Negligence and Defense for Volenti Non Fit Injuria - Essay Example

Name: Tutor: Course: Date: Negligence and Defence for Volenti non fit Injuria This essay sought to discuss the obligatory elements for assessing negligence and establish whether a liability should be vindicated to defendant or the plaintiff. A number of cases have been evaluated to support this area of business law established under the law of tort on negligence. The basis of issuing a verdict is based on established and clarified issues sufficient to warrant damages arising from duty of care to the plaintiff, breach of that duty, causation and damages. Expressly, this essay advances the argument with reference to the provided case law, that sufficient evidence exists to establish that; Team doctor had professional knowledge on Ice Hockey team dietary needs which was indisputable.. These findings results in a situation that demands James to pursue damages against the Team doctor, owing to gross negligence to the duty of care. The essay will also discuss if the team doctor has any defence to negligence based on Volenti non fit Injuria on the plaintiff who was required to exercise own duty of care. Donoghue v Stevenson [1932] AC 562 originated the tort of negligence. Lord Atkin established that there must be in some broader conception in English law relations that expresses the duty of care. In this case P sued for damages from a manufacturer even though no contract existed between them. A snail had entered a bottle. Lord Atkin mentioned that the claimant should take reasonable amount of care to avert omissions or acts reasonably foreseen to likely injure a person directly or closely affected by one’s act and need to have in contemplation1. In the case provided, one party (James) acted upon the dietary prescription of another (Team doctor), by entering into a special diet, which resulted in loss of employment and income. It is true that Donoghue v Stevenson [1932] AC 562 provided a basis on the laws to tort regarding negligence,2 where the subsequent cases offered clarification on the duty of care needed to provide a basis for issuing damages arising from negligence. In this essay, the first element examines is the finding in Perre v Apand (HC) [1999] 73 ALJR 1190 that the representor distributed potato seeds while negligently offering diseased seeds to Sparnons neighbouring Perres. Later, the crop got infected with bacterial wilt. Perres crop was not infected but the legislation prohibited sales of crop within 20 km radius. Perres sued for damages3. The argument by Apand was that the duty of care in averting economic losses was inconsistent with commercial standards. The court held that a determined class of people existed and those falling within the 20km radius had their economic freedoms undeterred. This finding also gains the support of in Wyong Council v Shirt (1980) 146 CLR 40, the plaintiff being an inexperienced water skier in a remote lake. The council had placed a ‘deep water’ notice on which the claimant come off his skies and hit his head on a rock bed causing injuries. He sued the council for negligence of a misleading sign4. The court held that the event was not fanciful or far-fetched hence foreseeable. In the case provided, James abided by the rules of the team which included compulsory special diet of vitamins and supplements which infers that the risk was not far-fetched or fanciful. He had no information or special knowledge regarding the contents of the supplements and vitamins hence relied on the directions of the Team doctor. It may be argued that the Team doctor owing to his position as the medical professional may be privy to special information regarding doping and use of banned substance which is not sporty and leads to dismissal from any event. The second element establishes that the medical advice was negligent which as a result caused the injury. Barnett v Chelsea & Kensington Hospital management Committee [1969] 1 QB 428 found that P’s husband was taken ill in the hospital after taking tea. In the casualty the doctor had gone home leaving the nurse back. The doctor after a call from the nurse told the patient to see his personal doctor. The patient died five hours later from arsenic poisoning present in the tea. P sued the doctor and the hospital5. It was established from the court that the doctor was negligent in his duty to treat the patient but not liable to the death of the patient which arose from arsenic poisoning in tea. From the case, it can be established that the Team doctor worked closely with the coach. Team doctor did not make James to be aware of the risk of taking ‘supplements’ to succeed in Ice hockey games. If this happened, it could have indicated to James that the Team doctor was demanding involvement in relation to a serious substance commitment. Besides, the success in a game depends on application of team rules and use of genuine dietary supplements. The defence for contributory negligence establishes whether duty of care had been breached. In the case of Pennington v Norris [1956] 96 CLR 10, in this case, D on a wet night ran over P who had had few drinks. The court held that P had contributed to his negligence by drinking and damages reduced by 50%. On appeal, the damages were reduced by 20% based on the fact that apportionment of responsibility between P&D must be equitable and just6. The third component establishes that it should be reasonably foreseeable for the person receiving the advice or information to depend on the advice or information from a professional. In this case, James was seeking reparations for loss in future contracts and damage to his name. The team doctor may have acted on ensuring success of James and his team mates. It is unlikely that all the trainees could have been taking the banned substance as ‘supplements’. To further support this argument, the Pennington v Norris [1956] 96 CLR 10 judgements establishes a common defence for the defendant where the duty of care has been breached7. It should be realized that James made no attempt to mitigate his liability by taking recreational drug tests. Hence, the damages could be mitigated to some ratio above 50%. There is an additional question whether the team doctor had any defence based on Volenti non fit Injuria. There is indication that the plaintiff did not take serious consideration on own duty of care to take outside the team tests or advice him on the broadness and randomness of tests. By agreeing to sign to the special diet, it amounted to voluntary assumption of risk. It can be obtained that the plaintiff must have agreed impliedly and expressly in waiving any injury claims that befell owing to absence of reasonable care from the defendant. From the case study, the defence on the part of the defendant fails because the plaintiff had no genuine freedom to choose, had not consented to the risk and danger of losing his sporting involvement. Under the requisites for the defence in volenti non fit injuria, the claimant must have acted voluntarily in a way of expressing a free choice. There must be implied or express agreement among parties prior to the defence becoming operational. The claimant coming across a danger should have the situation already created by the defendant if the defence is to hold ground. Success of defence means that the claimant will not recover damages. The defendant must show prove of the claimant failing to take duty of care resulting in the cause of damage. The claimants fault should have factual and legal cause of the harm suffered. In the case where the defendants are many (team doctor and the coach) and the claimant was at fault for negligence, the plaintiff can recover the full loss against them. From the case study, the plaintiff (James) agreed to the special diet but not the risk associated. The Team doctor and the coach had already created the danger ‘doped supplements’ before the defence was made hence lacked the duty of care. The action for damages will be successful and the defence for volenti on the part of the defendant will fail because the defendant breached the duty of care, the risk was remote and the plaintiff suffered damages. The plaintiff as a result of failure to observe duty of care suffered damages. The injury became a foreseeable result owing to defendants’ actions. Works Cited Atiyah, PS. Introduction to the Law of Contract .4th edn Clarendon, Oxford. 1994. Beale, H. ‘Damages in Lieu of Rescission for Misstatement’.1995. 111 LQR 60 Brown I and A Chandler. 'Deceit, Damages and the Misstatement Act 1967, s 2(1)'.1992. LMCLQ 40 Burrows, A. Cases and Materials on Contract Law (2nd edn Hart, Oxford. 2009. ch 11 Cartwright, J. 'Excluding Liability for Misstatement' in A Burrows and E Peel, Contract Terms.2007. 213 Häcker, B. ‘Rescission of Contract and Revesting of Title: A Reply to Mr Swadling’ RLR 106, responds to Swadling's argument. She point out flaws in Swadling's (1) historical analysis; and (2) conceptual analysis. 2006. O'Sullivan, J. 'Rescission as a Self-Help Remedy: a Critical Analysis' .2000. CLJ 509 Peel, E. Treitel: The Law of Contract (7th edn Thompson, London. 2008. ch 9 Taylor, R. 'Expectation, Reliance and Misstatement' .1982. 45 MLR 139 Cases Barnett v Chelsea & Kensington Hospital management Committee [1969] 1 QB 428 Donoghue v Stevenson [1932] AC 562 Pennington v Norris [1956] 96 CLR 10 Perre v Apand (HC) [1999] 73 ALJR 1190 Wyong Council v Shirt (1980) 146 CLR 40 Read More