Explain the three elements of the tort of negligence and advise Mumbridge plc whether it is likely to be liable to compensate James who claims the company has been negligent.

There are, like already mentioned, three essential elements a plaintiff must prove, in order to establish negligence.

The first element he has to prove is that the defendant owed him a legal duty of care. In Donoghue v Stevenson Lord Atkin formulated a general test/principle for determining the existence of a duty of care, which became known as the “neighbour principle”. This principle requires for the existence of a duty of care two main elements, which are: reasonable foresight of the damage and proximity in the relationship between the concerned parties. In recent years a new element was adopted to the “neighbour principle”, which says that it has to be fair, just and reasonable to impose a duty of care.

The second element to prove is the breach of the duty of care. This means, that the plaintiff has to show, that the defendant has broken the duty of care and acted careless. In order to show this, he can use a “reasonable man test”, which means that the way the defendant acted will be compared to what a reasonable man would do, or omit to do.

The third element the claimant has to prove is that he suffered some damage that has been caused by the defendant’s negligence or breach of duty and is not too remote as consequence of it. But this means that, although the defendant was negligent, the plaintiff cannot sue him if his negligent action did not cause the damage. Damages that will give rise to an action in negligence are: death, personal injury, nervous shock, damage to property and in some circumstances financial loss.                          

James, a lecturer from Cambridge, who suffered a nervous breakdown, wants to sue Mumbridge plc the manufacturer of Zaba for negligence.

In order to get compensation for negligence from Mumbridge plc James has to prove the three essential elements of the tort of negligence.

James can prove that Mumbridge plc owed him a legal duty of care because it has to warn the end user from any reasonable and foreseeable side effect of Zaba.  The “proximity” is the same as in the case Donoghue v. Stevenson, manufacturer and consumer and it is fair, just and reasonable to impose Mumbridge plc a legal duty of care, because it sells Zaba through its retailer Tilalot to many people and has responsibility for the side effects of Zaba.

After this he has to prove that Mumbridge plc has broken its duty of care.  This means that Mumbridge plc would have acted unreasonably. It should have tested Zaba in connection with coffee because every reasonable man knows that coffee boosts the energy level and too much coffee alone, without any other energy booster, can cause harm.  It is just reasonable to think about the side effects and conflicts that could occur to a person taking Zaba and drinking coffee, because Zaba is exclusively sold to lecturers and it is well known that lecturers usually drink many cups of coffee a day. It will be very hard for James to prove this second element, because various tests and reports have to be made to prove that Mumbridge plc has not made these tests and this would cost James a lot of time and money.  

We do not know exactly when the research that shows that Zaba can cause depression, if taken by someone drinking more than four cups of coffee a day was published, but if it would have been published before James’s nervous breakdown, Mumbridge plc could use the contributory negligence as a defence, which reduces any award of damage. If it was published afterwards, Mumbrigde plc could be fully liable.

After proving the first two elements of negligence, James has to prove that he suffered damage that was caused by the negligence of Mumbridge plc. The latter will be, in my opinion, hard to prove, because he could have got the nervous breakdown also as a result of e.g. stress and not of Zaba.  James would have to prove e.g. that he was in a good healthy condition, had no stress, no problems, was happy… before taking Zaba and that Zaba caused his nervous breakdown. If he can prove that Zaba caused his nervous breakdown, Mumbridge plc would be liable, but if not, Mumbridge’s breach of duty would not have caused the damage and Mumbridge plc would not be liable.

All the three elements are essential for a successful negligence claim and I think that on the given facts, James would not be able to prove the third element and would have a lot of difficulties to prove the second one. Therefore I would advise Mumbridge plc that it is not likely to be liable to compensate James if he claims the company for negligence.    

2) Describe the provisions of the Consumer Protection Act 1987, which relate to product   liability, and advise Mumbridge plc whether it is likely to be liable to compensate James who claims the company have sold him a defective product which has caused him injury. Would your answer be different if James was a lecturer at a German University and he had purchased the product from a German subsidiary of Mumbridge?

If James claims the company for selling a defective product, which caused him injury we have to consider the Consumer Protection Act (CPA) 1987.

The CPA makes provision to liability of persons for damage caused by defective products.  This means that the producer will be liable for harm that is caused by his product except he can establish one of the defences, which are provided in the CPA. Especially Part I of the CPA, which came into force in 1988, is concerned with product liability.  The claimant (consumer) does not to prove negligence, but he has to establish liability under the CPA and therefore he has to prove that he suffered damage, that the product was defective and that the defective product caused the damage (Causal link).

Part I of the CPA is divided into nine sections.

Section one is concerned with the question when a person is liable for any damage and the definition of a producer (e.g. manufacturer, person who won or abstracted the product), which would be in our case the manufacturer of Zaba, Mumbridge plc.

Section two identifies the people, who are liable for injury or damage arising from a defective product and in James’ case it would be again the producer, Mumbridge plc.

A product has a defect if the safety of the product is not such as persons are generally entitled to expect.  To decide this, factors like the manner and the purposes for which the product has been marketed, the use of any mark, instruction or warning, what might be done with the product and when the product was supplied, should be taken into account.

This definition of a defect is provided in section three of the CPA. In our case, James v Mumbridge plc, the defect would be, that there were no warnings that Zaba could cause any harm if taken by someone drinking more than four cups of coffee a day.

Section four deals with the defences the producer can establish in order to be not liable for harm that is caused by his product. The defence, Mumbridge plc could try to establish in this case is, that it had not the scientific and technical knowledge at the relevant time to discover the problems that could occur with Zaba in connection with coffee. This defence is called the controversial “development risk” defence.

It is hard to say if Mumbridge plc would succeed with this defence, because there is not sufficient information given about the scientific knowledge at the relevant time but the scientific knowledge is growing extremely fast and it is possible that it received the relevant knowledge in a short time period and after James’ nervous breakdown.

Mumbridge plc could also try to establish a defence where it questions the causal link of the damage, this means, if James’ nervous breakdown really is a result of the absence of the warning.  It could try to prove that Zaba did not cause James’ damage, damage as defined in section five of the CPA.

Section six to nine of the CPA: Application of certain enactments etc., Prohibition on exclusion from, Power to modify Part I and Application of Part I to Crown have no special importance in this case and can be left out of consideration.      

After looking at the CPA I would advise Mumbridge plc that it is not likely to be liable to compensate James when he claims the company have sold him a defective product, which has caused him injury, because Mumbridge plc will probably be able to establish the controversial “development risk” defence and James will have difficulties in proving that his nervous breakdown was caused by not knowing the side effect of Zaba, if taken by someone drinking more than four cups of coffee a day and not by stress or something else, and it is an essential issue that the damage was caused by the product.

Part I of the English CPA and the German Product Liability Act (Produkthaftungsgesetz)

implement the EC Directive and are therefore substantially the same, like all the other EC member states, too. But in the German BGB (Bürgerliches Gesetzbuch) under the Product Liability Act  §15, section 1, medicine is excluded from the Product Liability Act, and this means that Mumbridge plc would at first not have to compensate James if he was a lecturer at a German University, because James could not claim Mumbridge plc have sold a defective product, because Zaba is a medicine and medicine is excluded from the Product Liability Act in Germany.  

James could on the one hand turn to the European Court of Justice as a last instance, which is higher than the courts of the European Member States and could overrule their decisions. At the European Court of Justice the same Directive is affective as in England and Mumbridge plc would therefore be like in England probably not liable to compensate James.

But on the other hand James can also relate to the drug law (Arzneimittelgesetz) of 1976 in Germany, which imposes strict liability for the drug manufacturer. Such liability arises if damage was caused by harmful side effects or insufficient instructions or warnings of the medicine. But the burden of proof is again at the plaintiff and in this case James would, like already mentioned, have difficulties to prove the casual link of Zaba and his nervous breakdown.

Because of this my advice to Mumbridge plc would not be different if James would be a lecturer at a German and not an English University.

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References:

• Cane, P. (1987). Accidents, Compensation and the Law (pp.52-75). London: George Weidenfeld and Nicolson Limited.
• Foster, N. (1990). German Law and Legal Systems (p.146). Blackstone.
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-     Keenan, D. and Riches, S. (1998). Business Law (pp.294-303). Harlow:

      Pearson Education Limited.

• Lord Atkin (1932) “neighbour principle”, in Cane, P. (1987). Accidents,

      Compensation and the Law (pp.52-75). London: George Weidenfeld and Nicolson    

      Limited.

• Product Liability Act (1989) in “Bürgerliches Gesetzbuch” (1998). (pp. 552-556).    

       Nördlingen: C.H. Beck’sche Buchdruckerei.

• Rose, F.D. (1999). Commercial and Consumer Law (pp.310-315). Glasgow: Bell & Bain Limited.
• Scott, W. (1995). General Practitioner & The Law or Negligence (pp.15-17). London: Cavendish Publishing Limited.
• Strobel, Killius & Vorbrugg (1988). Business Law Guide to Germany (pp. 25-35). Bicester: CCH Editions Limited.
• Thomas, R. (2000). Introduction to Business Law Module Guide (pp. 58-64).

• Weir, T. (1992). A Casebook On Tort (29-33&166-170). London: Sweet & Maxwell Limited.

• Wright, J. C. (1989). Product Liability (pp.81-83). London: Blackstone Press Limited.

-     Consumer Protection Act (1987) Chapter c. 43, in

• Donoghue v Stevenson (1932). AC 562  Document No : 1750767.  

     

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