This essay is an attempt to advise Changwa on the area of law under which he can bring an action in view of the facts given in the question. The essay will also attempt to advise Changwa with respect to the person against whom such action can be brought. In order to achieve this end, the essay will pay particular attention to the salient elements he has to establish in the area of law identified, if at all he is to succed in his claim. The essay will conclude by looking at the likely difficulties Changwa may encounter in succeeding in his claim in the event that he was to bring an action. The advice will be with the aid of decided cases where necessary. Area of Law and the Potential Defendant.
In view of the facts given in this case, the name of the area of law under which Changwa can bring an action is in the tort of negligence. Accordingly, he must bring this action firstly against the pub manager for the cockroach found in the food. Secondly, the action must be brought against the manufacturers of the red wine. This is so because the pub manager is merely the retailer with no opportunity to temper with the contents of the red wine. The law of negligence dates back as far as 1856 when Lord Baron Alderson in Blyth v Birmingham Water Works Company gave a simple and precise definition of what constitutes negligence in the following terms; Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. It follows therefore that negligence consists of either an act or omission on the part of the defendant. It is trite law that the tort of negligence has three essential elements, which any claimant must prove in order to succeed in his action against the defendant. These three elements are existence of duty of care owed to the claimant, breach of such duty of care by the defendant and lastly the resulting damage to the claimant arising from the breach of the duty of care . Each of the above elements of the tort of negligence will now be discussed in turn. Existence of duty of care
It is now settled law that there exists no all embracing duty owed to the whole world in all circumstances. However, the determining issue is whether a duty of care existed and whether it was owed to the particular plaintiff. 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 but 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 Donoghue 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 hold that he did. In that case, the plaintiff became ill after drinking ginger beer from a bottle which contained a decomposing snail in it. She had not bought the daring 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 plaintiff’s favour and the case is an authority because of the rule of law laid down by Lord Atkin when he stated thus; The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer 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...
Bibliography: Clerk and Lindsell. 2003. Law of Tort, 16th ed
Rogers, W. 1994. Winfield and Jolowicz on Tort, 13th ed. London: Sweet and Maxwell.
Smith and Keenan
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