Case Study Scenario: Tort and Negligence
797 WordsJan 7th, 20183 Pages
However, every party carries some responsibility for the eventual double amputation. This paper examines each of the parties, their possible liability and how that is covered by negligence law.
The first issue is that he was using the equipment improperly so there is some culpability on his side. The manufacturer of the rim could argue in court, as a defense against negligence, that there was a contribution to the negligent product on the part of Bobby. The law says that "Contributory negligence occurs when a plaintiff's conduct falls below a certain standard necessary for the plaintiff's protection, and this conduct cooperates with the defendant's negligence in causing harm to the plaintiff" (Find Law, 2012). Bobby had Rachel lift him up so that he could dunk the basketball. In normal circumstances, the boy could not have dunked the basketball and would not have had the issue with the rim. Because of his wanton act Bobby could be found partially responsible for the lacerations to his wrists.
ACE Sports Despite the fact that Bobby could be partially culpable due to contributory negligence, there is still an issue with the product. If the product had been recalled by the Consumer Product Safety Commission and was still available for sale, that would be a criminal offence. However, even if this is the first issue with the basketball rim, ACE is still…
Donoghue v. Stevenson is often referred to as the ‘snail in the bottle’ case
Donoghue could not sue Stevenson for breach of contract, because a friend had purchased the drink for her. Instead, her lawyers claimed that Stevenson had breached a duty of care to his consumers and had caused injury through negligence – an area of civil law which at the time was largely untested. Stevenson’s lawyers challenged Donoghue’s action, on the basis that no precedents existed for such a claim. They referred to an earlier action by Donoghue’s lawyer, Mullen v. AG Barr, where a dead mouse was found in a bottle of soft drink; judges in this case dismissed it because of a lack of precedent. Donoghue’s initial action failed, however she was granted leave to appeal to the House of Lords, which at the time still had the judicial authority to hear appellate cases. The leading judgement, delivered by Lord Atkin in 1932, established that Stevenson should be responsible for the well-being of individuals who consume his products, given that they could not be inspected. The case was returned to the original court; Stevenson died before the case was finalised and Donoghue was awarded a reduced amount of damages from his estate.
The outcomes of Donoghue v. Stevenson established several legal principles and precedents:
Negligence. Firstly, the House of Lords ruling affirmed that negligence is a tort. A plaintiff can take civil action against a respondent, if the respondent’s negligence causes the plaintiff injury or loss of property. Previously the plaintiff had to demonstrate some contractual arrangement for negligence to be proven, such as the sale of an item or an agreement to provide a service. Since Donoghue had not purchased the drink, she could prove no contractual arrangement with Stevenson – yet Lord Atkin’s judgement established that Stevenson was still responsible for the integrity of his product.
Duty of care. Secondly, the case established that manufacturers have a duty of care to the end consumers or users of their products. According to Lord Atkin’s ratio decendi, “a manufacturer of products, which he sells… to reach the ultimate consumer in the form in which they left him… owes a duty to the consumer to take reasonable care”. This precedent has evolved and now forms the basis of laws that protect consumers from contaminated or faulty goods. These protections began as common law but many have since been codified in legislation, such as the Trade Practices Act (Commonwealth, 1974).
Neighbour principle. Thirdly, the Donoghue v. Stevenson case produced Lord Atkin’s controversial ‘neighbour principle’, which extended the tort of negligence beyond the tortfeasor and the immediate party. It raised the question of exactly which people might be affected by negligent actions. In Donoghue’s case she had not purchased the ginger beer but had received it as a gift; she was a neighbour rather than a party to the contract. Atkin said of this principle: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought to have them in [mind] when I am [considering these] acts or omissions.”