Development of Duty of Negligence since Donoghue v Stevenson - Assignment Example

Business law Development of Duty of Negligence since Donoghue v Stevenson In a tort of negligence the person who owes a duty of care to another person is held liable in case of breach of that duty and as a result the person he or she owed duty care suffers damages incurs loss (Steele, 2014, p. 124). Before the appellate court’s decision in the case of Donoghue v Stevenson [1932] UKHL 100, there was no standard duty of care in negligence and the court recognized the duty of care owned by one person to another depending on particular circumstances (Elliott & Quinn, 2007). The most common situations where the court recognized the duty of care included bailments, dangerous goods, road accidents, etc. (Harpwood, 2009). However, in the case if Donoghue v Stevenson the court established significant principles to guide in the determination of the duty of care person owed another and the range of duty of care a person can owe another. In a contractual relationship, one party owes the other a duty of care whose breach can result to legal consequences on the party in breach (Harpwood, 2009). However, in tortuous liability a person can be guilt of negligence for the person or persons are not contract parties if only there is evidence that the person in breach owed the other duty of care and they breached that duty which consequently caused the person they owned duty of care recoverable damages or loss (Steele, 2014). When determining whether the duty of care existed between the parties or whether it did not exist depends on type of claimant, type defendant, the nature of damage caused to the claimant and the nature of conduct of the defendant (Harpwood, 2009, P. 229). In Donoghue v Stevenson [1932] UKHL 100, the plaintiff had been bought a bottle of ginger-beer by her friend from a retailer. As she was about to clear the content of the beer, she discovered a decomposing snail in the bottle. The sight of the decomposing snail was nauseating so that it caused the appellant to suffer from shock and severe gastro-enteritis. The bottle was opaque such that neither the trader nor the customer could realize the content in the bottle unless by emptying the content of the bottle. She was unable to sue the seller either under breach of contract or for negligence, but she could sue the manufacturer of the ginger-beer. The manufacturer had a duty to ensure the goods sold to the consumers are of the right quality and provide efficient system that would detect any fault in the products. When issuing the verdict the court developed the “neighbor principle” whereby the defendant will be held responsible for their acts or omissions causing injuries to persons they ought to have put into consideration for protection. The proximity or foreseeability of the damages should be evident in the case in order for the claimant to raise successful legal claim against the defendant. Since the case if Donoghue v Stevenson the ‘neighbour principle’ rule has been applied on other cases to establish the existence of duty of care owned by one party to the other, determine the breach of duty of care and the consequent damages or loss resulting from the breach of the duty of care. In the case of Anns v Merton London Borough Council [1978] AC 728, the court issued that in addition to neighbour principle when determining the duty of care owed by defendant the court must determine whether there was any policy guideline prohibiting or limiting the duty of care or specifying the class of people to who the defendant owed duty of care. Therefore, the issue of policy consideration when assessing the duty of care the defendant owes the plaintiff would limit the neighbour principle to the people whose liability was foreseeable (Elliott & Quinn, 2007). However, the test of policy factor consideration extends the duty of care to all persons apart from those whose liabilities are prohibited in the policy. The implication is that the liability does not have to be foreseeable in order for neighbour principle to apply. In Caparo Industries plc v Dickman [1990] 2 AC 605, the court imposed a three test rule whereby the defendant could be held to have breached their duty of care if the liability was foreseeable and proximate. The court’s decision was to ensure the duty of care imposed on the defendant is impartial, just and realistic. Therefore, the proximity rule requires the court to establish a direct relationship between the defendant’s actions and injuries suffered by the plaintiff. The rule of Donoghue v Stevenson provided an opportunity for expansion of the negligence to ensure the liability is fair, just and reasonable to compensate the wronged person and impose appropriate liability on the defendant. Question 2: Contract for sale of goods 1. Legal advice to Fernando The parties to a contract are bound by the promises or terms of the agreement and have absolute liability to perform the contract in accordance to the terms agreed upon during the contract formation (Harpwood, 2009). In case one party fails to implement the terms of the agreement the other party is at liberty to terminate the agreement and sue the defaulting party either for damages or specific performance. However, if due to unforeseen circumstances one party is unable to execute his or her part of the agreement because the issues that have arisen that have rendered the contract impossible to execute then both parties should terminate the contract as frustrated contract (Elliott & Quinn, 2007). In the case of Taylor v Caldwell [1863] EWHC QB J1, the plaintiff had rented a music hall owned by the defendant for £100 a day for four days where they were to perform a concert. The music hall burnt down before the day of the event and plaintiff sued the defendant for failing to perform the contract according to the agreed terms. However, the presiding judge declared the contract was unenforceable because there was implied or express condition because the execution of contract depended on the existence of music hall of which neither of the parties was responsible for its destruction. Therefore, in the case between Fernando and Bill Bright the contract was impossible to implement because Bill Bright could not fly from New Orleans in America to London following the closure of the airport on 3rd September since he was expected to sing at Fernando’s theatre on 4th September. Because the circumstances leading to his inability to fly to New Orleans were beyond his scope, the contract was unenforceable, and Fernando cannot sue Bill for the loss incurred. Since the objective of contract law is to protect parties against economic loss caused by the other party the loss that Fernando suffered was not because of Bill’s voluntary action. Furthermore, Bill did not gain anything by failing to attend, but he also lost the earning he expected to get in the event of performance of the contract. Fernando cannot succeed in the legal suit against Bill for failure to perform the contract. a). Bills legal position in relation to the case A contract for the sale of goods involves and an offer by the buyer to buy the goods and acceptance by the seller when they accept the payment (McKendrick, 2014, p.18). The money paid by the buyer and transfer of ownership of goods accounts for the consideration between the buyer and the seller. The elements of the contract of sale of goods determines the risk of ownership of goods and the procedure the court will follow to decide an issue involving the sale of goods (McKendrick, 2014). In the case between Albert and Bill it is apparent the Albert made an ‘invitation to treat’ by expressing his intention to sell tyres for vintage cars at a determined price and to be delivered at a fixed period. Bill placed the offer to buy and gave consideration of money equivalent to the value of the goods. However, Albert decided to sell the tyres to another buyer who offered a higher price. In the case of Foley v Classique Coaches Ltd. [1934] 2 KB 1, the contract exists between parties who have agreed on the price of goods. Therefore, Bill should sue Albert for breach of contract since they had formed a contract the moment he called him to place an offer and deposited money into the seller’s bank account. The bank was seller’s agent thus immediately the money was deposited into his account it was assumed the seller had received the money. Since the tyres are described as “extremely rare vintage tyres” the remedies for breach of contract may be “specific performance” whereby the court may order Albert to deliver similar tyres at the agreed value (McKendrick, 2014, p.182). Also, the seller may have to pay the buyer for the damages due to disturbances they caused him. b). Bills legal position in relation to minor party In order for parties to form a legal agreement they should observe all elements of a contract including intention to establish a legal relationship, an offer to buy goods by the buyer, acceptance to sell by the trader, consideration, both parties must have capacity to form a contract and the purpose for the contract must be legal (McKendrick, 2014). In case the agreement does not fulfil all the requirements law renders its void. In the case between Bill and Albert the contract fails to meet legal requirements in case Albert is a minor. However, since the contract was not for sale of goods of necessity Bill can sue Albert to recover his money or wait for Albert to attain 18 years and validate the contract in case Albert will not have voided it as a minor. The contract law protects both parties to ensure none gains at the expense of the other. Question3 i). Differences between civil law and criminal law The laws are categories into various classes to depending on where it is applied, source, remedies, etc. according to Hess et al. (2014), civil laws deal with conflicts between individuals and organization with compensation required as the remedy while criminal laws deals with offense against the state and awards penalty or punishment as the legal remedy. In civil cases, the petition is made by an individual while under criminal laws the state is responsible for filing charges against the offender. The judge issues verdict as to whether the defendant is responsible or not responsible in civil cases while in criminal cases the jury determines whether the accused is guilty or innocent (Hess et al., 2014). After ruling, the wronged party can get monetary compensation for damages or injunction in nuisance while in criminal cases the guilty persons is sentenced to imprisonment, capital punishment or fines. Proceedings in civil cases are prosecution by indictment or summons while in criminal cases the legal proceeding is through pleadings, attorney general, prosecutor or state representatives. The jury must arrive at a unanimous agreement in a criminal case while in civil cases the judges may have varying opinion (Hess et al., 2014). ii. Occupier’s liability The law offers protection to persons who visit premises owned or occupied by other persons by holding the occupier liable for any loss or injuries suffered by visitors in their premises (Harpwood, 2009, p. 222). The occupiers of the land or premises must ensure visitors are adequately protected against any foreseeable danger during their stay in the premises. Occupiers can avoid liability by issuing adequate notice concerning foreseeable risk in the premises such as by putting vising posters warning the visitors against risk of fall due to slippery floor (Horsey & Rackley, 2013). In the case of Ward v Tesco Stores Ltd [1976] 1 WLR 810, the defendant was held liable for negligence of duty of care due to pink yogurt that made the plaintiff fall and sustain injuries. Therefore, the case involving Morrisco supermarket and Amir the supermarket had a duty of care for the visitors who come to their premises either as workers, customers, etc. because they were aware of the leaking refrigerated cabinet and the risk it posed to the customers they failed to protect visitors against risk of falling. Amir fell because he had partial sight and, as a result, he broke his arm and leg thus he could not be able to attend to his duties for a full year. Therefore, Morrisco supermarket may face several legal consequences for the damages suffered by Amir. The use of warning cones and baskets were not sufficient to protect persons with physical impairment such as Amir from suffering damages. The warning was not sufficient to stop visitors from getting injured, and the supermarket could have done something extra to prevent the accident such as repairing the leaking refrigerated cabinet. Therefore, the supermarket may have to compensate Amir for damages caused by broken arm and legs including the medical charges as well as lost revenue for the full year he could not attend his dog walking job. List of References Anns v Merton London Borough Council [1978] AC 728 Donoghue v Stevenson [1932] UKHL 100 Elliott, C. & Quinn, F. (2007). Contract Law. Pearson Longman. Pp.1-400. Foley v Classique Coaches Ltd. [1934] 2 KB 1 Harpwood, V.H. (2009). Modern Tort Law, (7th ed.). Routledge, 222-576. Hess, K. Hess, C. & Cho, O. H. (2014). Introduction to Law Enforcement and Criminal Justice, 11th ed.). Cengage Learning. 1-672. Horsey, K. & Rackley, E. (2013). Tort Law, (3rd Ed.). UK: Oxford University Press. Pp. 1-618. McKendrick, E. (2014). Contract Law: Text, Cases, and Materials, (6th ed.). UK: Oxford University. Pp. 1-1088. Steele, J. (2014). Tort Law: Text, Cases, and Materials (3rd ed.). UK: Oxford University Press. Pp. 1-992. Taylor v Caldwell [1863] EWHC QB J1 Ward v Tesco Stores Ltd [1976] 1 WLR 810 Read More