An Overview of the Case of the Tort of Negligence Paper Example

Introduction

The case to be discussed in this paper mainly revolves around three individuals, Kylie, her mum and her nanny. Kylie works as a business mentor in a TV show. Back at home, she has a nanny who helps her take care of her baby. On returning to work, Kylie is able to concentrate on the job as her nanny takes care of the baby. Kris, Kylie's mum, buys an expensive pram that the nanny can use it to take Kylie's baby out for a walk. The issue, in this case, arises when the nanny suffers a deep cut on her hand after a cable snaps as she tries to apply brakes on the pram while taking the baby out for a walk for the first time. Treatment for this injury requires surgery and forces the nanny to be hospitalized for one week and subsequently miss a planned vacation with her family. With the above events in mind, this analysis applies the tort of negligence laws to try and advise the nanny whether she can take any legal action, the legal remedies that are available and what measures to take if she opts not to press charges.

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Advice on whether the Nanny has a Right of Action under the Tort of Negligence

In the UK common law, the tort of negligence stemmed from the Donoghue vs. Stevenson case, where the claimant sued the manufacturers of ginger beer that caused him damages such as nauseating and nervous shock due to a decomposed snail that was in one of the beer bottles. This case was arbitrated by the House of Lords whose task was to determine if indeed the manufacturer was negligent despite there being no contract with the claimant (Muhametaj, 2017).

In this regard, after reviewing some relevant authorities, the House of Lords determined that for an act of negligence to be available, the claimant must prove in a court of law that the accused owed them a duty of care, the accused violated the duty of care and that they incurred damages or losses, which are not too remote, due to the violation. Furthermore, this negligence can exist irrespective of whether the injured person and the manufacturer or perpetrator have a binding contract between them. In such a case, the claimant is entitled to compensation (Muhametaj, 2017).

From the above statement, the tort of negligence can simply be taken to mean an irresponsible or thoughtless behavior with no intent to hurt or cause damages. One element of an act of negligence that a plaintiff must prove is the duty of care that the defendant ought to have upheld. Basically, no one should hurt people who they owe a duty of care through their actions. If an individual or a company breaches this duty of care, then they are liable for the damages caused by their acts or inadvertences due to neglect (Hinds, n.d.).

In Donoghue vs. Stevenson (1932) A.C. 562, the issue was whether the appellant, who suffered gastroenteritis and shock due to a decomposed snail in a bottle of beer that was bought to her, would sue the manufacturer for negligence. The court established that the manufacturer of the ginger ale beer owed the appellant a duty of care and thus ruled that the manufacturer had to compensate her for the ailments suffered (Hinds, n.d.). Drawing reference to this case and the above explanation, it is beyond doubt that the manufacturer of the pram owes the nanny a duty of care. Before releasing the prams into the market, the manufacturer should ascertain that the products are safe for human use and, therefore, will be held responsible if a consumer is injured due to the negligence of the product's operational safety. For that reason, the nanny has the right to take legal action against the pram's manufacturer.

After determining that the defendant owes the claimant a duty of care, the other issue to consider is whether the defendant violated the duty of care (Muhametaj, 2017). This issue entails the consideration of if the claim of omission or action results in liability. The court determines if the accused is at fault by first establishing the standard of care owed to the plaintiff, where this standard represents what a reasonable individual would do with regards to the matter in question. The court then uses this standard as the yardstick to check if the defendant's actions were reasonable.

Based on the principle of reasonable foreseeability, the court tries to check what the accused should have foreseen. For this reason, cases that involve questionable aftereffects are likely to fail. In Fardon vs. Harcourt-Rivington (1932) All ER Rep 81, Lord Atkin and Lord Dunedin ruled that is the likelihood of danger resulting from an act or omission is practically evident, taking no precautionary measures is deemed to be negligence. Nonetheless, if the likelihood of danger is just a possible outcome that a reasonable man cannot foresee, the defendant is not culpable for negligence or not taking unexpected safety measures.

Based on the above reasoning, the success of the nanny's claim in court will largely depend on her ability to prove that the manufacturer breached their duty of care. Some questions will have to be answered to determine the course of the nanny's claim. First, did the manufacturer test all the components of the pram, including the braking system, to check if there were any faults? Secondly, if the test was done, did the manufacturer ignore any faults noticed? And, thirdly, after Kylie's mum bought and brought the pram to the nanny, did she conduct due diligence to ascertain that the pram was in good condition?

If the answers to the above questions lead to the conclusion that the manufacturer failed in their responsibility to guarantee safety for the person using the pram, then the nanny can proceed and file a lawsuit. However, if the answers do not indicate any act of disregard for the safety of the user, any claim against the manufacturer will likely be unsuccessful. Therefore, the nanny should not take legal action.

The third aspect considered to prove a negligence claim is the causation and damage. LawTeacher (2013) argues that the English law calls for perpetrators to be indicted when found personally accountable for damage(s). This law defines damage as harm or an injury that lessens the usefulness and state of an object.

Typically, to hold the defendant liable for negligence, the appellant has to prove damage. The Johnston vs. Nei International Combustion Ltd (2007) UKHL 39 claim was unsuccessful since the plaintiffs unable to rightfully show that they had sustained injuries even though their lungs had pleural plaques. With this case in mind, Muhametaj (2017) purports that after determining that the defendant breached the duty of care, it is vital for the claimant to present proof that the injuries suffered were caused by the negligent action.

The claimant may not always easily prove causation and, thus, requires factual details from specialists. Moreover, irrespective of whether the claimant can present factual evidence of causation, the court still needs to establish the remoteness of damage. In this regard, the English law posits that the accused will not be responsible for damages that are too far removed from the reckless behavior since the accused could not have anticipated the kind of harm caused (Muhametaj, 2017).

The aspect of reasonable foreseeability considered when determining the violation of duty is also applicable at this stage. In our case, if the nanny can prove that the manufacturer did not act reasonably by releasing a faulty pram into the market, then her claim that the manufacturer is liable for the deep cuts that she suffered on her hand can be considered. A court of law will not need to determine the extent of this deep cut on the nanny's hand. Therefore, the manufacturer will be required to compensate the nanny for the injury.

Conversely, the manufacturer may have not foreseen this kind of damage occurring to the nanny. In this regard, the manufacturer may have ascertained that the pram's braking system was functioning at, virtually, the optimum level at the time when they released it to the market. For that reason, the manufacturer could not foretell that any slight inefficiency would result in the extent of injury caused on the nanny's hand.

Besides, the nanny may have hit an object while applying the brakes, which resulted in a reaction from shock loads that the brakes and the pram could not contain to safe levels. If this happens to be the case, the nanny should not take any legal action against the manufacturer since there will be no proof that the deep cut suffered was as a result of the manufacturer's negligence. However, based on the information given, the injury suffered by the nanny was not caused by any physical damage to the pram and it would, thus, be safe to conclude that the failure in the braking system was mechanical or rather due to its inefficiency thereby holding the manufacturer liable for the harm caused. Therefore, going by the argument presented above, the nanny has every right to file a lawsuit against the manufacturer.

The Legal Remedies that may be Available to the Nanny

As indicated above, it is highly likely that the nanny suffered the deep cut on her hand due to an act of negligence by the pram's manufacturer. The nanny is, therefore, entitled to compensation for the suffering she went through. Under torts law, the nanny has a number of possible legal remedies that would befit the nanny's case. These remedies can be in the form of monetary payments that the pram's manufacturer will compensate the nanny for the pain and suffering caused due to the deep cut, the medical expenses incurred when treating that cut and inconveniencing her since she was unable to go on a planned vacation with her family.

King (2004) acknowledges that monetary compensation for medical costs is the most appropriate remedy for cases where negligence caused injuries to the victim(s). In this regard, when the pram's manufacturer pays for all the medical expenses the nanny spent while in hospital, the nanny will be able to return as close as possible to her initial state. Furthermore, this compensation will cancel out some of the pain suffered after the deep cut. If the nanny underwent a surgical operation, the court can also award her phantom pain to compensate for the discomfort that she may be experiencing on the part that was cut.

The Best Way to Proceed if she Wishes to Avoid Court Action

As opposed pressing charges against the manufacturer, the nanny can opt for alternative methods to resolve the issue before it escalates. These approaches are what the Civil Procedure Rules terms as the Alternative Dispute Resolution (ADR) methods that encompass ways of settling differences other than the typical court processes (Hodges & Tulibacka, 2009). These ADR methods include arbitration, mediation, adjudication, expert determination and early neutral evaluation.

Since the dispute between the nanny and the manufacturer, as discussed above, arises due to negligence, which caused physical injury to the nanny, and considering the cost pressures that come with legal procedures, the most appropriate ADR method would be either expert determination or mediation. For mediation, the nanny will propose to the manufacturer that they should call upon the intervention of a mediator to manage their negotiation. This mediator will be a neutral and independent individual who will evaluate the case and help the nanny and the manufacturer reach an agreement.

After the nanny and the pram's manufacturer agree to mediation, they will set the time, a neutral venue and length of the entire mediation process. The two parties will then select a mediator to whom they will then send a brief of their side of the issue. The manufacturer can then nominate his representative. Of impo...