- Since this incident occurred due to negligence and no prior contract existed between the plaintiff and the defendant the Law of Tort becomes applicable.
- As per established norms in the Law the plaintiff must be able to prove that
- Defendant owed a duty of care
- Defendant breached that duty
- There was damage as a result
- If the three points are proven by the plaintiff, then following options of defence are open namely any one of the following: Consent, Contributory Negligence, Necessity or Illegality. The Limitation Act (1980) sets a period of six years for most general provisions for Civil Torts.
Explanation of the Law
- There is a three-step test to prove ‘Duty of Care.’ The first step is the Lord Atkins ‘neighbour test’ ruled in Donoghue v Stevenson AC 562. A neighbour could be anyone close enough to be affected by the defendant’s act, which would compel the defendant to avoid acts of omission likely to injure one’s neighbour. The second step specifies a tripartite test as ruled in Caparo v Dickman UKHL2:
- Was the harm suffered reasonably foreseeable?
- Was there a relationship of proximity between the parties?
- Is it fair, just and reasonable?
The third step would be not to make negligent misstatements that might cause economic loss to a neighbour as defined above.
- Breach of Duty. The court would examine whether the defendant has failed to do what a reasonable person has done or the converse. The first factor is higher the likelihood of injury, greater care should be taken by the defendant. The second factor would be the higher the extent of the likely damage; the more the defendant is expected to do to reduce the risk. The third factor would be a court decision to levy reasonable cost to the defendant. The fourth factor would be an assessment of the defendant’s social utility. The burden of proof here falls on the plaintiff, but where the negligence of the defendant is proved by the plaintiff, “res ipsa loquitur” comes into effect, in which case the burden of proof gets shifted to the defendant.
- The last point is to prove that there was consequential damage. The plaintiff must clearly prove that the act of the defendant would not have injured them but for the defendant’s act of omission also called ‘causation in fact’ (Barnett v Chelsea, 1968). Further, the plaintiff must prove that the defendant was able to foresee the type of damage and its result, called ‘causation in law.’ If not, the defendant cannot be held liable. The plaintiffs must prove Novus Actus Interveniens adjoining the two points above. Thus, if a new intervening act by a third party, which is unforeseen breaks the chain of causation the defendant can be relieved of the liability, an exception being when the act is foreseeable by the defendant, and he fails to prevent it. And lastly, the ‘eggshell skull rule’ is to be evaluated by the plaintiff that is an exception for the test of remoteness. If the plaintiff has some weakness that makes him susceptible to harm that is not reasonably foreseen, the defendant can still be held liable.
Applicability of the Law to this Case and Advice
- Duty of Care. As a defendant, Choc Delux has clearly failed the Atkins test, since the presence of the finger nail could be considered an act of omission that affected “a neighbour.” Secondly, on applying the tripartite test, we see that the harm was not reasonably foreseeable, although the plaintiff and defendant had a relationship of proximity (business relationship). The third point here, dependant on the court would be to impose a fair and reasonable liability to the defendant, if found guilty. The last defining clause of making statements that would bring economic loss is not applicable in this case, since the plaintiff has not suffered from a real economic loss. The cost borne by her can be covered under damages ordered by the court.
- The considerations of the breach of duty clearly indicate that this was a freak occurrence which nevertheless happened. The plaintiff can prove the second consideration on arguing that the company should have implemented better quality measures, and subsequent failure to implement such measures caused the injury. The third consideration requires us, in the capacity of the defendant to prove that we had done everything required to ensure that this should not have happened, but the incident still happened. The fourth consideration is not applicable to this case. There is a possibility of “res ipsa loquitur,” since the plaintiff has a reasonably strong ground for this clause based on the fact that the entire process from making the chocolate to delivering it was in the hands of the defendant. This accident would not have occurred had reasonable care been taken by the company in the processing of the product.
- Consequential Damage. The plaintiff can easily prove that she would not have been injured but for the defendant’s act of omission. Thus ‘causation in fact’ can be established. Secondly, with relation to ‘causation in law,’ can build on their earlier arguments, and argue that the type of damage was reasonably foreseeable given the act of omission, since this act of omission itself brought on the damage. The third provision of third party intervening is not applicable in this case. The fourth provision, even if it is applicable in this case will still stand in favour of the plaintiff.
- The company could use the defence of consent, wherein our company could argue that by accepting the box of chocolates Kim immediately consented to the contents of the box freely and voluntarily, and thus accepted the risk that came with the consumption of the chocolates. (Morris v Murray ) The other defence arguments are not applicable to this case.
- Remedies: If the company had to choose between damages and injunction, the choice would incline toward damages. It is better to pay an agreed upon sum as damages, considering the facts of the case and the law. An injunction may or may not be considered by the court, and if considered could put us at a disadvantage, should any other incident of a similar nature occur in the future. Further, the clauses of an injunction can possibly affect our business, and affect future cash flows. So its best to settle a one time damage amount, and get the matter behind us.
- Limitation Act of 1980 states that the defendant has a period of six years to file this case for consideration and trial.
Bibliography (Case Laws)
Barnett v Chelsea & Kensington Hospital Management Committee,  1 All ER 1068
Caparo Industries v Dickman  1 All ER 568  UKHL 2 (08 February 1990).
Donoghue v Stevenson  All AC 562  UKHL 100 (26 May 1932)
Morris v Murray & Anor  EWCA Civ 10,  All ER 80 (03 August 1990)
All of the above available at http://www.bailii.org/