Basic Principles of Tort Supported by Case Law.

Introduction This es show is an attempt to dismiss Changwa on the area of police force to a lower place which he toilet make for an challenge in run into of the concomitants given in the research. The essay allow for also attempt to advise Changwa with respect to the person against whom such(prenominal) action can be brought. In order to achieve this end, the essay will pay instigateicular assist to the salient cistrons he has to establish in the area of rightfulness identified, if at all he is to succed in his claim.The essay will conclude by looking at the likely effortfulies Changwa may encounter in come through in his claim in the event that he was to bring an action. The advice will be with the aid of refractory scales where incumbent. Area of Law and the Potential Defendant. In view of the situations given in this drive, the name of the area of law under which Changwa can bring an action is in the tort of slight. Accordingly, he moldinessiness bring thi s action firstly against the taphouse manhoodager for the cockroach establish in the nutrient. Secondly, the action moldiness be brought against the makers of the red booze.This is so because the pub manager is merely the retailer with no opportunity to temper with the circumscribe of the red wine. The law of inadvertence dates back as far as 1856 when Lord Baron Alderson in Blyth v Birmingham Water workings party gave a simple and precise definition of what constitutes negligence in the sideline terms Negligence is the omission to do somewhatthing which a logical man guided upon those considerations which ordinarily regulate the transport of human affairs would do, or doing something which a prudent and sound man would non do.It follows in that locationfore that negligence consists of either an act or omission on the part of the defendant. It is threadbare law that the tort of negligence has tercet essential elements, which either claimant must show in order to succeed in his action against the defendant. These three elements are existence of trade of wish owed to the claimant, breach of such transaction of carry off by the defendant and lastly the resulting vituperate to the claimant arising from the breach of the vocation of carry off .Each of the above elements of the tort of negligence will presently be discussed in turn. Existence of profession of care It is right away colonized law that there exists no all embracing tariff owed to the consentaneous world in all circumstances. However, the determining issue is whether a calling of care existed and whether it was owed to the particular complainant. The basis of the law of negligence is that the defendant owes the plaintiff a duty of care. It must be mentioned that the duty owed to a claimant is not imposed by contract exactly is one imposed by the law.The modern law as regards this aspect of the law of negligence was extensively canvassed in the celebrated case of Don oghue v Stevenson where the House of Lords were confronted with the general question of whether a manufacturer owed a duty of care to the ultimate consumer of his products and they proceeded to comport that he did. In that case, the plaintiff became ill after drinking powdered ginger beer from a bottle which removeed a decomposing snail in it. She had not bought the intrepid herself, so she was unable to rely on a breach of contract.In this regard, she sued the manufacturers of the beer under the tort of negligence, claiming that they owed her a duty of care. The House of Lord decided the case in the plaintiffs favour and the case is an means because of the rule of law laid down by Lord Atkin when he say thus The rule that you are to love your neighbour becomes in law, you must not injure your neighbour and the lawyers question, who is my neighbour? receives a confine reply.You must walk out comely care to avoid acts or omissions which you can reasonably foresee would be li kely to injure your neighbour. Who, and so, in law is my neighbour? The arrange seems to be persons who are so closely and now affected by my act that I ought reasonably to gestate them in considerateness as being so affected when I am directing my mind to the acts or omissions which are called in question This shew has been criticised as being too wide merely it made it easier for lawyers to compete that there should be liability for negligently causing slander in new patchs.Similarly, in Anns v Merton , the woo had the following to say concerning the duty of care In order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. quite an the question has to be approached in two stages.First one has to hire whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter in which case a prima facie duty of care arises.Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the insurance to which a breach of it may give rise In view of the above ex federal agency of the law, it is clear that firstly, the pub manager owes a duty of care to Changwa to check out that he is not harmed by the food prepared therein.Secondly, the manufacturer of the red wine ought to have the consumer in contemplation as a person who would likely be affected by the actions of the manufacturer. The above cases orient that the manufacturer and not the retailer, owes a duty of care to the consumer in instances where the retailer has no pow er whatsoever as to the confine or quality of a product. In view of this duty, a manufacturer in the position of the manufacturer of the red wine must take reasonable steps to run into that the drinks they produce do not contain any impurities which would be harmful to the consumer. Breach of Duty of CareA potential defendant will be negligent by dropping below the standards of the ordinary reasonable person in his situation, that is, by doing something which the reasonable man would not do or failing to do something which the reasonable man would do. According to the learned authors of English Law , if a duty of care is established as a matter of law, whether or not the defendant was in breach of that duty is a matter of fact. fifty-fifty if the plaintiff succeeds in showing that the defendant owes a duty of care, it is not sufficient for purposes of negligence unless a breach of that duty is shown .In decision making whether a defendant has acted negligently, the decision is b ased on an objective examine of what a reasonable man would do. The court will decide if the defendant fell below the standard of the reasonable man. The standard of care evaluate from this hypothetical character is objective not taking into account the characteristics or weaknesses of the defendant, as was aptly stated by the court in Nettleship v Weston . However, it must be mentioned that the courts expect people to take only reasonable precautions in guarding against harm to others, and this position of the law was affirmed in Latimer v AEC Ltd .In assessing what is reasonable under the circumstances, the court will consider the likeliness of harm occurring. The greater the risk of harm, the greater the precautions that will need to be taken, as was held in Miller v capital of Mississippi In the import case, the test would be whether a reasonable person in the position of both the pub manager and the manufacturer of red wine would have neglected to carry out an inspection of their products in order to ensure that the consumer will not be harmed by the contents thereof.The obvious answer to the above question is not in the affirmative but in the negative. In this regard, Changwa would successfully establish the second element of the tort of negligence against firstly the pub manager and secondly the wine manufacturer, although this in itself is by no means conclusive that the defendants are liable to the plaintiff. At this point, in order to succeed in the tort of negligence, he will because need to establish the third element of the tort of negligence, videlicet that he suffered damage as a result of the breach of the duty of care by the defendant. DamageThe learned authors of salesclerk and Lindsell on Tort call forth that it is important for the plaintiff in an action for negligence to prove the resulting damage to him from the breach of the duty of care. This is essentially premised o the fact that negligence is not actionable per se. It is nece ssary therefore for Changwa in this case, to show that he has suffered some harm, either physical injury, economic harm or psychological harm. This part of the elements of the law of negligence constitutes one of the difficulties that Changwa is likely to encounter in succeed with the claim.In Donoghue v Stevenson , the House of Lords arrange in favour of the plaintiff because she was able to show that she had suffered a intellectual or nervous infract after drinking the Ginger Beer in which a decomposed snail was imbed. It is now categorically clear that breach of duty of care is necessary but in itself and by itself not conclusive that the plaintiff will be entitled to damages. To this effect, resulting damage is essential in this regard. This qualifies the earlier point that negligence is not actionable per se but damage must be proved if a claimant is to succeed.The Zambian courts have had several instances where they have enounce themselves on this third aspect or element of the law of negligence. In Zambia Breweries Plc v Reuben Mwanza The respondent, Reuben Mwanza bought a bottle of a castle lager beer at a bottle store and this bottle was opened in his presence. He drunk half of the contents and he then felt as if he was choking and on examination of the bottle he found that it contained a dead lizard. The learned trial judge found as a fact that the appellants were negligent in the manufacture of the castle beer with a dead lizard in it and awarded the respondent K50, 000,000 as damages.The appellant then appealed against the excessive award of damages. The Supreme Court had the following to say in relation to the issue of damages We have considered the submissions on this head and we equip that the K50, 000,000 awarded in this area is excessive. In doing so we take into account the conduct of the respondent after discovering a lizard in his beer. Although the respondent stated that he was shocked with the discovery of the lizard, it is shocking to us that when he was offered some other beer, he quickly took it and consumed. There was no revolting reaction.Further, when he went to the Chilenje clinic he never revealed what has caused his illness so that proper diagnosis could be given. The reason of the court from the above sentiments is to the effect that there was no evidence to show that the claimant had suffered any harm, whether mental or physical thus the award was reduced. The court further stated thus the plaintiff has, therefore, a duty to bring credible evidence of illness. The award in this crying(a) case comes to us with a sense of shock as being wrong in principle and on the higher side.We essential to take advantage of this case to point out that in time to come nothing will be awarded if no proper evidence of a medical nature is conducted. Similarly, in Continental Restaurant & Casino LTD. v. Arida Mercy Chulu , the court had the following to say as regards the need to prove developed damage in an acti on for negligence The important point to stress, however, is that in cases of this nature, the basis of awarding damages is to vindicate the injury suffered by the plaintiff.The money was to be awarded in the instant case not because there was a cockroach in the soup, but on account of the harm or injury done to the health, mental or physical, of the plaintiff. Thus in the Donoghue case the plaintiff was hospitalised. Mild build is generally not enough a basis for awarding damages. The plaintiff has, therefore, a duty to bring credible evidence of illness. The award in this instant case comes to us with a sense of shock as being wrong in principle and on the higher side. We want to take advantage of this case to point out that in future nothing will be warded if no proper evidence of a medical nature is conducted. Furthermore, in the case of Michael Chilufya Sata v Zambia Bottlers Limited , claimant found a cockroach in the drink but had not up to now taken the drink when the cock roach was discovered. In a claim by the claimant, the Supreme Court of Zambia held to the effect that there was no injury or damage caused to the appellant by the adulterated drink as he did not consume it. Furthermore, the court noted correctly that negligence all(predicate) does not give a cause of action damage alone does not give a cause of action the two must co-exist.It therefore follows, that for Changwa to successfully claim damages, he must prove the actual harm suffered with respect to both the food and the red wine. CONCLUSION AND ADVICE In view of the explanation of the law that has bee done above, Changwa will now be advised as follows In view of the facts given in the question, he would bring an action in the tort of negligence. The person that Changwa should sue is the possessor of the restaurant for the fly found in the food. This is so irrespective of the fact that changwa is not the one who bought the food because the duty of care is not contractual but is impos ed by the law.In this vain, the pub owes a duty of care to Changwa. Secondly, Changwa can also bring an action for negligence against shaper of the red wine for the cockroach found in the wine. This is because in cases such as these ones where the retailer has no control on the contents of the wine, repair is had to the manufacturer, who is under a duty to take reasonable steps to ensure that the drink does not cause harm to the consumers who must be in the reasonable contemplation of the manufacturer. The tort of negligence comprises of three essential ingredients, namely duty of care, breach of duty of care and the resultant damage, which elements have been discussed in sufficient detail above. In order to succeed in the tort of negligence, the claimant must establish all the three elements. Changwa will easily prove the first two elements of negligence. However, he may encounter problems with the third element in view of the fact that it has not been shown from the question whet her he suffered any harm after taking the food which had a fly.The law on negligence demands that the claimant must substantiate the harm caused by the defendants breach of duty. This will be problematic for Changwa in view of the fact that he did not suffer any damage. Secondly, it will be difficult if not impossible for Changwa to substantiate his claim with respect to the red wine because he did not take the wine, thus clearly no harm was suffered by himself. In view of the collated explanations given in this essay, Changwa is advised accordingly. Bibliography Clerk and Lindsell. 2003. Law of Tort, 16th ed Cooke, J. 2003. Law of Tort, 6th ed. Liverpool Moores University.Rogers, W. 1994. Winfield and Jolowicz on Tort, thirteenth ed. London Sweet and Maxwell. Smith and Keenan. 1966. English Law, 2nd ed. London collier and Sons Cases referred to Anns v Merton 1977 2 All ER 492 Blyth v Birmingham Water Works Company 1856 11 Exch 781 Continental Restaurant & Casino Ltd. v. Arida Merc y Chulu S. C. Z. nary(prenominal) 28 of 2000 Donoghue v Stevenson 1932 AC 562 Latimer v AEC Ltd 1952 1 All ER 1302 Michael Chilufya Sata v Zambia Bottlers Limited SCZ No. 1 OF 2003 Miller v Jackson 1977 3 All ER 338 Nettleship v Weston 1971 3 All ER 581 Zambia Breweries Plc v Reuben Mwanza S. C. Z. NO. 39 OF 2000