The Drug and Substance Abuse - Essay Example

Law of Tort – Negligence April 11, 2006 Law of Tort – Negligence Introduction The case under analysis is a fictional case about Negligence in Tort. The applicable law in this case is of Tort – under the head of negligence. The case is about Lydia van Horne, the plaintiff and the defendant Gibson’s Gym. In the scenario, the claimant has been taking a herbal drug called St Joseph’s Oil. To cover and help her asthma she also took Diastaline, just three days before her match. The plaintiff is the one who took the case to court, stating that it was the fault of Gibson’s Gym, since it did not provide information about the drug and its side effects, when it should have. The defendant is of the claim that the drug and substance abuse did not come under its head since it was the duty of the plaintiff to follow the regulations and not use a banned drug – the usage of which is a fraud on Gibson’s Gym. The paper explains the case in detail, along with providing an analysis of the case with reasonable evidence taken from several other cases based on the same Law of Tort and Negligence. The paper, before delving into the details, however, explains the Law of Tort to polish the claims and the judgments of the case van Horne v Gibson’s Gym The Case - van Horne v Gibson’s Gym Gibson’s Gym is a professional training institute for boxers. In recent years, it managed and trained female boxers as well, and in this regard, one of the female boxers has been Lydia Van Horne. She had trained for six months, and was having problems with asthma. She had recently secured a promotional contract involving three fights over the next eighteen months. This deal was likely to be worth around £65,000 to Lydia. For her asthma problems, one of the trainers recommended St Joseph’s Oil for relief. However, the Oil herbal treatment did not provide much relief, and taking her own initiative she took a few doses of a new performance-enhancing drug called Diastaline. This drug is usually impossible to detect if taken a few days before the testing for the drug. However, the Oil herbal supplement and the drug – Diastaline reacted in a way that made the drug quite possible to detect, along with some very apparent side effects like growth of a beard and deepening of the voice. Since her detection of drug abuse, she was banned from professional boxing and also from Gibson’s Gym, as it was the Gym’s policy to do so. Alongside that, studies in Japan on Diastaline and St Joseph’s Oil showed the several aspects of apparent drug abuse that Lydia had shown after taking both the herbal supplement and the drug. Lydia brought an action in negligence against Gibson’s Gym on the basis that Gibson’s had failed to warn her about the risks involved in taking Diastaline and St Joseph’s Oil at the same time. The claim covered both personal injury and the loss of her boxing career, including the loss of the £65,000 promotional contract. The case is of negligence in Tort, since “ordinary care1” was not taken. This is shown by the fact that neither the pamphlet relating to drugs and health mentioned the side effects, nor did Lydia take care in taking in drugs and herbal supplements showing negligence on her part.2 Law of Tort and Negligence Generally, when Tort is referred to, it means that there have been commitment of a civil wrong, and has been recognized by the law to be so, in which case, there is an obvious and apparent case of Tort. The wrong or harm has resulted in physical or emotional injury, which results in a basis on which a claim can be made by the plaintiff. In effect, 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” 3 Among the types of damages the injured party may recover are: loss of earnings capacity, pain and suffering, and reasonable medical expenses.  They include both present and future expected losses. 4 Negligence is a special type of Tort in which the idea is that ordinary care was not taken or there act of omission in the whole scenario. In this regard, normal care is not taken for a particular set of circumstances, or an act is done, which would not have been done if the circumstances were different.5 In this regard, there are several sets of circumstances and requirements when Law of Tort and Negligence is applied: 1. “The defendant owed a duty to the plaintiff (or a duty to the general public, including the plaintiff); 2. The defendant violated that duty; 3. As a result of the defendant's violation of that duty, the plaintiff suffered injury; and 4. The injury was a reasonably foreseeable consequence of the defendant's action or inaction”.6 Analysis of the Case The claim by the plaintiff was of Negligence on the part of the defendant that the Gym did not provide enough or pertinent information about the drug that Lydia used for her asthma problem. The claim of the plaintiff fell for a certain number of distinct reasons. Considering a case Doughty v. Turner [1964], where the plaintiff Doughty worked, and upon whom a cauldron full of molten metal exploded. The conditions under which this case happened, puts the claimant in such a position that he was not aware of such a situation happening, where chemical changes could cause such a problem 7 In this case the plaintiff’s claim had failed and thus the foreseeable risk was not known to the defendant.8 A tort case of negligence was not applied in this regard. This is again a precedent to the case under study that the chemical reactions of the drug and the herbal supplement were not known. In respect of the physical effects, the mechanism of injury was effectively unknown to medical science and so not reasonably foreseeable (Doughty v Turner [1964] 1 QB 518). 9,10 Another case, precedent to the case under study can be considered as one of novus actus, Knightly v Johns [1982] 1 All ER 851, CA. In any event, Lydia’s claim would be excluded by the principle ex turpi causa, since her claim was based on her taking a banned drug, which amounted to a fraud on her opponent, the promoter and the public since she was attempting to win the fight by cheating. In this regard, she should have considered the fact that taking a drug was committing a fraud against the contract with the Gym. 11 Another precedent is the case of McKew v Holland and Hannen and Cubitts in Scotland, again relating to novus actus. The claimant suffered at the premises where he worked for the defendant. The fact that was present in the case was that it was not due to causation but carelessness that caused the claimant suffering. Therefore, the case is a precedent, where Lydia had an idea that the drug being taken can have side effects. This was not causation of side effects but Novus actus on her part that caused the side effects. 12 Lydia now appeals to the Court of Appeal on the following two grounds: 1) Gibson’s did indeed owe a duty to warn Lydia against the risks involved in taking St Joseph’s Oil and Diastaline together since Lydia had reasonably relied on the information contained in Gibson’s leaflet. The precendent to the above situation is that of Watson v BBBC [2001] 2 WLR 1256, CA, where effective medical care information was required on the part of Watson, which should have been provided by the Board of Control. 13 It should be noted that Gibson took a specific risk when it presumed to protect the boxers in all regards. This risk has a precedent in the case of Reeves v Metropolitan, 199914, where the information should have been known along with the risks involved. Also, in regard to that, Gibson’s duty was to inform the boxers completely about any research on medicines and drugs that are common in the boxing industry. Precedent to this situation is the case of Shakoor v Situ [2000] 4 All ER 18115, where again complete information should have been known. Another ground on which Lydia can take her claim is that Lydia’s decision to take a performance-enhancing drug was not a novus actus interveniens since Gibson’s should have expected some boxers to ignore general warnings about the use of drugs and to take the risk that they would not get caught. The case of The Oropesa [1943] 1 All ER 211, CA 16, in this regard is a precedent, in which case, the effect was incurred only because the stakes and the risks were very high. The present case was within the ratio of The Oropesa [1943] 1 All ER 211, CA17 in that, although foolish, Lydia’s decision was within what might have been expected of boxers placed in her position. Moreover, the defence of ex turpi causa should not be available in the present circumstances since the taking of performance-enhancing drugs is not illegal per se, it is simply against the rules of professional boxing. There is no reason why legal policy should operate to exclude a valid legal claim in order to encourage adherence to the rules of a sport.(Shakoor v Situ [2000] 4 All ER 18118). In conclusion, therefore, the best in this regard is that the defendant was not knowledgeable about the conclusions or side effects of the drug and the herbal supplement combined together, and the research for the drug was actually under way, therefore, the case should be of the defendant, rather than the plaintiff, in which case, the plaintiff actually conducted a fraud against the defendant by breach of contract and taking a drug that was not allowed. Bibliography 1. C. Hartwell No. 12. 23rd February 2004. Retrieved on April 11, 2006 from website: 2. Causation and Remoteness. Retrieved on April 11, 2006 from website: 3. Doughty v Turner Manufacturing Co (1964) CA. Retrieved on April 11, 2006 from website: 4. Higher Education Law. Retrieved on April 11, 2006 from website: 5. Jersey Legal Board Information. Retrieved on April 11, 2006 from website: 6. Larson, Aaron. Negligence and Tort Law. ExpertLaw. Oct 2003. Retrieved on April 11, 2006 from website: 7. Law of Tort. Retrieved on April 11, 2006 from website: 8. McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969] HL. Retrieved on April 11, 2006 from website: 9. The Classical Law of Tort. Coke's Institutes of the Law, No. 1, Amanda J. Owens & Charles K. Rowley. Retrieved on April 11, 2006 from website: 10. Tort – Wex. LII – Legal Information Institute. Dec 2, 2005. Retrieved on April 11, 2006 from website: 11. The United Kingdom Parliament. Retrieved on April 11, 2006 from website: 12. The Oropesa [1943] 1 All ER 211. Retrieved on April 11, 2006 from website: Read More