorting centre, there existed some negligence as part of the law of tort, negligence is normally defined as the breach of a duty caused by an omission to do something which a realistic man would do or would not do, simply it means the neglect of the use of ordinary care and skills by which the plaintiff suffers an injury. To claim an action in this law the plaintiff must therefore prove that the defendant owed him a duty of care, that there has been a breach of the legal duty and also he has to prove that he has suffered an injury either to his person or to his property, without the three points, then the plaintiff is not entitled to succeed in his action. Therefore in this mail sorting case we find that various elements of the tort of negligence were practiced these include: Duty of Care Under this law it is said that if a man is near to another or near to a property of another, then there is a duty that lies on him not to do anything that may cause a personal injury to the other person or his properties. 2 Therefore one should take a reasonable care to avoid acts that he can reasonably foresee would injure the other person. In this case we see that mike and grace who received a strange bulging parcel that they suspected to be containing a dangerous or illegal matter, took no duty of ensuring safety by storing the parcel in an unlocked cupboard even though they suspected that the parcel contained an illegal matter and through their negligence we find that the snakes escaped from the box and went to the streets where by it caused panic and distress among the people near the centre, whereby some of them were really injured, therefore if only Mike and Grace took the duty of ensuring the safety of their neighbours and lock the put the parcel in a locked cupboard then such injuries could not have happened. This case is also well described in the case of; Donoghue v Stevenson, 1923. Whereby, a man bought a bottle of ginger-beer from a retail shop for his girlfriend. The manufacturer had bottled the substance in opaque bottle, so that its contents could not be seen. When the girl poured the contents in the glass, it contained the decomposed remains of a snail. The girl was ill in consequence and sued the manufacturer for damage in tort. It was held the defendant was liable as he owed her duty of care to ensure that the bottle should contain objectionable matter as it did. Therefore we see that Mike and Grace should be held liable as they had the duty of care to ensure that the parcel contained no harmful matter. Inevitable accident In this case we see that Max who was a pedestrian was distressed and that he suffered a heart attack, in law we see that an inevitable accident is one which can not be prevented by the exercise of an ordinary care, caution or skill. In this case we see that the escaping of the snakes from the box could not be prevented since Mike and Grace could not prevent them from escaping and also it was not on their notice that the snakes had escaped, also they were not able to prevent the distress of and the suffering of Max since they were not aware that the snakes were on the street in this case, it is seen that they could have informed the pedestrians that there were snakes on the streets and the pedestrians could have escaped from the risks that the snakes could have caused. This case is also presented in a case of Stanley v Powell, 1891 where P, who was a member of a shooting party, fired at a pheasant. A pallet hit a tree and rebounded into the eye of the plaintiff who was engaged in carrying cartridges and game for the party. It was held that P was not liable as the incident was purely an inevitable accident incapable of being prevented by ordinary care, skill or diligence. 3 Therefore for the case of Mike and Grace, they are not liable for Maxis’ distress and heart attack since the incident was an inevitable accident. Contributory negligence Sandra who was also a pedestrian was only bitten when she tried to retrieve one of the snakes in this event we see that she practiced a contributory negligence, under this the law considers an act of an act of the injured party which may have contributed to the injuries he received. Therefore a person who had his own negligence contributed to the injuries he received could not maintain an action against another in respect of the injury. Therefore Sandra has no right to take action against the Australia post since she contributed to the snake bites where she was bitten when she tried to retrieve the snakes. 4 Standard of Care Sandra has a right to maintain an action against the doctor who negligently administered the wrong drug to her which proved ineffective against the venom and she became paralyzed as she was severely affected by the bites, we see that this doctor who was in attendance did not carry out the standard of care, under the law a standard of care is used to determine whether a person has been negligent or not , therefore it is expected of a person who has acquired the skills to do the act which he undertakes, so if a person has undertaken a duty which requires extra-ordinary care or skills, he is bound to use great care in order to avoid the foreseeable harm to a person or properties. For example if an individual holds himself out as being specially competent or qualified therefore he is under duty to show the care and skills usually found in the career. In this case Sandra expected to receive better treatment from these said qualified doctor, but he ended up giving Sandra wrong drugs that proved ineffective that Sandra’s situation worsened and she became paralyzed therefore, she has a right to take action against the doctor who is liable for not carrying out his standard of care. Public Nuisance - In a situation where the snakes escaped from the box at the Australia Post we are told that the whole area was evacuated for 24hours. Many retailers are said to have suffered a substantial loss of profits due to the closure of their businesses. Nuisance is defined as an unlawful interference with a persons use or enjoyment of properties or some rights in connection with the property therefore it is doing something that inconveniences other people from carrying out their duties. 5 Then the public nuisance is the act which interferes with the enjoyment of a right with which all members of the community are entitled to, it is a crime actionable by law. It therefore does not create a civil action for any person, unless he proves a particular injury to himself beyond that which is suffered by the rest of the public. in this case we see that the area was evacuated for 24hours in which there was the closure of businesses which definitely rendered substantial loss to the retailers, under this the retailers are seen to have practiced the defence of necessity whereby in law the welfare of the society is said to be supreme, therefore in some cases damages may be caused deliberately to individuals may not give rise to any legal action if the act was intended to prevent a an evil action. This is also presented in this case where we see that the retailers had to accept the losses that could have risen during the day by just deciding to close down their businesses so that they can protect themselves and the consumers who were not aware of the presence of the snakes in the streets, in this case the law provides no remedy for such an action since it was acted upon protection. This is also presented well in the following cases: Dewey v White, 1827, where W pulled down a house in order to prevent fire spreading to other property. D, the owner of the adjoining house which was damaged did not succeed in an action for damages, for it was held that the act of defendant W was motivated by necessity. 6 Cope vs. Sharpe, 1912, C was the land owner and he let the shooting rights to S over a part of his land. S went to C’s land and made a fire break in order to prevent the spread of the fire to his part of the land where his pheasants were sitting C sued him for trespass. It was held that S was not liable because when he trespassed on C’s land it was necessary due to threat of the fire. So in this case of snakes the retailers can not sue the post since it was necessary for them to close the shops due to the threats of the snakes. On the other hand the Australia post may use various defences available in the law of tort to defend himself, therefore his advised to use either of the following: Volenti Non Fit Injuria- this defence means that, a person cannot claim for the damages that result from a risk that run voluntarily in this case it is provided that when a person engages himself in an event that he knows the dangers and risks involved in it but he undertakes the action like in this case it is obvious that Sandra knew that trying to retrieve a snake will definitely lead to being bitten by the same snake, but she went ahead and retrieved the snake which as the end result it bit her, so she has no right to claim an action against the Austria post. The post can defend itself by proving that, Sandra knew the dangers involved, appreciated it in all the respects and assume it willingly. This is also well explained in the case of Khimji v Tonga Mombassa Transport Co LTD, 1962 where the plaintiff was a passenger in the bus that belonged to the defendant company. The driver of the bus was pressed to cross the swollen river which he was unwilling to do. But he subsequently agreed to cross the river. The bus slipped into the deep water and the dead body of the plaintiff was found the following day. It was held by the court that the plaintiff knew the risk appreciated it and assumed it voluntarily and so the defence of Volenti non fit Injuria rightly applied. 7 Res Ipsa Loquitur, this is where an individual or the defendant succeeds in proving that he has not been negligent or offers a reasonable explanation of how the accident could have happened without his negligence. This rule provides three conditions that should be adhered to, the first one is that there must be a reasonable evidence of negligence on the part of the defendant, secondly that the operation is under the control of the defendant when the accident took place and lastly that the accident is such as in the ordinary course of things does not happen if those who have the duty properly use it. In this case we see that the employees of the Austria post carried an action of informing the police on the incidence of the parcel whereby, the police delayed to come and check what was in the parcel and therefore, this shows that the employees were not negligent on the fact that they didn’t lock the cupboard. This can be used to show that they were not negligent. Damnum Sine Injuria this means that in a situation where an actual or substantial loss is caused without any infringement on the legal rights, the law does not provide any remedy and the loss lies on the person not on the one who caused it. This rule provides that where an act is lawful or done without any negligence and in the exercise of the legal right some damage is caused to another is not actionable in the court therefore in the case of the Austria post where its employees were trying to carry out a legal action and in the exercise there are damages that accrued, we see that while they conducted the police officers they had to take the parcel and put it in a cupboard although it was unlocked, smoke of the snakes were said to have escaped from the box and went to the streets where they caused damages to the pedestrians and the retailers, therefore under this case the court does not hold the case actionable, therefore Austria can not be held liable. 8 Damages Sandra can claim her damages from the doctor who breached the contract between him and Sandra, in this case we are told that, he administered to her a wrong drug that was ineffective in this case there was an implied condition as to quality or fitness, in law we are told that a seller generally speaking is not under duty to disclose the defects attaching to the goods which he sells. Therefore the buyer must look at his own interest under this rule there is an exception referred to as caveat emptor which states that where the buyer makes known to the seller the particular purpose for which he is buying the goods, where the seller specializes in the sale of the goods then there exists an implied condition that the goods shall be of reasonably fit for the purpose. Therefore in the case of Sandra we see that there existed an implied condition that the drugs that she was given will be fit to work against the venom, we see that the doctor new the purpose for the buying of the drugs and therefore he specialized in the selling of the drug which later on proved to be ineffective, therefore Sandra has a right to repudiate the contract and claim for damages caused by the wrong drugs that was administered to her. This case is also well explained in a case of Baldry v Marshal, 1925 where B told a motor dealer, that he wanted to buy a car which would be comfortable for touring purposes. Marshall recommended to him a “Bugatti” car. B relied on his expert advice and bought a Bugatti car. When the car was delivered, it was neither comfortable nor suitable for touring purposes. B sued for the return of the purchase money. It was held that he could succeed. 9 References: Emanuel, S. L. (2004): Fundamental of Business Law, 4th Edition, New York, Educational Publisher Jertz, A. and Miller L. R, (2004): Fundamentals of Business Law, 3rd Edition, New York, Macmillan Publisher Read More