Business Law and Ethics Negligence

Question: Write about theBusiness Law and Ethicsfor Negligence. Answer: Introduction: Negligence means failure to take proper care and causes injury or damage to other person. The plaintiff to prove negligence must fulfill that the defendant has failed to meet the standard of proper care for which the plaintiff has suffered injury or damage and such damage or injury cause breach of duty. Negligence arises from the breach made by the defendant on the ground of failing to take reasonable care to the plaintiff. In Blyth v Birmingham Water Works Co., negligence is defined as the failure to do or not to do anything, which a prudent person would do or would not have done. In case of negligence, the party who wishes to bring action must fulfill certain essential elements (Fisher 2015). Therefore, there are four elements to prove that the defendant was negligent. The elements, which prove the test of negligence, are as follows: Duty of Care: The plaintiff has to prove that the defendant has failed to perform his duty to take reasonable care, which any other normal person would have taken. (Chan 2016). Duty towards the plaintiff: The defendant is duty bound to take reasonable care towards the plaintiff. Breach of Duty to take care: The condition in case of negligence must prove that the defendant has committed breach. The defendant is responsible to take reasonable care and if he negligently omits his responsibilities then he must be liable for that. Damage or Consequential Harm: The negligent act of the defendant must follow damage to the plaintiff. The damage or injury may be bodily injury, harm to reputation, property and mental and economic. Duty of Care: The defendants failure to perform his duty to take proper care to the plaintiff makes the defendant liable under the law (Council 2013). In Donoghue v Stevenson, in the referred case the plaintiff and her friend was in a caf drinking beer. After drinking half of the beer, she poured the beer on her ice cream. As she poured the beer on her ice cream, some decomposed material came out of the bottle. The plaintiff sued the manufacturer of the beer. Judge Lord MacMillan held that the case falls under a new category of tort. Lord Atkin held in its decision to love thy neighbor. The decision defined neighbor as a person who are affected directly by the act of the defendant (Vines 2013). In the case of Caparo Indutries Pic v Dickman, there evolved a threefold test. The harm must be reasonable foreseeable, the cause must proximate and the liability should be just, fair and reasonable (Hussain and Abdullah 2013). The court put the test into examine to determine the responsible to take proper care. Donoghue v Stevenson is used as a precedent in the case of Grant v Australian Kniting Mills which is marked as a landmark case of negligence in Australia (Pathak 2015). In reference to the above-referred principles, the given case is of negligence. Charlene who conducted yoga classes in a dance hall for the US Service men conducts its classes on Tuesday and Thursday night. The floor of the dance hall was slippery and to protect her students from getting injured she bought some pairs of socks which will prevent from being slipped. Charlene used to provide each student the pair of socks before starting her yoga classes. On the day of the incident Skye arrived late in the class and finding no place, he had to take a position at a corner before the tea and towel table. Sky decided not to wear the socks and as he performed, her left foot skidded and the tea and towel table with hot tea and hot steam fall over her, for which she received burning injuries. This incident makes Charlen e liable for negligence on grounds that as a conductor of the yoga classes and knowing the fact that the floor is slippery she might have taken more care that each an everyone of her students wore the socks provided by her. Moreover, she should remove the table where Skye was performing the yoga postures before the hot tea and towel table. Therefore, Charlene is liable for the negligent act or rather omitted the duty of reasonable care. However, if we apply the test formulated the case of Caparo Indutries Pic v Dickman, it is proved that the harm was reasonably foreseen, and cause was proximate enough to make Charlene liable for omitting the duty to take proper care. Breach of Duty: The fact should settle that the defendant has the duty to take proper care towards the plaintiff, which he made a breach. The test to evaluate the breach can be subjective as well as objective. The subjective part is that the defendant knowingly made the breach and cause injury to the plaintiff. The defendant fails to perform the act which would save the plaintiff from the damage or loss caused, which a reasonable prudent man would have generally do (Rhee 2013). Thus, the test shall be objective or subjective depends on the particular case. In McHale v Watson, the plaintiff a 9-year-old girl was blinded for the act done by a 12-year-old girl. The court held that the defendant child does not have such level of foresightness or intelligence which an adult person will generally have (Burns 2013). In Donoghue v Stevenson, Lord Atkin was of the view that negligence has various categories and its area is not limited to a particular subject or scope. In Dorset Yacht v Home office, it has be en held that each member in the society has a duty of reasonable care towards others and their property (Epstein and Sharkey 2016). In Bolton v, Stone it has been held by the House of Lords that the defendant cannot be called negligent if the loss or damage has been made was not reasonably foreseen. Therefore, in the given case, both the subjective and objective test is to be applied (Goold and Maslen 2015). The subjective test determines that Charlene was conscious and knew and could reasonable foreseen that the place where Skye was standing and performing the yoga postures were not free from danger and accident may happen at any time. The objective test would determine that Charlene has the duty to take reasonable care, which she has omitted either by not removing the table of hot coffee and steam or ask Skye to wear the socks provided by her. The provisions of the CLA must go through the test in which it states that the risk or damage to be foreseeable, the risk should not be ins ignificant and precautions should have been taken by the reasonable or prudent person (Section 9 (1) of CLA). Factual Causation: The fact and the cause must prove that the act of the defendant was the cause of the loss. In this type, the basic test is applied where the injury has occurred only for the cause of the breach of the defendant. The High Court held that the but for test is an exceptional and is applied in case where the defendant has increased the harm to another. Contributory Negligence: This is a common law defense available with the defendant to show that the injury or harm caused has equal contribution of the plaintiff and the defendant. In Butterfield v Forrester, it was held that the plaintiff could not claim damages, as he too was negligent. In the given case, Skye was too negligent on the fact that he decided to not wear the socks and started doing the yoga posture. Moreover, he took three glass of wine before coming to the yoga class, in taking of wine amounts to intoxication (Abraham 2017). Therefore, the negligence is contributory where both the parties are equally liable for the injury caused. Damages: Damages are the compensation in monetary value. The victim shall be compensated as soon as the breach is found to have occurred. Damages applied in the given case are the Special Damages. The damages, which can be quantified in terms of money, are said to be special damage. The damages in the given case are quantifiable as the treatment cost of the victim Skye is quantifiable. Therefore, she is entitled to receive special damages. However, the plaintiffs action does not satisfy the defendant then the defendant may write a notice to the plaintiff to mitigate damages (Foley and Christensen 2016). Conclusion: This is to conclude that in the given case, Charlene and Skye are equally or rather contribute to the act of damage or injury caused to Skye. Negligence and its principles shall be applied in this case to provide compensatory benefit to Skye. Therefore, Skye shall take the actions as per the given guidelines under the law of tort as well as claim damages under the Civil Liability Act 2003. Reference: Fisher, M.G., 2015. Considerations of the dual role.Journal of perioperative practice,25(9), pp.153-154. Vines, P., 2013. The protected apology as the modern response to the moral question at the heart of Donoghue v Stevenson: What if Stevenson had apologised.Juridical Review: Law Journal of Scottish Universities,3, pp.483-500. Hussain, F. and Abdullah, N.C., 2013. Uplifting the Standard of Duty of Care towards Guests: An overview of recent developments in selected countries.Procedia-Social and Behavioral Sciences,101, pp.488-494. Pathak, A., 2015. Damages in a Consumer Sale Contract: Reviewing the Consumer Protection Bill, 2015. Burns, K.L., 2013. Its not just policy: The role of social facts in judicial reasoning in negligence cases. Epstein, R.A. and Sharkey, C.M., 2016.Cases and materials on torts. 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