Critique of Natural Law

COURSE: OBLIGATIONS 2 (TORT LAW)

PART A (1): Matins UK are the producers of a health drink called "Carrot Calm" which is made essentially from carrots and milk. It is especially aimed as a supplement for women during pregnancy but has also become very popular with dieters. In the last year or so there have been a number of reports of food poisoning linked to the consumption of the drink. Scientific studies have shown that this is very likely due to the fact that the carrots used in the drinks are unpeeled. This aspect of the drinks production process is widely known, indeed, Matins made this fact part of their publicity. John, who is self employed, was forced to take a month from his work as a design consultant as a result of food poisoning and lost Ð'Ј5,000 in fees. Jan and Erica, who both took the drink during pregnancy claim that they suffered acute anxiety after publicity over the harmful effect of the unpeeled carrots. The drink has been in circulation for 6 years and convincing evidence linking the food poisoning with unpeeled carrots has emerged within the past 18 months.

PART A (2): "Imelda worked for one of the few remaining coal suppliers until she retired on grounds of ill health in March this year. She was, for the 15 years of her employment, involved in mainly manual work, loading coal into bags and trucks for delivery to the firm's many business an private customers. Six months before she retired, Imelda discovered she had lung cancer. Her father and grandfather had been heavy smokers and had both died of lung cancer. Imelda was a Ð''social smoker'. Imelda's union representative advised her that several scientific studies had linked lung cancer to exposure to coal dust. Such studies suggested that employees could alleviate such risks by allowing employees 30 minutes of fresh air after every three-hour shift."

Advise the various parties as to their rights and obligations in tort.

SEMINAR GROUP: F

SEMINAR TUTOR:

LIABILITY OF PARTIES

As a manufacturer of a product the first point is to determine whether Matins owed a duty of care to John and Jan and Erica. If they do the second stage would be to determine whether there was a breach of this duty. It may also be possible for them to be liable under product liability that relies not only on statutory provisions but also common law. To advise each party it is important to look at the facts of the case and then establish which way a claim can be raised through negligence or product liability in Tort Law.

NEGLIGENCE

Negligence in tort can have two different meanings, the first being a way of committing certain acts meaning carelessness; or it can be and independent tort. This is defined as a breach in legal duty to take care which results in damage that is undesired by the defendant. It has three main elements in tort law:

1) The defendant must owe the claimant a duty of care

2) The defendant must breach this duty

3) Damage must have been caused by the claimant by the defendant's breach and such damage must not be too remote

The current test of whether a defendant owes a claimant a duty of care is set out in a tripartite test where all three elements must be proved in order to establish liability. This test was formulated by the House of Lords in Caparo Industries plc v Dickman . This developed from a general principle laid down in Donaghue v Stephenson was that you must take reasonable care to avoid any act or omission which you can reasonably foresee would be likely to injure your neighbour. In law your neighbour is anyone who is so closely and directly affected by your act that you ought to have reasonably thought about them when you are directing you mind to the acts or omissions being called into question. This was developed further by Ann's v Merton London Borough Council which developed a two-tier test in tort which expanded the scope of negligence considerably but also became subject of much judicial criticism. This lead to the current three-part test or incremental approach set out in Caparo. This test considers the following elements necessary:

1) The damage must be foreseeable

2) There must be proximity in the relationship

3) The imposition of duty on a defendant must be just, fair and reasonable

If a claim was launched by either John or Janet and Erica they would have to prove all the components of the Caparo test. It is easy to show there was forseeability as it is expected that the production of Carrot Calm will be bought by a customer, which is an individual who would be affected by any poison put into the product. The proximity test is satisfied referring to legal proximity as there is a relationship of proximity if the product causes injury where a manufacturer and purchaser are concerned. Whether the imposition of duty would be just fair and reasonable would be debatable as the effects of food poisoning could be something that affects many people who have bought Carrot Calm, allowing a claimant to succeed may open the floodgates for much more litigation and may be something that the Courts feel would extend the scope of liability too much. To advise the parties it may be necessary to look for additional ways successfully make Matins' liable in law.

PRODUCT LIABILITY

Liability in law could also fall under product liability where both common law and statute protect the consumer. Donaghue removed the privity of contract fallacy by making a tortious duty of care independent of a contractual relationship. For the purposes of common law products are not limited to just food and drink but can apply to any item capable of causing damage , but this is subject to qualifications. A warning on the product may discharge the manufacturers' duty of care As stated by House of Lords in Donaghue manufactures owe a duty to the ultimate consumer, which means anyone who can be reasonably forseen will be harmed by a defective product .

Product liability also offers remedies under strict liability through the passing of the Consumer Protection Act. The general principle of this Act is found in s2:'where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) applies shall be liable for the damage'. Subsection (2) applies to the producer or anyone

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