Legal Framework

This paper will discuss two scenarios: firstly, whether the plaintiff (Mary) has an actionable case for which she can sue the defendant in relation to injury suffered by her following the use of a free sample of the defendants bath salts, in accordance with the instructions on the packet. The injury was such that Mary suffered from a troublesome itch which last six months, during which time she was precluded from particpating in her favorite sport. She was also off work for three months, during which time she failed to share in a lotto win by the office syndicate of which she was usually a member. It is assumed that a normal person would have suffered minor discomfort for two to three days and that the sample was from a bad batch due to inadequate mixing. In the second scenario, it will be discussed what effect it would have on Mary’s case, had she used the entire contents of the bath salts packet, contrary to the instructions.

In order that sound advise be given, it must first be determined what tort or torts are relevant. The facts of this case indicate that there appears to be an issue with regard to the tort of negligence, in particular one of a negligent act. In order that an action under the tort of negligence be successful it must firstly be determined that the three essential elements of neglect, required to establish a case, do in fact exist. Those elements being; firstly, that the defendant owed the plaintiff a duty of care; secondly, that the defendant failed to conform to the required standard of care (breached the standard of care), and thirdly, that there was sufficient connection in law between the defendant’s conduct and the damage suffered by the plaintiff.

In deciding whether a duty of care was owed to the plaintiff by the defendant, reference is made to the doctrine of reasonable foreseeability and proximity, in which it was determined that manufacturers have a duty of care to their neighbours (consumers) to ensure that their products are safe.

In establishing the existence of a duty of care the question of foreseeability must be put. That being; “would a reasonable person, in the position of the defendant have foreseen the likelihood of injury to the plaintiff arising out of the defendants behaviour?” In this case a reasonable person would have foreseen the likelihood of injury arising as a