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Published: Fri, 02 Feb 2018
Hypothetical case of tort action for negligence
A tort is a civil wrong, the essential hallmark of which is an action for damages. In English law, it means wrongful performance which caused the defendant liable in damages. The law of tort provides remedies for others’ behavior which causes people’s lives and interferes with safety, liberty, property and possessions in danger in Hong Kong. Negligence is one of the most important classifications of tort which is a conduct of the defendant that falls below the standard of reasonableness and causes personal injury or property damage to the plaintiff. In order to succeed in tort action for negligence, three elements are necessary: Duty of care, Breach of duty, Causation and damages. The following essay aims to analyze the hypothetical case with the mentioned points as specific as it can be.
I would like to outline the facts connected with the legal issues in the case first. Beauty applied the cosmetics bought by her sister Candy, which consequently caused itchiness on her eyelids and a rash to her skin. Beauty was diagnosed allergic to certain components of “Perfect Eye”, which had a warning of testing, but the cause of her skin rash couldn’t 100% be applying of “Plump Up” alone according to the doctor. All the mentioned cosmetics were purchased in a “Bride Perfect” shop in “Bridal Shopping Centre” and manufactured by “Marnier”. More terribly, many guests of the wedding banquet got sick with diarrhea after drinking the “Mango Cola” produced by a catering company called “Best Food”. Teena suffered a shock and developed a phobia for drinking liquids and refused to drink water. The carbonation level of the Cola was tested by doctors, resulting to be higher than used by the industrial standards.
As was mentioned above, damage is a necessary element to negligence, which means there must be a victim in a case of negligence. Thus the legal issues can be listed as below:
1. Can Beauty sue Candy, “Marnier”, “Bride Perfect”, “Bridal Shopping Centre” and “Best Food”for negligence of tort?
2. Can guests sue “Best Food”and Beauty for negligence of tort?
3. Can Teena sue “Best Food” for negligence of tort?
Analyzing and reasoning
Finding Duty of Care is usually the first step in a negligence case. Caparo’s three-fold test is applied widely nowadays, which was adopted by Lord Bridge in Caparo Industries plc v Dickman  first. It includes three elements: foreseeability; proximity; fairness, justice and reasonableness. In this case, Beauty just asked Candy to purchase some make up without limits. And Candy was told by the sales lady that the products she bought were bestselling and very popular. Candy couldn’t foresee that the products she bought would lead to Beauty’s injury when she bought them. So there was no foreseeability. Moreover, it was unfair to find Candy duty of care to Beauty. Beauty didn’t give Candy any limit before buying the make-up. Then how could Candy know that Beauty would be allergic to them. It would also against fairness, justice and reasonableness here. Though it was Candy’s purchase of the make-up that led to Beauty’s injury, which satisfied proximity, Candy wouldn’t have duty of care because the other two elements were negative. Thus Beauty couldn’t sue Candy for negligence of tort.
Product liability is another important point about Duty of care. If consumer’s life or property suffers any injury from products of manufacturer, manufacturer will usually be liable for that. In tort law manufacturers can be distributors, suppliers and retailers. The scope of “Ultimate consumer” has been extended to not only the ultimate user of an article but also the purchaser of an article. In this case, “Marnier”, “Bride Perfect”, “Bridal Shopping Centre” and “Best Food” were different kinds of manufacturers. Beauty and guests to the wedding banquet were consumers. In Donoghue v Stevenson  , Lord Atkin said “A manufacturer of products……owes a duty to the consumer to take that reasonable care.” Thus, there was no doubt that all the mentioned manufacturers had duty of care to Beauty. Now the concentration should be on breach of duty.
Firstly, let’s discuss about the suppliers, “Marnier” and “Best Food”. “Perfect Eye” may cause allergic reaction to some people and “Marnier” put a warning on it. Though it was in very small print, “Marnier” conduct its duty to print a warning. It was Beauty’s carelessness for applying it without reading the constructions. For “Plump Up”, whether there is causation between them must be considered. The test in determining it is “but for test”, that is, “but for” the defendant’s act or omission the injury or damage to the plaintiff would not have occurred.  If the damage would have happened anyway, then the act or omission on the part of the defendant is not a cause of the plaintiff’s injury or damage. Though there wasn’t any warning on the package of “Plump Up”, they were bestselling and very popular, which means that majority of consumers accepted it without anything wrong after using it. Doctors also couldn’t say it was the usage of “Plump Up” that caused Beauty’s skin rash. So there wasn’t causation between Beauty’s injury and application of “Plump Up”. Thus, “Marnier” didn’t have breach of duty in both situations and Beauty couldn’t sue it for negligence of tort.
However, conditions for “Best Food” would be absolutely different. The Consumers Goods Safety Ordinance (Cap 456) requires manufacturers, importers and suppliers of consumer products to meet a general safety requirement and the prescribed product standard. Doctor said the carbonation level of “Mango Cola” drink from “Best Food” had significantly higher level than used by the industrial standards. It was obviously that “Best Food” failed to perform their duty to test their products before selling to the consumers. There was breach of duty for “Best Food” and Beauty could sue it for negligence of tort.
Although guests to the wedding ceremony didn’t directly buy “Mango Coke” from “Best Food”, they could sue “Best Food” for negligence of tort due to their sick with diarrhea. Lord Atkin’s laid down famous neighbor principle in Donoghue v Stevenson  : “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor……Neighbor in law seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions.” That case added a new category of liability in negligence: manufacturers and consumers. Here the guests were neighbors of “Best Food” in law and “Best Food” had a duty of care to the guests. But due to omissions of “Best Food” for excess of carbon level, “Best Food” had breach of duty and the guests could sue it for negligence of tort.
Another general principle governing product liability is that “No possibility of intermediate examination”, which means that there should be no tampering with the product by a third party. A mere opportunity is not sufficient nor the fact that an examination could have been made. In Grant v Australian Knitting Mills Ltd  , the manufacturer was held liable because he had no reason to contemplate an examination by the retailer or ultimate buyer before use. In this case, “Bride Perfect” and “Bridal Shopping Centre” were third parties among manufacturer “Marnier” and consumer Beauty. According to the principle, the shop and the shopping centre didn’t have a duty to examine the safety or quality of the make-ups they purchased from “Marnier” before sold them to consumers. Thus they didn’t have breach of duty and Beauty couldn’t sue “Bride Perfect” and “Bridal Shopping Centre” for negligence of tort.
The principle is also applicable to the issue between Beauty and the guests. Beauty didn’t have a duty and possibility to check whether the carbonation level in the “Mango Coke” was higher than used by the industrial standards. Moreover, the tragedy happened in the wedding banquet wasn’t foreseeable for any reasonable person and of course nor for Beauty. So there was no foreseeability to find a duty of care from Beauty to the guests. Thus the guests couldn’t sue Beauty for negligence of tort without duty of care and breach of duty.
The final issue between Teena and “Best Food” draws into another point in duty of care—psychiatric illness. Until the 19th century, the view was that non-physical harm was not actionable for it was difficult to establish any link between the mind and the body  . Nowadays, damages could be awarded for psychiatric illness unaccompanied by physical injury with limits: the plaintiff’s injury must be a recognized psychiatric illness; the plaintiff must be either a primary victim, that is, within the range of potential physical injury, or a secondary victim who was not in the range of potential physical injury but suffered a reasonably foreseeable recognized psychiatric illness. Psychiatric illnesses are often called post-traumatic stress disorders (PTSD) which have some essential features, including “The person’s response to the event must involve intense fear, helplessness, or horror (Criterion A2)”.  In this case, Teenahas developed a phobia for drinking liquids and refuses to drink water, which satisfied the mentioned feature of PTSD. So Teena’s injury was a recognized psychiatric illness. Then let’s check whether Teena was a primary victim or a secondary victim or neither. In Alock and others v Chief Constable of the South Yorkshire Police  , the division of the two kinds of victims was given: a primary victim is in area of potential danger and suffers a psychiatric illness as a result of his own imperilment while a secondary victim isn’t imperiled himself but witnesses an accident caused by the negligence of the defendant. In this case, Teenawas in the wedding banquet, which was an area of danger to drink the “Mango Coke”, and was shocked after witnessing the symptom happened to the guests. So Teena was a primary victim because her psychiatric illness suffered in the area of potential danger. Then the two requirements to get damages for psychiatric illness were satisfied here. What’s more, Teena had a heart condition before the accident. So the Egg-shell skull rule in Smith v Leech Brain &Co  , which means that once the injury to the plaintiff’s person was foreseeable, the defendant is liable for all the damage irrespective of the condition of the plaintiff, was applicable in Teena’scondition and “Best Food”should be liable for Teena. Thus, Teena could sue “Best Food” for negligence of tort and get damages for psychiatric illness.
In this case, Beauty couldn’t sue Candy, “Marnier”, “Bride Perfect” and“Bridal Shopping Centre”for negligence of tort and neither could the guests sue Beauty for negligence of tort. Nevertheless, Beauty, the guests and Teena all could sue “Best Food” for negligence of tort and Teena could get damages for psychiatric illness.
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