Paper Example on Kyle's Negligence Tort: Understanding the Law & Seeking Redress

Introduction

The case of Kyle presents a negligent tort which she ought to pursue redress against the company from which she bought the make-up which turned out to trigger hypersensitive skin reactions in her. To begin with, Kyle must have a clear understanding that unlike other types of lawsuits in which the accused person often have a deliberate intent to harm, torts do not necessarily have to root from outright harmful intentions. As long an individual or corporate entity fails to reasonably act in a case where they owe a duty to act honestly and avert foreseeable damage, e tort for negligence can be pursued. Nonetheless, to successfully pursue a negligent tort, the plaintiff who in this case is Kyle has the burden of proving particular facts. She must show that the accused person owed him or her a duty or service, the entity who owed such duty violated it; an injury arose from such a specific violation of obligation and that the resultant damage could reasonably be foreseen as emanating from the negligence of the duty bearer. In essence, it is not mandatory that the duty bearer and the appellant must have some form of the contractual agreement for a negligent tort to pass. Given the fact that Kyle's artist bought for her a new range which was advertised explicitly for sensitive skin as being "paraben and preservative free" but turned out to have the paraben makes a suit for negligent tort feasible for her.

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As a primary requirement, Kyle needs to carefully analyze her issue to determine if undoubtedly her case constitutes a negligent tort. The tort of negligence in legal conception is wrong that someone, unsuspecting or not, suffers as a result of the failure of someone who owed him or her the duty to act reasonably to avert a foreseeable risk (Griselda, 2017 p.30). From this legal definition and operation of tort law, it is clear that Kyle has a great case to prosecute before a competent court of law. Most claims of tort negligence, there are contractual agreements between the duty bearer and the appellant. However, the precedent set in Donoghue v Stevenson exemplifies that an individual cannot be denied a hearing just because he or she suffered a foreseeable risk due to the negligence of a duty bearer in a case where a contractual agreement lacked. Based on this legal fact, Kyle has a justifiable basis for launching the case. Secondly, she must understand what her duties as an appellant under the UK tort laws are. Unless Kyle fully discharges her burden of proof of the three critical elements of a negligent tort claim, then her case may lose its feasibility. In the case of Kyle, she needs to convince the court that the manufacturer of the make-up she used which turned out harmful to her skin; owed her a duty of care, breached the duty of care owed to her and due to the breach of the responsibility, she suffered a foreseeable risk (Steele, 2010 p. 431). In case the jury decides to apply a two-thronged approach in assessing the duty of care as in the case Anns v Merton London Borough Council (1978) AC 728, Kyle must be prepared to convince the court on three other things. She must demonstrate that; the harm she suffered was reasonably foreseeable and resulted from the conduct of the defendant, there was a relationship of proximity between the actions and injury sustained, and the defendant would not be deemed to be unfairly treated if a liability is imposed on him/her (the principle of justice) (Wright, 2001 p. 184).

Existence of the duty of care

In the case of Kyle, she must frame her suit in such a case that directly and clearly show that the defendant (make-up manufacturer) owed her a duty of care Griselda Muhametaj. 2017 p. 31). In the case, Donoghue v Stevenson, the House of Lords asserted that every individual has a particular duty to care for his or her neighbor. They further explained what constitutes a neighbour as someone who is closely and directly impacted by an act (Harpwood, 2005 p.169). This means that the House of Lords implies that at any one time, people must contemplate about how their actions may affect the neighbor. In this case, Kyle must exploit the fact that she was a "neighbor" to the manufacturers of the makeup by being a customer. She also needs to demonstrate that by buying the make-up from the manufacturer, she was sufficiently close to the manufacturer hence it was 'reasonably foreseeable' that any negligence on the part of the business would result in damage or loss to her.

Breach of the Duty of Care

Apart from considering the viability of her case and duties she needs to discharge in her case, Kyle must pragmatically approach each of the responsibilities in her averments in ways that directly address her situation. Of fundamental importance to her is the need to prove that the manufacturer of the make-up breached the duty of care (Steele, 2010 p. 417). In this case, she was an unsuspecting customer who sought an alternative make up for her allergic skin. The manufacturer owed her a responsibility to provide the best alternative make-up as was advertised, but this was not the case. There was a breach of the burden of care. As a business entity, the manufacturer had a reasonable duty of care to provide the exact products with the same quality as they had advertised. This implies that Kyle ought to have been sold a make-up which was "paraben and preservative free." The outcome that the make-up had parable is a clear proof of breach of the duty which Kyle should bring out if her case needs to succeed. As a matter of practice, Kyle must ensure that the manufacturer breached the standard of care that any reasonable person would have taken to avert the problem she experienced (Wright, 2001 p. 86). Once the court establishes that the manufacturer did not adhere to the standard of care, they may adjust the veil based on specific reasons. Some of these reasons include the existence of professional rules which apply to the case at hand and the standard best practices and guidelines employed in the industry. In the case of Kyle, she only needs to have a prima facie knowledge of the existing industrial guidelines which the make-up manufacturer ought to have followed. In this case, there was a need for full disclosure of the product content, and the marketing department had a legal duty to provide accurate product details that have no potential of misleading the buyers. She needs to present such information in detail early enough so that she demonstrates that there was a high degree of risk in the actions of the defendant and that there was a need for extra precaution to be reasonably taken.

Loss/damage resulting from the Breach of the Duty of Care

As a matter of principle in negligent tort cases, Kyle must adequately show that she unduly suffered damage or loss as a result of the negligence of the make-up manufacturer. Here, she may need medical reports to directly link the parabens in the make-up to the hypersensitive skin reactions which she experienced (European Commission, Bar, Drobnig & Alpa, n.d. p.132). Nonetheless, the fact that she already established her allergy for parabens used as a preservative in her usual makeup brand implies having adequate medical records. Also, the sheer fact that on investigation the makeup is found to contain parabens buttresses her case that her suffering emanated from the parabens. In essence, all that Kyle needs to prove to the court to make her matter weighty is that were it not for the actions of the make-up company; she would not have suffered the skin damage. In her case, there is a chain of events which she needs to distinguish clearly to convince the court (European Commission, Bar, Drobnig, & Alpa, n.d. p. 180). For instance, she initially used to make up having the content of parabens as preservatives. Therefore, she must categorically break the chain of events in such a way that the judges can easily delimit that the actions of the manufacturer were the most probable cause of her suffering.

The appropriate remedy which may be available to Kyle

At best, the most appropriate remedy for Kyle is damaged. She needs to be compensated for the damages in such a way that she can undergo a restorative medication and recover lost earnings as a result of the negligence by the make-up company. In a legal context, damages imply monetary compensation given to the claimant by the defendant as ordered by the court fo law (Statsky, 2012 p. 327). The payment should be retributive in the sense that it should restore the claimant Kyle to the position she would have been had the tort in question not occurred. Using the Ogden tables, the jury can identify the special damages or injuries that Kyle suffered. Under special damages, the court needs to consider the loss of earnings amounting to PS250,000, which Kyle suffered due to her inability to appear on a magazine due to the damaged facial skin. The compensation should showcase the compensation principle, which requires that the associated cost of medication should be what was incurred to restore the damaged face, rather than to what Kyle is entitled (Lewis, Morris and Oliphan, 2006 p.97). Therefore, the maximum medication compensation that Kyle should be afforded should be reasonable, or that which she incurred, whichever is less. As demonstrated in Rialas v Mitchel [1984] 128 SJ 704, Kyle should not be expected to be extravagant in her choice of medication to restore her facial skin hence should be afforded damages that are consistent with her demonstration that her choice of treatment is reasonable.

Defences a defendant can use if they are found liable in Kyles case

Kyle may not successfully prosecute her case if she did not disclose her skin relations or accepted any potential risks resulting from the use of the makeup before she bought it. In this case, if there was a consent form which she signed but failed to indicate her hypersensitive skin reactions or allergy, then the liability may be waived on the defendant. This is called proof of voluntary acceptance of risk on the side of the claimant. As a purchaser, Kyle needed to have fully disclosed her details to the seller in a consent form if any was available. In case there was such a form, but she failed to indicate her condition but signed it anyway, she may be unlikely to succeed in a claim (Harpwood, 2005 p. 170). Second, if the defendant can prove contributory negligence on the side of Kyle, then the manufacturer of the make-up is likely to be charged for negligence but with reduced penalties in terms of pay-outs if the court determines that any such compensation is to be extended to her by the defendant.

Conclusion

In conclusion, Kyle has a viable case to prosecute against the manufacturer of the make-up company. She needs to meticulously discharge her burden of proof of the three critical elements of negligent tort. This includes a demonstration that the company owed her a duty of care; the company breached the duty of care and that she suffered due to such a breach. Also, she should be compensated for the damages which comprise of the cost of corrective medication and lost earnings as a result of such negligence. However, the compensation must be reasonable. It is also necessary for her to note that if she contributed to the risk or consented to bear possible threats, then the viability of the case is lowered.

Reference List

Anns v. Merton London Borough Council, 1978 A.C. 728 (1978).

Donoghue v. Stevenson, 108 L.Q.R. 236, 108 Law Quarterly Review 236 (1992).

European Commission, Bar, C. V., Drobnig, U., & Alpa, G. (n.d.). Interaction of Contract Law and Tort and Property Law in Europe: A Comparative Study. Sellier European Law Publications.

Griselda Muhametaj. 2017. Introduction of the tort of negligence in the UK legislation and Jurisprud...