Kylie is a media personality who has just had a baby and has developed an allergy to the Parabens and preservatives that are contained in her usual makeup products. In light of this new health development, her make-up artists purchased a product that is specifically advertised as being Paraben and preservative free. However, shortly after applying the makeup Kylie develops a severe allergic reaction to Parabens present in the makeup whose presence had not been disclosed by the manufacturer. Kylie’s reaction to the allergens is so dramatic that she has to go to the hospital and is consequently is unable to attend a photo shoot for a celebrity magazine which would have earned her a quarter of a million pounds.
This paper will seek to provide advice applicable to this particular case through a discussion of the elements of negligence that would need to be established in order to make a successful claim of negligence under negligent tort law against the makeup company, the possible defenses that the defendant is likely to employ to refute this claim and how Kylie could counter these defenses as well as the best possible remedy for Kylie’s particular situation.
In the case of Kylie, establishing a basis for a negligent tort would involve; First, establishing that the type of injuries sustained by the claimant (Kylie) are covered by negligent tort law. Second, proving that the makeup company had a duty to provide a certain standard of care which they breached, and this breach that directly contributed to the injuries to that Kylie sustained (Deakin & Markesinis, 2017). The standard of care is determined by the extent to which the actions of the defendant are similar to those of a reasonable person, who possesses ordinary prudence and is averse to causing harm and injury to others, in a similar circumstance. Here, the “neighbor principle” which establishes a general duty to take the most humanly possible reasonable care to avoid acts or omissions that would result in injury to your neighbor would be employed by the court to determine the standard of care that the makeup company owed Kylie (Deakin & Markesinis, 2017).
In the case of Kylie, the damage suffered is incredibly foreseeable right from the marketing strategy employed by the company. The makeup company must have known that the preservatives and parabens used in other makeup brands might be unsafe to individuals who were allergic to them. If they guarantee a product that contains no such constitutions, then it is obvious that they had a duty to provide exactly that and the presence of the substances that they had explicitly denied having in their product is a breach of this duty.
Establishing claim for negligence in Kylie’s case would be aided by the fact that her situation bears a close resemblance to Donoghue v Stevenson which set a precedent for remedying a customer who has consumed a product that resulted in injury to health. Once a situation falls into a standard of duty that has already been established, showing that this standard of was breached becomes much easier. In Donoghue v Stevenson, the plaintiff reported seeing the remains of what appeared to be a snail after she poured some ginger beer bought for her by a friend into a glass. She wanted compensation for the nervous shock that resulted from that experience as well as the gastroenteritis that came about after she had consumed the ginger beer. Although there was debate as to whether the defendant had any duty to the claimant given that there was no direct interaction between them, the House of Lords ruled that the manufacturer has a duty to the consumer to ensure that there are no harmful substances in their product.
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If there arises a dispute as to what the standard of duty is, the court may deny duty at this stage. If this happens, the defendant may be at fault but would not be liable and would remain immune from any liability in any future damages. However, it is unlikely that any court would deny duty before performing a full examination of the case based on its merit (Lewis & Morris, 2012).
The next element that Kylie would have to prove in the negligent tort is the fact that the company violated this standard of care. A standard of care is breached when the actions of one individual expose another to an unreasonable and foreseeable risk of harm (Deakin & Markesinis, 2017). The negligent party, in this case, must have done things that would not be done by a reasonable person in the same situation or circumstances or did not guard against the potential source of harm. If the manufacturer had not advertised this particular make up brand as paraben and preservative free and instead taken action to provide warning as to the presence of these substances on the makeup, then his/her actions would have been reasonable and he/she would not be liable for negligence (Muhametej, 2017). However, in the case of Kylie the manufacturer specifically made claims that these substances were not present. Given the potential of this irresponsible behavior resulting in fatal health outcomes, the manufacturer should have taken his duty to take steps to avoid harm more seriously.
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In the case of Kylie, the breach of this duty resulted directly to the health and economic injury she sustained. However, it is not always a requirement that the breach is directly correlated to the injury but it does have to play a substantial part in the causation of the injury. To prove causation, courts often use the “but for” test to determine whether the injury was the proximate and most probable cause of the injury. Meaning that the injury would not have occurred “but for” the plaintiff’s contact with the defendant (Lewis & Morris, 2012). Injuries that are not in proximity to the actions of the defendant and cannot have been reasonably foreseen by the defendant do not constitute a basis for liability. At this stage, the burden of proof lies with the plaintiff to establish that the damage did indeed occur and that it was a direct consequence of the actions of the defendant or that these actions contributed significantly to causation of damage (Muhametaj, 2017). If the court looks back at the injury caused and finds it too extraordinary that the actions of the defendant could have led to the injury then negligence cannot be proven (Deakin & Markesinis, 2017). It is not always easy to prove causation. Factual evidence is particularly important and expert witness testimony may prove to be incredibly crucial for successful litigation.
However, if the plaintiff is able to fulfil the burden of proof that at this stage, then the damages sustained need to be evaluated in such a way that the plaintiff would be restored to the same condition that he/she was before the injury. Typically, a successful plaintiff in a negligent tort would be compensated for; loss of earnings, out of pocket expenses that have resulted from having the injury, cost of medical care and damage to property. Given that Kylie had to forfeit a lucrative opportunity for economic gain, succeeding in proving negligence would ensure that she recovers some if not all the earnings she would have received had the injury not occurred. Moreover, the court would make an estimation as to the compensation that Kylie would be entitled to if the injury results in a prolonged loss of earnings and expenses in the form of medical care (Muhametaj, 2017)
Kylie is likely to encounter several lines of defense from the defendant before she can prove causation. The utility of these defenses may be improved if she had not disclosed her allergies to her makeup artist who in turn may not have taken due precautions to ensure that the all the tools that she used to apply the new makeup have not been contaminated with the old makeup. The defense could claim that the plaintiff acted negligently by failing to take the last possible chance to avoid injury, and it is this negligence that partly contributed to the injury in addition to the actions of the defendant. Once the plaintiff’s negligence has been proven, the court would then apportion responsibility for the injury between the claimant and the defendant by reducing the amount paid to the claimant as damages (Lewis & Morris, 2012). Kylie could counter this defense by proving that the makeup company was reckless and exhibited a conscious disregard for the high risk that the parabens in his product posed to customers. Once recklessness is proven, the contributory negligence of the plaintiff is disregarded and recovery can be made in the form of punitive damages which are not available in negligent tort law.
If Kylie is unable to prove negligence or recklessness. She could also invoke the Consumer Protection Act of 1987 which renders the producers of products liable for any injuries or damage to property that results from issuing a defective product (Lewis & Morris, 2012). Under this act, the plaintiff will only recover personal and property damage and not economic losses. However, if he/she is able to prove that the company concealed the defects associated with the product, violated the acceptable standards of quality and employed inadequate quality control procedures, she could recover punitive damages. The defense could claim that substances resulted from the actions of a different producer who contributes to the manufacturing process or that the product did not contain the harmful substances when the product was placed in circulation (Lewis & Morris, 2012).
The defense could also claim that there was no knowledge of the risk involved by including the Parabens and preservatives in the makeup but this defense may not be applicable to this case as the company already knew the risk of these substances which is why they were producing a product that claimed to be free of them.
The most appropriate remedy for Kylie’s case would be one that ensures that she recovers the economic loss she suffered as a result of the injury. Proving recklessness would provide substantial punitive damages. Invoking the Customer protection act and proving that the safety of the product, which would be judged by the prevailing standards at the time it was placed into circulation, was not one that people are expected to expect would be much easier while proving all the elements of negligence might turn out to be challenging.
Kylie’s lawyers might need to develop a conceptual framework and decide whether there is sufficient basis for the claim and the possibility of a good defense before proceeding to court. If they choose to employ litigation, then proving negligence on the part of the company would be the best possible way to ensure that Kylie recovers the pecuniary losses she sustained as a result of the injury in the form of future earnings, medical bills and the non-pecuniary losses in such as the pain and suffering she had to endure as a result of the injury (Muhametaj, 2017) On the other hand, it is often encouraged by civil procedure rules that parties in a case like this employ tactics such as mediation and negotiation to solve their disputes out of court. If the company is willing to provide compensation to remedy the situation out of court, then this is an avenue for resolution that Kylie should consider carefully before proceeding to court (Muhametaj, 2017).
To succeed in proving negligence, Kylie would have to define the duty of care owed to her by the makeup company, prove that the company breached that duty and that the damages she sustained were a direct consequence of this breach or that the breach contributed substantially to the damage. After causation is proven, then Kylie would be entitled to recover the earnings from the photo shoot, money spent on medical bills, compensation for pain and suffering as well as the costs of litigation. Kylie may also avoid the entire process of litigation by settling the case out of court as long as the makeup company provides reasonable compensation for the damage that has occurred as a result of their negligence.