|Type of paper:||Case study|
|Categories:||Court system Social justice Human rights|
Negligence is understood as the aspect of not applying reasonable care especially when in the line of duty. The Tort of Negligence is a legal crime that is experienced by an individual at the expense of another person who is not cautious to avoid what a reasonable individual would term as a foreseeable risk. The law of tort involves a broad range of circumstances; for instance, in our case, the nanny is injured by the pram due to the negligent of the manufacturers. Other situations involve a traveler wounded in a road accident, wrongful detention of citizens by police, a patient hurt by a careless physician among many others. In most instances, there will be a predetermined agreement between the parties involved such as the employer and employee, or a physician and a patient (Woods, Watson & Costa, 2017). These contractual relationships will play a significant role if the claim for negligence is to succeed. Notably, civil law involving negligence has advanced to the extent of handling situations that are formed between two or more parties even in cases where there is no contract, written or implied.
When a tort is reported, the law allows the victim to be compensated for the damage caused. The compensation is done by the individual who made the tort also referred to as the tortfeasor. Consequently, other rewards may be available but in most instances, the victim will only be compensated provided they ascertain that the related tort has been committed (Horsey & Rackley, 2015). For example, the landowners can claim damages in tort from an individual invading on their land despite there being no damage has been caused by the trespasser. Therefore, tort law involves personal injuries whereby when an individual violates the rights of another individual can ultimately cause legal liability. It is essential to note that damage could comprise of financial loss, physical destruction to assets and personal injury.
The aspects of negligence involve a duty of care; violation of the duty of care; causation, for instance, the causal connection between the person's damage or property destruction as well as actual damage either to an individual or to property (Steele, 2014). It is vital to note that, the first activity will be to ascertain whether there is a duty of care between the victim or the injured individual and the person liable for the damages caused. Notably, there are two subdivisions of duty of care; they are characterized by the responsibilities recognized by the law and the ones created by a particular situation (Barravecchio, 2013). In circumstances where the legislation has not enacted duty of care, there is the application of the foreseeable claimant even though the duty is not granted to the public but only to a person within the range of the risk developed to the foreseeable victim. This paper will seek to examine the case of Kylie's Mum, Kris, and the nanny to have a clear understanding of the tort of negligence.
Kylie's Mum, Kris vs. the Nanny
This work is required to provide insights or sufficient advice to the case Kylie and her newly employed Nanny. Kylie is excited to return to work where she works as a business mentor on Simon's TV show. Thus, this means that she has to look for a new nanny who will be taking care of the baby so that she can focus on the job without being concerned about the baby. On the other end, Kylie's mum Kris buys her a new and costly pram for the baby. The nanny decides to take a walk in the local park for the first time with the baby. After the arrival at the park, the nanny makes a stop along the pond so that she can show the baby the ducks swimming. However, as she puts the brakes on, a cable snap and causes a deep cut to the hand of the nanny which requires surgery. This implies that she will be admitted in the hospital for a week and she will not be able to attend the planned vacation with her own family which would have cost PS4,000.
Understandably, the nanny cannot sue the manufacturer for the malfunction caused by the pram since she did not enter into an agreement with the manufacturer. Instead, Kylie's mother, Kris entered into a contract with the manufacturer or the people who sold that item to her the moment she agreed to purchase the pram at a high cost. A deal is an understanding among two or more parties that are supposed to be legally established as required by the law. This will enhance the developments of agreements that can be enforceable by law. The principle of tort holds that business owners or manufacturers should be liable to customers for their faulty commodities which end up causing damages to the buyers (Iacobucci & Trebilcock, 2016). The UK law holds that all employees in spite of their field or profession, function within a legal and ethical context of some kind. This implies that all workers including child-help personnel work within the boundaries outlined by the applicable principles and ethical standards.
The Right of Action under the Tort of Negligence
In our case, the victim (nanny) has a right of action under the Tort of Negligence as stipulated by the UK law. When buying a commodity for use, the consumer has the realistic anticipation that it is going to be safe when operated the way it is indicated. However, this was not the case when Kris purchased the pram since it ended up causing an injury to the nanny. According to the General Product Safety Regulations (GPSR) along with the Consumer Protection Act (CPA), producers and distributors are prohibited from supplying or marketing commodities that are unsafe to the consumers. The work of such agencies is to safeguard the society from damages or irrational dangers or death linked with the use of different types of customer products under the laws formed.
Therefore, it is apparent that the victim is liable for action through negligent tort lawsuits due to the injury caused by the product bought from the distributors. This will be achieved after an examination of the four elements of negligence in line with the commodity that is responsible for the damage. In this scenario, the manufacturer has duty care for the customers who buy and use its products. Therefore, since the nanny received injury through the fault in the pram, the law allows her to take action against the distributors and be rewarded for the damage caused after establishing the manufacturers' liability. This is because the negligence from the producers directly affected the well-being of the nanny to an extent she is not able to perform her duties or participate in the family activity she had planned to attend (Greene, 2017). The victim must prove that the breach of the pram caused the injury since this is a requirement under the law of negligence. Thus, this case, it is well established that the pram caused the injury after trying to apply brakes and the cables snapped causing a deep cut to the nanny's hand. Since all the aspects in tort law are served, then the nanny has a sufficient legal right to take the case to court.
Legal Remedies Available for the Nanny
Negligence is significantly incorporated with the aspect of compensating persons who have suffered damages caused by the sloppiness of other parties. One of the primary tactics in which access to compensation is regulated is through the concept of duty care (Bermingham & Brennan, 2014). This means that this is a legal notion which outlines the situations in which one party will be responsible for the injuries caused to another party. Therefore, in the case of the nanny, if the law confirms that she does not have a duty of care towards the manufacturers who have caused damage to her, then she will not be compensated regardless of the seriousness of the injury. It is essential to acknowledge that, common tort cases in the court system depicts a strong perception that the offender is obliged to offer a duty of care to the petitioner; thus, the court will be interested in ascertaining if the petitioner can demonstrate that the defendant broke the duty care (Priel, 2014).
A duty of care is compulsory when it comes to the issue of legal subjects, and it can be enforced on a person. The remedy entails reasonable care while performing any acts and should eradicate any foreseeable actions which are likely to cause damage to others. An example is the sale of pram by the manufacturer. The consumer expects the producers of that commodity to ensure the safety of the users. In cases where there is a breach of duty like in this case, the law holds that the manufacturer will not be held accountable unless the claimant proves that she had the right to the duty of care (Goudkamp, 2017). Once the right to a duty of care is confirmed to have been breached, then the victim will be compensated for all the damages and losses incurred.
Nevertheless, if the victim is proved to be aware of the risk but did not consider taking relevant measures, then the compensation will also be reduced. This is termed as the contributory negligence from the victim. The court may also not provide the victim any payment if it is identified that the user or the buyer signed a consent form that pointed out that the equipment might not provide safety during its usage. In that, some industries are known for using contracts that depict that the procedure is not guaranteed to generate the needed outcome (Geistfeld, 2011). If the buyer signs such a document he is not likely to succeed in the claim for whatever injuries caused.
Best Way to Proceed If She Wishes To Avoid Court Action
There are common law expectations that a party can restrict its liability caused by the defective products through the method of using contractual terms that reduces or eliminates that liability. However, the Consumer Protection Act does not support limiting or excluding liability for injuries caused by a defective commodity whether through a notice, contractual means or any other provision. Therefore, if the victim wishes to avoid the court action, she can report the issue to the Consumer Protection Agents who will enforce statutory limitations that will ensure such cases are experienced again in the future. In that, the agents can prohibit manufacturers from using contractual policies that will limit liability that is suspiciously prejudicial to a buyer.
Moreover, the victim, through the help of the Consumer Rights Act, can make use of the minimum statutory warranties that cannot be contracted out. This implies that Kris has the right to reject the pram and get full reimbursement within the next thirty days. On the other hand, the consumer is entitled to request the relevant distributors of the product to replace or repair the broken pram. This is done after the buy proves that the product was defective during the time it was bought. In a situation where the repair is not sufficient, then the buyer should be given a refund, or if she wishes to retain the pram, then the price should be lowered to cater for the damages caused (Woods et al., 2017). Thus, these are some of the rights entitled to the consumer if he or she decides to avoid court action.
To sum up, the objective of this essay was to provide an analysis of two tort negligence by using the case of Kyle's mum and the nanny where the pram caused an injury on the nanny. Thus, the report includes advice on what the nanny should do to be proven for a successful negligent tort lawsuit. Additionally, consumer protection agencies were analyzed in case the victim would want to avoid court action. The information provided in this essay enhances the understanding of the primary elements of two tort negligence as a legal action.
Barravecchio, J. A. (2013). The Tort of Negligence. Legaldate, 25(4), 4-7.
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