Simon's case can be classified as a negligence case that resulted in injury. Simon had visited the restaurant to celebrate his new show. As a way of celebration, Kim offered to buy champagne as a toast for his new TV show. However, their celebrations were cut short due to negligence by the restaurant owner. Due to the negligence of the proprietor of the restaurant, Samuel suffered an injury that took him to the emergency room. Simon has a right to receive compensation from the restaurant owner under the law of the tort of negligence in the United Kingdom. The law of the torts of negligence was started so as to create a sense of liability among individuals on their need to take care of their neighbors. To advise Simon, one will first need to understand the law of the tort of negligence, its principles, and its elements. These will then be used to advise Simon on the necessary action to be taken. In this paper, I first explain what the law of the tort of negligence says and what it means. After that, I will use the law to advise Simon on his actions to sue the owner of the restaurant for damages.
Definition of Tort
A tort is defined as any wrongful act other than the break of contract or trust which then leads to damage or injury of others. Torts are legal wrongs where one person suffers in the hands of another individual (Charlesworth, 2011). In this case, the injured individual has the right to be compensated because of the wrongful act. In law, negligence is defined as any action that is controversial to what an average person would do (Stanton, 2007). It is a form of tort. According to French, (2012), negligence refers to the "legal cause of damage" when it continuously and directly leads to injuries or damage. It is assumed that if not for the negligence that was done, damage and injury could not have occurred. Sohn, (2013) states that negligence evolved as a result of the types of losses, injuries, or damages that occur between parties that have no contract among them hence cannot sue each other. The tort of negligence, therefore, states that one should be able to sue another person who has caused them a loss, damage, or injury even when there lacks a contractual relationship between them (Pandit & Pandit, 2009).
Elements of Negligence Tort
The tort of negligence originated in the 1930s in the case of Donoghue v Stevenson (French, 2012). The complainant was given a bottle of beer that had decomposing snails in it, and due to this, she suffered nervous shock. However, due to the lack of a contract between her and the manufacturer, she was unable to sue them. Because of this case, the House of Lords created a new principle where it required everyone to have a duty in the caring of their neighbor. The tort of negligence has three elements; duty of care, breach of duty, and damages (Wright, 2001). The above-mentioned author further explains that duty of care means that every individual should always take care so as to avoid doings or oversights that he/she foreknows can cause reasonable damage, loss, or injury to a neighbor. A neighbor, in this case, is any person that is directly affected by an act whereby one is supposed to put that person into thought as likely to be affected when carrying out the actions in question (Turton, 2012). To prove that there is a duty of care, the plaintiff must show that there was the proximity of relationship between him and the defendant. He further adds that the plaintiff must show that the injury or damage was foreseeable by the respondent and if it is fair and reasonable to impose this duty on the defendant (Rickman & Fenn, n.d.)
Standard of Care in Tort of Negligence
During legal proceedings, one must prove the presence of standards of care. Turton, (2012) explains this by writing that it should be decided if the offender owed the plaintiff a standard of care and the level of standard of care unsettled to the complainant. It has also been stated that checking whether any other reasonable person in the same field and position as the defendant would do a similar act is also necessary. Damages or injuries that happened should be caused directly by the breach of the duty of care by the offender. The breach of the standard of care should, therefore, be proved by regarding the injury and checking how likely it was to happen, the severity of the injury, and the efforts required to remove the risk of injury (Wright, 2001).
The Tort of Negligence Case
In the said case study, Kim had a contract with the restaurant owner as she was the one who bought the Champaign and asked it to be opened for a toast. However, the restaurant owner was unable to control the cork of the bottle which ended up harming Simon who was there only as a friend to Kim as well as a client to the restaurant. The issue, in this case, is whether the owner of the restaurant had the duty to ensure the cock does not harm any person within his proximity. It is widely known that opening Champaign can easily cause injury to a person close by, it is, therefore, the duty of the person opening the champagne to protect his/her neighbors from this by doing so in a manner that is careful. Similarly, business owners are entitled to a duty that ensures reasonable care is put in place that protects their customers or clients from any injury (Sohn, 2013). Reasonable care, in this case, refers to the eliminating or the warning of customers on foreseeable risks about which the owner of the business should have known about or already knew (Stanton, 2007). It has further been stated in states that in case a business owner fails to put in place appropriate degrees of care towards his/her clients, causing injuries, and the business owner has breached the duty of care and is, therefore, liable to the client for his or her injuries (Sohn, 2013). In this case, the owner of the restaurant had the care of duty to Simon as his customer as well as a neighbor to prevent any damage or injury as a matter of negligence. The restaurant owner knowing the risks involved opened a bottle of champagne without taking the necessary actions which resulted in an injury to Simon. Here, the owner of the restaurant went against the law of tort of negligence as a business owner and as an individual with the duty to care for his neighbors.
In this case, Simon can sue the restaurant owner for liability against his dental injuries. However, Samuel must first prove that the duty of care existed (Wright, 2001). To do this, Simon must show that there was a relationship between him and the restaurant owner so as to prove that there existed a duty of care. About the Nagle v Rottnest Island Authority 1993 case (French, 2012); such a relationship is determined using the concepts of nearness or closeness that is either physical, circumstantial, or causal proximity. Simon can argue that there existed a proximate physical relationship between him and the restaurant owner. Their relationship was, therefore, proximate enough to give rise to a duty of care between the two individuals. The issue of duty of care henceforth brings a test for common knowledge and reasonable foreseeability (Pandit & Pandit, 2009). Simon can first argue that the restaurant owner should know the risks involved with opening a champagne bottle. At the same time, Simon can still claim that the restaurant owner could have foreseen the likely risk of him not being able to control the cork of the champagne bottle and therefore issued a warning to Simon as his client. The lack of issuing the warning by the restaurant owner shows that there was a breach of duty due to negligence.
To prove that there was a breach of the duty of care; Simon can argue and prove that any ordinary and reasonable person could have taken necessary actions to prevent such an injury. The risks involved in opening a champagne bottle are common knowledge. Simon can further argue that as an owner of a restaurant, the plaintiff should have been able to foresee this risk and therefore taken necessary precautions to prevent the injury. Simon can then state that it was due to negligence or oversight by the restaurant owner that his injuries happened. He can argue that the restaurant owner should have acted reasonably and taken precautions or even issued a warning to his clients on the risks involved.
Risk and Degree of the Injury
In regards to the law, a balance between the risk degree and the likelihood of injury against the expense and difficulty of taking precautions must be reached (Rickman & Fenn, n.d.). In some cases such as the Bolton v Stone 1951 case; if the likelihood of injury is insignificant, the perpetrator may be entitled to disregard it (French, 2012). On the other hand, if the point of injury is severe and the rate of taking provisions is small, the culprit is required to take suitable action so as to reduce the risk. This is seen in the Paris v Stepney Borough Council case 1951 (Pandit & Pandit, 2009). Regarding this, Simon can argue that there were no costs involved in taking precautions. He can state the restaurant owner did not have to use any cost to prevent this injury from happening. At the same time, Simon can prove the risks involved while opening a champagne bottle. He can give examples of some of the injuries that have occurred due to this action and make known the gravity of the injury. As much as the risk of getting injured is small, the degree of the injury caused is great against no expense needed in taking necessary precautions. To prove this, Simon can show the court the receipts of the 20,000 expense he had to incur for dental repairs resulting from the injury. This can be compared to the no expenses needed by the restaurant owner in taking precautions to prevent this injury.
The Tort of Negligence: Damage
In negligence, the damage is an essential part (Charlesworth, 2011). This is where the plaintiff must show that if not for the negligence of the defendant, the damage could not have happened. In other words, the complainant must prove that it's the defendants' negligence that caused the damage. In Simon's case, the restaurant owner can argue that the injury could have been too remote and that it could have happened even with him taking the necessary precautions. Here Simon can counter and state that the restaurant owner should have issued a warning whereby in the case of the risk happening, Simon would have been alert and ready to prevent himself from getting injured. Simon can state that his dental injuries could not have occurred if the restaurant owner could have taken precautions as well as issued a warning on the risks involved.
In summary, the law of tort of negligence is applicable where a defendant has caused harm to a plaintiff when there is no contract between them. The law stipulates that when a person causes an injury of any form to another individual due to negligence, he or she is liable for the person's injuries. In business, it is the duty of the owner to prevent his clients from any form of harm or injury. In Simon's case, he was a customer of the restaurant and ended up getting an injury due to the negligence of the owner of the restaurant. He ended up spending 20,000 in damages for dental repairs. In my advice to Simon, I would first assure him that the owner of the restaurant is liable for his injuries and he has the right to sue for damages. I would further guide him on what the law of the torts of negligence states in the United Kingdom and give him a breakdown of the points he should use to argue his case.
Charlesworth, J. (2011). Charlesworth and Percy on Negligence. Sweet & Maxwell.
French, M. P. (2012). Donoghue v Stevenson and local authorities: can the tort of negligence be built on shaky foundations? A New Zealand perspective.
Pandit, M. S., & Pandit, S. (2009). Medical negligence: Coverage of the profession, duties, ethics, case law.
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