What Proves James Needs to Establish a Claim in Negligence - Essay Example

UNIVERSITY STUDENT’S NAME NEGLIGENCE COURSE PROFESSOR DATE OF SUBMISSION Negligence Negligence is a conduct that falls below the standards that has been established by law to protect others against risk of harm that is unreasonable. If a person’s actions have departed from the conduct expected from a reasonable person, prudent person acting under similar circumstances then negligence is said to have occurred.1 Negligence can only be established as a cause of action under the law of tort if the claimant proves that the defendant owed him a duty of care there was a breach of this legal duty the breach caused him some injury, and the injury caused him recoverable damages.2 James is a young talented hockey player whose future is looking very bright. He wishes to do everything to further his career as a professional hockey player. To succeed in this, he knows he must listen to his coach, the team doctor and the physiotherapist. He signed a contract that stated that he agrees to a special diet including vitamins and supplements. The young boy trusts his coach, team doctor and the physio, and he does not question it when he is given supplements by the team doctor. After taking a drug test, he tested positive for a prohibited substance. James has never used any drugs. He claims he is innocent. This paper explores what proves James needs to establish for a claim in negligence and the likelihood of the defense of volenti non fit injuria. Proves needed to establish a claim in negligence Duty of care Therefore, duty of care is a legal obligation imposed on an individual requiring that he or she adheres to a standard of reasonable care when he performs any act that could foreseeably cause harm to others. To proceed with an action in negligence, duty of due care is the first element to be established. The plaintiff must show clearly that it is a duty of care established by law that has been breached by the defendant. In our case, James must prove that the team doctor owed him a duty of care.3 Being a young player, James had every right to listen to the advice of the team doctor. He considers the team doctor to be a medical professional, who should be able to advise him on what to use and what not to use as far as his career in hockey is concerned. The team doctor acted as an expert in his field and, therefore, James had to take his instructions and advice as expert’s advice. The team doctor also failed to warn James that some of the supplements he was taking may contain some prohibited substances. Therefore, the team doctor owed James a legal duty of care, i.e. to make sure that he does not take any special diet, vitamins or supplements that contained substances that are prohibited. Breach of duty of care The plaintiff must prove that the duty of care owed to him by the defendant had been breached. A breach of duty is said to occur when a person who owes another a duty of care fails to live up to the expected standards.4 Courts use reasonable man test to determine whether or not a duty of care has been breached. If a person fails to act as a reasonable man with similar skill and knowledge and under similar circumstances would, then a legal duty of care is said to have been breached. The breach of duty of care must cause some injury to the claimant.5 The team doctor did not act as a professional doctor would do. This is because he failed in his Job by giving James supplements that contained substances prohibited for ice hockey players. The team doctor knew, or ought to have known that supplements posed some risks as far as James’ career was concerned, and he should have warned him so as to escape liability. The team doctor’s breach of due care caused James some injury in terms of testing positive for prohibited substances, and this caused the damage i.e. ruined James’ career as an ice hockey player Causation of damage This relates to the link between the defendant’s negligence and the plaintiff’s damage. Even if it is proved that the duty of care was breached by the defendant and the plaintiff sustained injuries, the negligence claim will fail unless it is proved that the damage resulted from the breach. “But for” test is used to prove the cause of the damage, where the defendant would be liable only if the damage caused to the claimant would not have occurred, but for this negligence.6 In the case of James and the team doctor, it is clear the negligence of the team doctor is the only cause of the damage. This is because James claims he is innocent for he operates a ‘clean body’ policy and he has never taken any drug before. Defense of Volenti Non fit injuria Volenti non fit injuria is a common law doctrine which holds that if a person willingly places himself or herself in a position where harm is likely to result, having knowledge that some harm might result, then they will not succeed in bringing a claim in tort or delict against the other party.7 The doctrine of volenti non fit injuria is applicable in limited situations only. It provides that the claimant may not recover for the loss which he or she assumed the risk of injury voluntarily. The defense of assumption of risk requires a claimant to have entered an agreement freely and voluntarily, having full knowledge of the circumstances at hand so as to absolve all legal consequences of the defendant’s actions. The requirement of the defense of assumption of risk is; voluntary, agreement, made in full realization of the nature and the extent of the risk.8 Voluntary The plaintiff must have had genuine freedom of choice. The defense will fail if the claimant was not in a position where he or she could exercise free choice. If a person cannot exercise free choice, then it cannot be said he was truly willing.9 Agreement Where the parties involved had reached express agreement, before the occurrence of the negligent act, that the plaintiff will assume the risk of harm voluntarily then the defense would operate. Knowledge In order for the defense of assumption of risk to operate the defendant must prove that the claimant had knowledge of the risk that was in existence, its nature and extent. The test applied here is subjective. If the plaintiff ought to have been aware of the risk, but he was not, the defense will fail.10 Considering the three requirements for a defense of assumption of risk to be successful, it is clear the coach and the team doctor cannot rely on the maxim of volenti non fit injuria as a defense to the civil tort of negligence that James can bring against them. The only response that the coach and the team doctor are giving is that James voluntarily consented to taking the prohibited substances. James was capable to make his own free choice, but his choices were influenced by the team doctor. If a person’s freedom to choose is influenced by another, then it cannot be said that the choice was truly voluntary. Another reason that would make the defense of assumption of risk to fail is the lack of express agreement stating that the claimant would assume the risk of harm voluntarily. Finally, the defendants would face more difficulties to prove that James had full knowledge of the risk that was posed by the use of a special diet, vitamins and supplements that were given to him by the team doctor. He was entitled to trust what the team doctor was giving him since the team doctor was an expert in that field, and James had no reasons to doubt his credibility. The team doctor also failed to warn James that what he was giving him may not be 100% free of prohibited substances. Looking at the facts and circumstances surrounding this case, it is most likely that a cause of action in negligence by James against the team doctor will succeed. This is because James can be able to prove that the team doctor owed him a duty of care that duty of care was breached, and, as a result, there was an injury which made him suffer recoverable damages. James can also be able to prove the causation of damages. He can be able to show a physical link between the team doctor’s negligence and the damages he suffered. On the other hand, defendant’s efforts to use the defense of volenti non fit injuria will fail. This is because, for the defense to succeed there must be a voluntary, agreement, made in full realization of nature and the extent of the risk. This has not satisfied given the facts of this case. Bibliography Corfield, Lorraine. 2007. 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