Advice to Jason, Penny and Fashions Ltd

The cases involved in this scenario are under negligence in the law of tort. Law of tort define tort as “an act which causes harm to a determinate person, whether intentionally or not, not being a breach of duty arising out of a personal relation or contract, and which is either contrary to law or an omission of a specific legal duty or a violation of an absolute right”.

On the basis of the above definition, it is established that a tort is a civil wrong independent of contract for which the remedy is common law action for unliquidated damages. Unliquidated damages are those which the court has power to fix, exercisable in its discretion, as distinct from liquidated damages, which is a fixed amount claimed by the plaintiff.

On the other hand, the tort of negligence has been defined by Judge Alderson in Blyth vs. Birmingham Waterworks Co. of 1856, as “the breach of a duty caused by 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. ” According to the judge, actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill by which neglect the plaintiff has suffered injury to his property or person.

According to law of tort, in order for one to maintain an action for negligence, the plaintiff must prove that: the defendant owed him a duty of care; there has been a breach of that legal duty and that the plaintiff has suffered injury to his person or property. For this case, it appear that for one to succeed in an action under tort of negligence, the above there ingredients must be there and these are duty, breach and damages. Jason who had been drinking heavily at a local public house ought to have taken reasonable care of him while crossing the road.

Although he was knocked down by a car that was being driven by Alice, he might not succeed in a case under negligence if Alice argue that the accident would still have occurred without negligence on his part. As a general rule, the burden of proving negligence normally lies on the party alleging it, but the courts do not insist on the plaintiff to prove where an accident happen which in the normal course of things would not have taken place if the defendant was not negligent.

The plaintiff may argue in such a situation that the rule of Res Ipsa Loquitur applies, i. e. things speaks for itself, and then the burden lies on the defendant to rebut the presumption of negligence by showing that the accident might still have occurred without negligence on his part.

Where the defendant succeeds in proving that he has not been negligent or offers a reasonable explanation of how the accident could have occurred without his negligence, the burden of proof reverts to the plaintiff i. e. he must prove that the defendant was negligent. Before the rule of Res Ipsa Loquitor can be invoked, three condition must be met and they include: that there must be reasonable evidence of negligence on the part of the defendant; that the operation is under the control of the defendant, when the accident took place; and finally, is that the accident is such as in the ordinary course of things does not happen if those who have the duty use proper care.