Theorizing Damage Through Reproductive Torts

Essential Requirements of the Law of Tort

Discuss about the Theorizing Damage Through Reproductive Torts.

Trevor is the owner of and takes people on tour walk in Bunya Mountains. Anna went on a walk, fell down, and hurt her under the consumption of wine. Anna wants to sue Trevor on grounds of negligence. Is Trevor liable?

Rules: English Law of tort embodies a person’s civil liabilities towards one another. When one person breaches the duty of care towards the other, he faces liability for negligence (Chamallas 2015).

According to the law of tort, there are few essential requirements as to it:

• Breach of duty
• Duty of care
• The harm must not be too distant a corollary of breach
• Breach causing harm in fact

Duty of care stands for the fact when a person is held liable for his act which in turn has caused harm to another person. The extent of care should be such that the injured person finds it appropriate. In the Court of law the injured person should prove that he has faced injury and is liable to damages. There must be existence of contractual relationship between two individuals for the duty of care to exist. Here the manufacturers did not have a contractual relationship with the consumers but still owes a duty of care towards them (Keating 2015). According to Theory of social contract the individuals in a society owes a sense of responsibility towards each other. In the Donoghue v Stevenson [1932] AC 562 the concept of negligence was clearly defined and established. It is the landmark judgment in tort of negligence. The House of Lords apprehended that a person will owe a duty of care towards the other in the journey of their action (Deakin, Johnston and Markesinisc 2012). In accordance to this, let us take into consideration the famous case of Donoghue v Stevenson [1932] UKHL 100, which lays the foundation of English tort law and Scot Delict law by the House of Lords. In this case, tort of negligence and duty of care is established. When we look into this particular case, Donoghue buys a bottle of ginger beer from a shop. She drinks the beer and falls unwell; because there was a dead snail in the bottle of beer which she neither was aware off . Even the shopkeeper from whom she bought the beer was unaware of it. Donoghue decides to sue the ginger beer manufacturer, Stevenson as in this situation she could not sue the shopkeeper, who was even unaware of the fact. When put before the House of Lords it was decided that, the manufacturer was at fault and he owed a duty of care towards the consumer. The manufacturer breached duty of care and is it foreseeable because it’s the duty of a manufacture to ensure the quality of a product, which may cause harm to consumers on consumption. Previously, before Donoghue v Stevenson it was held that where there is personal injury inflicted on a person whether directly or indirectly is not liable in tort of negligence. It was held that consumption of a noxious substance which caused injury to the consumer is liable not to tortuous claims. However, in this case a substantially different decision has been taken where it was held that Donoghue is liable to tortuous claims not the grounds of strict liability (direct physical contact that requires bodily injuries) but common law of tort and delict. Donoghue was liable to claim damages for injury under Tort of negligence. Lord Macmillan in this case held that law would not be liable for claims abruptly. Where there will be a carelessness, which has caused damage then only the duty of care will arise. In this scenario, Lord Macmillan said that the manufacturer should not have kept the bottle in a place where snails could have an access to it. It was also said in this case that the consumer and the manufacturer is in a contract of sale. Though Donoghue is not by contract of sale by the manufacturer, her friend was, so Donoghue was liable to claim damages for negligence. Thus, Stevenson being the manufacturer of food and drink Company owes a duty of care towards the consumers who faced reasonable injury, which is enforceable by law. Therefore, it is held in this case that the appellant was liable to damages arising out of injury and there was breach of duty of trust on part of the manufacturer, which makes him liable (Eades 2015).

Landmark Cases in the Law of Tort

In the case of Home Office v Dorset Yacht Co Ltd [1970] UKHL 2 the court enlarged the extent of negligence and the duty of care towards the individuals. In the case of Anns v Merton London Borough Council [1978] A.C. 728 the House of Lords provided the investigation of theory of negligence and duty of care. The test is referred to as the Anns Test or the two-stage test (Guay and Cummins 2013). Many countries apply this test in dealing with cases relating to tort of negligence. These two conditions are used to see the duty of care that exists between the defendant and claimant in relation to the closeness of foreseeing the situation and considering the fact that there should have been a duty of care among the individuals (Eggen 2015).

In the case of Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078  it was held by the Court that the defendant was not found guilty of negligence and even there was not breach of duty on part of the defendant. The damage that was faced by the plaintiff is not something, which was foreseeable act in the course action of the defendant. The cricket ball, which hit Mrs. Stone while she was standing outside her house did hit with sufficient force that could cause damage to a person. The learned Court held that the plaintiff is not liable to damages because the situation that arise could not by any means was foreseeable danger (Gifford and Robinette).

Contributory negligence is the law in which if the injured party did a failure on his part and act prudently it will be considered to a contributory injury that he had suffered. In law if a person is not at fault he will not be liable to pay damages. Yet again let us consider the case of Nettleship v Weston [1971] 2 QB 691, where Nettleship is the plaintiff and Weston is the defendant. The plaintiff was promised to teach Mrs. Weston to drive her husband’s car. In one of a situation, it happened that the defendant not having good driving skills met with an accident, which caused harm to the plaintiff. The defendant now argued that the court should make allowance for her as she was not an expert driver. The Court of Appeal consisting of Lord Denning MR, Salmon LJ and Megaw LJ said that as the driver was inexperienced and did not have proper driving skills raises the question of complicated shifting standards. Salmon LJ held that in a situation where the plaintiff was aware of the fact that the defendant did not have proper driving skills makes the plaintiff responsible of the accident. Furthermore, the instructor is always in partial control of the car and should be well aware of the skills of the driver. Thus was held that the plaintiff was liable to damages due to contributory negligence (Goudkamp and Ihuoma 2016).

Application to a Hypothetical Case

Application: In our case of Anna and Trevor, we see that there has been contributory negligence. When we apply the case of Donoghue v Stevenson, we see that that there was negligence on part of the manufacturer of beer and thus he was liable to pay damages. The manufacturer of a Company owes a duty of care towards his consumers. Thus, the manufacturer was liable to pay damages to the plaintiff who suffered injury. However, in the case of Anna and Trevor there was contributory negligence on part of Trevor. To develop this we consider the case of Bolton v Stone where the defendant was not liable to pay Mrs. Stone because the incident, which took place, was not something, which could be easily foreseeable. In the case of Nettleship v Weston the court held that the plaintiff was liable to contributory negligence. The incident was something, which was not foreseeable but the plaintiff was in partial control of the car and should have shown enough care because the defendant was learning driving and the car should not have been in his control totally. The instructor was in partial control of the car so is liable to pay damages under contributory negligence (Little et al. 2014). 

When we apply these case studies in the case of Anna and Trevor we see that Trevor is liable to pay damages under the rule of contributory negligence. Trevor had a duty of care towards the people he has taken for the walk in the hills especially at the time when he it was already dark and he knew people faces accident in the dark while walking in the jungle. Anna should have worn heels and short skirt when it was directed by Trevor not to wear such clothes and shoes. She faced an injury also because of negligence on her part. Trevor is liable to pay contributory damages. Moreover, she was under the consumption of alcohol and feeling tipsy and she feel down. Had she not consumed alcohol she would not faced the accident like a person of prudence.

Conclusion: Anna is liable to get damages from Trevor based on the law of contributory negligence. He liable to pay damages because he owed a duty of care towards the people he had taken for a walk.

References:

Chamallas, M. (2015). Theorizing Damage Through Reproductive Torts. Jotwell: J. Things We Like, 88.

Deakin, S. F., Johnston, A., & Markesinis, B. S. (2012). Markesinis and Deakin's tort law. Oxford University Press.

Eades, R. W. (2015). Torts Involving Personal Property (Vol. 1). Jury Instructions on Damages in Tort Actions.

Eggen, J. M. (2015). Mental Disabilities and Duty in Negligence Law: Will Neuroscience Reform Tort Doctrine?. Indiana Health Law Review, 12, 591.

Gifford, D. G., & Robinette, C. J. (2014). Apportioning liability in Maryland tort cases: Time to end contributory negligence and joint and several liability. Maryland Law Review, 73, 2013-61.

Goudkamp, J., & Ihuoma, M. (2016). A Tour of the Tort of Negligence.

Guay III, G. E., & Cummins, R. (2013). Tort Law for Paralegals. Pearson Higher Ed.

Iacobucci, E. M., & Trebilcock, M. J. (2016). An economic analysis of waiver of tort in negligence actions. University of Toronto Law Journal, 66(2), 173-196.

Keating, G. (2015). Is Negligence Law Less Objective than We Think. Jotwell: J. Things We Like, 137.

Little, J. W., Lidsky, L. B., O'Connell, S. C., & Lande, R. H. (2014). Torts: Theory and Practice. LexisNexis.