Commercial Law Case Study 2022

Running head: COMMERCIAL LAW
COMMERCIAL LAW
Name of Student
Name of University
Author Note

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Table of Contents
Answer 1....................................................................................................................................2
Introduction............................................................................................................................2
Grounds..................................................................................................................................2
Breach of Duty.......................................................................................................................4
Damages and Compensation..................................................................................................5
Conclusion..............................................................................................................................5

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Answer 1
Introduction
This paper aims to discuss in detail about negligence in the common law of torts. In
this regard the paper will be providing the example of a case study. In the case study it is seen
that three friends Jim, Kit and Eric went out to a café and bought some fancy bottles of soft
drink. While drinking from the bottle Kit is seen as choking on a plastic ball that was found
out to be the bottle top which came loose. Erik, a trainee nurse, is seen as helping him to get
the bottle top out of his throat. Kit is distressed and has since been diagnosed with clinical
depression and is unable to resume his University studies. The issue that can be raised in this
context is whether Kit can have an arguable case in the law of tort and against whom.
Grounds
Negligence in the law of tort can be defined as the failure of a person for fulfilling
their duty of reasonable care towards any other person, which in turn causes harm or injury to
the person. For establishing a successful case in negligence a person needs to prove four
distinct elements in negligence. These four elements include- duty of care, breach of that
duty, damages and causation. The first element requires a plaintiff to establish that the
defendant owed them a duty of care. For the second element the plaintiff is required to prove
that the defendant has breached the duty. The third element requires for the plaintiff to prove
that they have suffered damage for the breach. For the fourth element the plaintiff is required
to prove that there is a proximate relation between the breach of duty of care and the harm
that the plaintiff had suffered. The element of duty of care was first established in the
judgment of the landmark case Donghue v Stevenson [1932]. In this case the plaintiff, Mrs
Donoghue was seen as consuming decomposed remains of a snail which was present in a

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opaque bottle of ginger beer. The bottle was purchased by her friend for her from a café in
Paisley. The bottle had been manufactured by Mr Stevenson who was the defendant in the
case. The defence put forward by Mr Stevenson was that as there was no direct contractual
relation between him and Mrs Donoghue therefore she cannot have any claim against him.
However, the judges referred to the law of negligence where an individual is seen as having a
duty of care to act or omit any act that they can reasonably foresee would be harmful or
injurious to others.
Another important case in this regard is the Liebeck v McDonald’s Restaurant (1994).
This is a much debated product liability case in the United States under the law of tort. The
case is relating to the third degree burns the plaintiff suffered when she spilled hot coffee in
her lap which she had purchased from McDonald’s. Liebeck was seen as accusing
McDonald’s for gross negligence on their part because of selling hot coffee which she
considered as ‘unreasonably dangerous’ and ‘defectively manufactured’. The defence put by
McDonald’s included that their coffees were kept in such a high temperature because many
of the purchasers were commuters driving for a long time. However, during the trial it was
found that the restaurant had received several similar complaints from other customers as
well. McDonald’s was finally held for comparative negligence for almost 80% for the
damage caused to Liebeck. It was further held that Liebeck was also 20% liable for the
damage that was caused. The court further decided that there should have been sufficient
warning in the coffee cup to make the consumer aware of the danger it might possess.
Another important case for a successful claim in negligence is the leading case in
Bolton v Stone [1951]. The facts of the case include the injury of the claimant by a ball
coming from a neighbouring cricket pitch. It was also observed that there was a 17 foot gap
between the pitch and the fence that surrounded the pitch and the balls getting over the fence
and to the yards of other people was a very rare incident. Therefore the hit by which the