Tort in Civil Law - Essay Sample

Introduction

Tort in civil law is a subject which offers remedy to a party which has undergone a breach of a secured interest (Bermingham & Brennan, 2018). Tort protects a broad range of interests, but currently, the most critical type experienced in law suits is negligence. Negligence encompasses the need to protect individual safety as well as economic and property concerns. Recently the English law is more concerned with matters regarding privacy and intrusion by the media (Bermingham & Brennan, 2018). The significant components in negligence include; "duty to care, breach of duty, damages and the foreseeability of the damage occurring" (Lexisnexis., 2018). All these elements have to be present for a claim to be described as negligence. Negligence can be said to be carelessness, which results to harm on another person who has to be compensated for the harm caused. The primary components in negligence are the elements that constitute carelessness and the failure to exercise a duty of care. However there are instances when liability is not imposed on the offender despite them being careless. In the UK, courts majorly use the case of Rich v Bishop Rock and That of The Nicholas H, Per Lord Steyn [1996] AC 211) IV to explain the issue of duty of care and that of liability on the defender. The paper will, therefore, explore the concept of the tort of negligence regarding the United Kingdom law by looking at the scenario of Kylie and her makeup company.

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In the case of Kylie, the requirements that are necessary for her to establish a claim against the makeup company is the proof that the company did not exercise duty of care (Van Dam, 2013).The offender was obliged to exercise reasonable care on the complainant. In this regard, the makeup company was responsible for the safety of Kylie by ensuring that the makeup used on her face was not harmful at all. It is evident that the makeup company was aware of Kylie's reaction to paraben and they should have exercised all the necessary steps to ensure that their client was safe from harm caused by the preservative (Van Dam, 2013). The company should have acted with reasonable care because they were aware of the client's situation after she gave birth. Kylie and the makeup company had a business relationship before, and after the complainant gave birth, the company was also made aware of the changes in her condition regarding a reaction to the makeup used. The three thresholds that stand regarding the duty of care is that harm was reasonably foreseeable and the company could have acted within reasonable care to avoid causing damage to the client. Kylie and the makeup company were having a business connection and because they were aware of their client's change of state in the use of makeup containing paraben preservative the company was responsible for her safety (Van Dam, 2013). The negligence arose from the use of the make brand without testing to ascertain whether it reacted with people allergic to paraben as they only relied on the advertisement. The argument is based on the neighboring principle, where individuals must take reasonable care in their omissions or actions on others. The makeup company is therefore liable for the damages caused to Kylie physically as she got a swollen face and economically because it affected her $250,000 contract of the photo shoot. According to English law, the neighbor principles require that a person should be cautious to evade any acts that might cause harm to others (Van Dam, 2013). After 1932 the principle applied whether a person was a neighbor or otherwise.

Another claim that constitutes to negligence against the makeup company is the breach of duty because they did not act reasonably like a prudent person would, by testing the makeup to confirm the absence of paraben besides it being advertised. In English law, the company should have acted under the reasonably prudent person capacity, and this means that they should have worked under circumstances that an average individual would act in a responsible manner (Muhametaj, 2017). Kylie can hold the makeup company responsible because they were under the law supposed to ensure that they exercise a duty of care to avoid injury to their client. The company breached the duty of care because they relied on the information of the advert and not acting, which was misleading as the product still contained paraben. There was a breach of attention because the client suffered as a result of the product not being tested to confirm the absence of the preservative, which was harmful to the client. About the lawsuit of "Donoghue v. Stevenson" (1932). Although Donoghue did not have a contractual agreement with the beer company, the court ruled in her favor because there was negligence on the part of the company based on breach of duty (Muhametaj, 2017). The law argues that all business is at risk of professional negligence in case their clients suffer harm or financial loss caused by products or services offered. Kylie can also hold the makeup company responsible for the loss of a contract that would earn her $250,000. She can demonstrate that the negligence led to the loss of the income using the deal she had with the magazine. Kylie could not be able to participate in the photo shoot because of her swollen face caused by the irresponsibility of the makeup business through the make containing paraben.

Similarly, another requirement to establish a claim against the makeup company is the proof of damages caused by the breach of care on Kylie. Firstly, there are two visible damages, and this is physical injury and financial loss. Because of the violation of care, the company used the makeup, which made the complainant who is allergic to have a swollen face. As a result of the swollen face, she could not be able to participate in the magazine photo-shoot, which would enable her to earn $250,000, and this is economic damage to her. About Ann v Merton LCB T[1977] UKHL 4, [1978] AC 728 he makeup company failed to test and confirm that indeed the product was free from paraben before using it on the client, and as a result, the client suffered damages which should be paid by the defendant. Furthermore, Kylie would also establish a claim against the makeup company based on foreseeability, where the consequences of the company's action or lack of it would result in injury. The company could predict the damage as they are required to act within the capacity of a reasonable person. They should have foreseen the harm that would be experienced by the client in case a test of the product was done before use.

Of the Most Appropriate Remedy Which May Be Available to Her

The primary treatment available for the negligence according to the UK edicts is the award of damages to the plaintiff or injunction. In this regard if the court finds beyond reasonable doubt that the makeup company was in breach of care and the injury was foreseeable then damages would be applicable and this entails restoring Kylie to the position she was before the injury occurred and also compensating her for the $250,000 that she lost from the contract with the magazine (Muhametaj, 2017). Her face was swollen, and she could not participate in a photo shoot, making her lose the deal. Kylie is, however, required to act within reasonable care to mitigate her loss as the court expects of her to avoid the issues of inflation of the damages in cost. She is likely to receive compensation on damages which will be specified in court and general damages for any financial loss that might occur in the future. The special damages rules explain that complainant is entitled to a compensation based on the loss she encountered caused by the injury about the case of Donnelley v. Joyce [1973] QB 454. Similarly, Kylie is entitled to pre-trial medical expenses, but she is expected to demonstrate that her medical expenses are reasonable (Muhametaj, 2017). It is important to note that the principle of compensation will also be adhered to by the court in a bid to reward her the damages. The remedy for general damages will enable Kylie to get the benefit for any amount of financial loss that is likely to occur in the future because of the injury suffered. Under the general damages, she is also expected to be compensated for the pain and suffering she encountered. Also, she can be awarded loss of amenity because of the physical injury on her face.

Of any defense(s) that may be used against her if she did not disclose the allergy to her makeup artist.

In the tort of negligence, there are three defenses against the complainant, and they include; "volenti non-fit injuria, contributory negligence and Ex turpi causa" (Goudkamp, 217, 2013). Regarding Kylie's case and the makeup company, the defense applicable is those of volenti no fit injuria and contributory negligence (Goudkamp, 2013). In defense of volenti non-fit injuria, the makeup company can be acquitted on the basis that Kylie was willing to undergo the makeup process with the said product and she, therefore, consented to the use of the make on her skin. Kylie was fully aware of the risk of the product, and it extends regarding injury (Goudkamp, 2013). The makeup company did not force Kylie to use the product, but she did it out of free will and consent. She had the freedom to use the product or not use it, given the effects she would have encountered in case the product contained paraben.

Kylie had room to exercise free choice regarding the use of the product in question. On the contrary, the defense can fail on the basis that despite Kylie accepting the makeup company to work on her face she did not consent on the use of a product that would be harmful to her. In this regard, the defense against the makeup company can fail.

Another defense against her claim is that of contributory negligence where if she did not disclose that she had developed an allergic reaction after getting her baby then the makeup company will not be liable to rewarding her the damages (Goudkamp, 2013). It would be argued that Kylie's negligence or failure to disclose her allergic reaction is what resulted in the injury. It would be treated as an act of omission on the part of the complainant. If Kylie did not disclose her allergic reaction to the makeup company before being given the services then she is will not be awarded any damages for the injury experienced. It is expected that disclosure is made before anyone gets any services.

It is important to note that for negligence to occur, four elements are involved and this include; "duty of care, breach of duty of care, damage resulting from the offense, and foreseeability" (Partington, p.237, 2014). Regarding the case of Kylie and the makeup company, she could sue the company for failure to be responsible and ensuring that the product is free from paraben. Negligence can be said to be carelessness, which results to harm on another person who has to be compensated for the harm caused. The English common law looks into the four elements to constitute negligence on both the part of the defendant and the complainant. In case the defendant is liable for negligence then remedy given to the complainant in the form of rewarding damages suffered from loss or injury. On the other hand, the defense against negligence can be experienced and the complainant may not be awarded damages in case they are become valid. Concerning the issue of Kylie and the makeup company defense based on volenti and contributory negligence is possible. Kylie can be awarded damages if the court gets sufficient proof of negligence on the part of the makeup company. She should also ensure that she prevents further damage from occurring by taking the needed precaution.

References

Bermingham, V., and Brennan, C., 2018. Tort law directions. Oxford University Press.

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