Whether the waitress or restaurant owes Simon responsibilities under the tort of negligence and if there any remedies available to him
Section 13 Supply of 1982 Goods and Services Act
Section 49 of the 2015 Consumer Rights Act of England
Section 54 of the 2015 Consumer Rights Act of England
Section 1, clause 1 of 1945 Law Reform (Contributory Negligence) Act of England
Definition of a tort
As I offer a solution to Simon’s incident, I will first analyze what the tort of Negligence in the law of England is. In common law authorities like England, any civil wrong by a person unfairly leads to harm or loss of another, resulting in legal accountability for such person that commits the act is termed a tort. Therefore, a tort is an omission or act which gives leads to harm or injury of another amounting to a civil wrong that the law courts enforce liability. In England, the tort law covers three basic categories; torts that are intentional, negligence and torts of strict responsibility. A tortfeasor is the individual committing the act.
The general law of Negligence in England
In tort law, negligence is certainly the largest area of law. In England, Negligence is a comparatively new type of tort and has largely been developed by the bench. It is flexibility, thus, can be applied by law courts to ascertain liability in the new settings. The classic cases of Donoghue v Stevenson and R v. Adomako detail what every plaintiff must avail as proof for a court to find on negligence. Firstly the plaintiff must show that the respondent owed the plaintiff an obligation of care. In the Donoghue v Stevenson case, the House of Lords deliberated on the concept of duty rejecting the earlier law.
The court in Donoghue v Stevenson stated that the duty of care entailed “taking reasonable care to evade omissions or acts that one can realistically foresee as to possible injure their neighbor.” In applying this principle to Simon’s situation, the waiter was obliged to an understanding that the individuals like Simon, direct and close to him are affected by his acts. This entails the actions that the waiter reasonably ought to have contemplated as so affected when they direct their concentration to such omissions or acts into question like the cork popping out to injury Simon.
The recent case of Crown v Zaman offered a three-level test of establishing if a duty of care exists. The first stage is whether a proximity relationship between suit parties exists. The second stage is if the injury on claimant was foreseeable. Last is whether it is reasonable, fair, and just for a duty to be imposed. Courts of England prefer to resolve the question of liability at the breach step after a complete argument on the essential merits of a case have been adduced.
Upon the claimant establishing the respondent owed them the care duty; the next step is demonstrating that it was the defendant at fault. That is, it is the defendant that breached their duty of care. In Arnold v Britton & Ors and Blyth v Birmingham Waterworks Co, the courts stated that courts often apply the test of reasonable to establish if there was a breach of the duty of care by the defendant. According to Montgomery v. Lanarkshire Health Board, the test is of an objective nature where the law courts often find a balance between foreseeability degree and possibility of injury as against the price of evading such harm. This is due to the fact that any defendant is not liable for any kind of injury that they might not have reasonably foreseen.
In State v. UK, court opinioned that courts also put into consideration the societal profits if such activity was never carried out. To applying the breach of duty ingredient to Simon’s situation, there is no dispute that the Restaurant’s waiter clearly popped the cork that injured Simon.
In negligence cases, the Simon must prove causation. He must show it was the breach of the duty of the defendant that initiated the damage he suffered. According to Stapleton 2016, pp. 699, the test for causation in negligence is the famous but- for-test. It states that “but for the tort of the defendant, would the plaintiff have faced the damage or loss.” If the answer is not in the affirmative, then the test of causation is fulfilled. If the answer is in the affirmative, the respondent is not held liable, though they performed negligently (Stapleton 2016, pp.700). Even where the plaintiff fulfills the “but-for” test, they ought to demonstrate that this damage they suffered is not that remote of the negligence of the defendant. For instance, the court in Simon’s case might find that a waiter’s act or even Simon himself caused the injury. Simon’s failure to foresee the cork popping and protect himself can be held to have broken the causation chain between the act of the waiter and the injury suffered.
The last ingredient of negligence is that the injury suffered by the plaintiff must be of a type that is recoverable under negligence law. For instance, where Simon has suffered the loss of a chance of avoiding physical injury, this loss will not be compensable.
Section 49 of the 2015 Consumer Rights Act of England states that services to consumers must be executed with reasonable skill and care. Section 54 of the 2015 Consumer Rights Act of England offers consumers the right to treat the term as incorporated in every contract and the omission of it as a breach this particular section requires. This section is supplemented by Section 13 of the Supply of 1982 Goods and Services Act of England states inter alia that in every relevant contract of supplying service where the provider is performing in their course of business, an inferred term exists that such provider will, with reasonable skill and care, undertake their service.
The liability of the waiter’s employer to Simon stems from the doctrine of vicarious liability. Vicarious Responsibility is enforced on the Restaurant or employer for the worker’s tort committed against a Simon in the progress of their employment. Liability herein is strict because it is the duty of the employer (the restaurant) to effectively supervise their employees. In Cox v Ministry of Justice, the judge noted that this doctrine has developed from a societal convenience and such bumpy justice. The company is better placed to reimburse a victim, as well as extend out losses through insurance. The employer receives benefits from the business and so must similarly bear tort risks occurring in the performance of their trade.
Any plaintiff, like Simon, to successfully sue the restaurant under this vicarious liability doctrine, must demonstrate three finding: First is that the waiter (offender) was an employee (not a sovereign contractor engaged by the restaurant to undertake work. Second is that the worker (waiter) committed a tort (popped the cork). Last is that the tort (damage to his teeth) was committed by the waiter in their progress of work. England’s most current case has adopted the neighbor connection test to ascertain whether (the tortious) act was actually in defendant’s course of service.
The highest court of England in Mohamud v WM Morrison Supermarkets has recently stated that it is essential to have a comprehensive approach to the employment nature, for any court to ascertain if the alleged tort is that closely associated with defendant’s employment (Morgan 2016, pp. 204). So that it is reasonable, fair, and just to find the company liable; or if the tort fits in a risk generated by the business known to be integral to it. Toulson J held that in every court of law must consider which functions are entrusted to such employee in question, that is, what the nature of their job is. This issue must broadly be addressed. Secondly, it must be ascertained if a satisfactory connection exists between the situation ... and the employee’s wrongful behavior to infer the right for their employer to be deemed liable under the social justice principle.
On such basis, attending to clients, like Simon and reacting to client inquiries was part of waiter’s job. The waiter’s actions and injuring Simon was within their field of undertakings assigned to the waiter. The events that followed amounted to a continuous series of happenings, an unbroken event.
The remedies in the law of negligence available to Simon
In English trials on negligence, the judge hears, decides the lawsuit, and rewards damages, not the jury. If the above criterion is fulfilled, Simon is eligible to full compensation. In the law of negligence, a claimant must be restored to the position they must have been had such tort never occurred. Punitive reparations do not exist in negligence laws. As soon as the law court is contented with the negligence of defendant, then it must advance to assessing compensations. Normally, injuries are deliberated on as a whole. Such evaluation finalizes Simon’s rights, thus, no right for Simon to approach the court in the future to have another assessment of the damages. Scarman J in the case of Lim v Camden & Islington Health Authority indicated that only a single certainty exists: the imminent proves the reward as more so excessively low or high.
For reasons above, in courts awarding the damages, the judge compensates the plaintiff only what the respondent is answerable for and not future injuries. This rises from the finality-in-litigation principle. In such a classic personal wrong case, Simon will be recompensed for the pecuniary loss. This entails the ?20,000 (cost of therapeutic care), his pocket expenditures occurring due to the offense. For the non-financial loss, Simon is entitled to damages comprised of compensations for amenity loss, as well as for suffering and pain. The court in Battram v Dr. Geoghegan Clinical Risk held that at trial date, the court assesses the reward necessary for whichever future harm to earnings and the therapeutic care, where the impairment will continue even after court hearing (Maunder 2017, p.2).
Exceptions to the finality-in-litigation principle
While damages are never re-assessed at a future date, the case of Mulholland V Mitchell provides an exception. The court was requested to re-open the evaluation of compensations due to a very noticeable change in the injured individual’s situation just after the proceedings. Since the matters arising after the trial date were largely of degree and discretion and the Court of Appeal in its discretion admitted fresh evidence, the conditions in this particular case were exceptional. The finality in lawsuits principle must always be in the judges’ minds and not every such evidence must be admitted on such changes that could have befallen since the court trial.
Hodson J stated that from the Mulholland V Mitchell case, it is fairly contended that the grounded on which this lawsuit was reached at court trial was materially and suddenly fabricated by a dramatic amendment in circumstances. There is a pending appeal on whole damages question, so, it is unsatisfactory for the law court to deliberate on the appeal short of taking falsification into account. Where there is no fresh proof, the Court is restrained from deliberating on the case with such reality before it.
On a point of negativity, fresh proof must never be admitted if it has bearing on the matters subsiding within the area of uncertainty or the field; an area the judge has already covered. However, it may positively be admitted where certain basic assumptions, known to both parties, have evidently been forged by succeeding events, particularly where such falsification occurred by defendant’s act. Similarly, it is expected that law courts allow new evidence if to refuse the evidence would insult common logic or an intellect of fairness. All the above are merely non-comprehensive exceptions; whose application should be left to law courts. The extraordinary personality of lawsuits in which new evidence is permitted is entirely recognized by law Courts.
To appreciate the English law of negligence and assess the chances of Simon successfully suing the Restaurant, it is important Simon avoids indicating the following situations (defenses to the tort of negligence).
There is a situation is termed contributory negligence that Simon should avoid indicating when they sue the restaurant. That is, that he similarly acted carelessness and that his negligence contributed to the damage he incurred. The reason for this caution is that the law court will then apportion the responsibility between the waiter and Simon; adjusting Simon’s damages according to Section 1, clause 1 of 1945 Law Reform (Contributory Negligence) Act of England.
In both Craig Sparrow v Arnaud Andre and the case of Tompkins v Royal Mail Group, the court held that a verdict of contributory causation is reached when the plaintiff’s own carelessness contributed to the injury they complain of. Therefore, Simon’s damages will be reduced where he would have suffered same damage had he applied reasonable care for guarding his safety (such as moving away or telling the waiter to pop the champagne elsewhere or close his mouth)
Volenti non fit injuria is another defense to Simon’s negligence assertions where the restaurant can disregard their liability totally if they can demonstrate to the court that Simon consented to the specific possibility of harm. The volenti non fit injuria defense obliges a voluntary and entered agreement by Simon, in the full awareness of Restaurant circumstances, to pardon the Restaurant of every legal result of their arrangements.
R v. Adomako, 3 All E.R. 79 (1994)
Crown v Zaman T20150463/T20157235
Donoghue v. Stevenson, 1932 A.C. 562 (1932)
Arnold v Britton & Ors  UKSC 36
State v. UK, No. 113,900 (Kan. Ct. App. Oct. 7, 2016)
Montgomery v. Lanarkshire Health Board, 2015 U.K.S.C. 11 (2015)
LIM POH CHOO V CAMDEN AND ISLINGTON AREA HEALTH AUTHORITY  UKHL 1
Mulholland V Mitchell  AC 666
Tompkins v Royal Mail Group PLC  EWHC 1902
Craig Sparrow -v- Arnaud Andre  EWHC 739 (QB)
Maunder, C. (2017) "Battram V Dr Geoghegan". SAGE Publications [online] 1-3, available from [31 March 2017]
Morgan, P. (2016) "CERTAINTY IN VICARIOUS LIABILITY: A QUEST FOR A CHIMAERA?" The Cambridge Law Journal [online] 75 (02), 202-205, available from [31 March 2017]
Rix, K.J., 2017. After a prolonged gestation and difficult labour, informed consent is safely delivered into English and Scots law. BJ Psych Advances, 23(1), pp.63-72, available from [31 March 2017]
Stapleton, J. (2016) "An ‘Extended But-For’ Test For The Causal Relation In The Law Of Obligations". Oxford Journal of Legal Studies [online] 36 (1), 697–726, available from [31 March 2017]
Yeo, S., 2016, 09_Gravity of Provocation Revisited, 32-34, available from [31 March 2017]