BUSINESS LAW

Claim in Negligence and Volenti Non fit Injuria



Claim in Negligence and Volenti Non fit Injuria



Introduction

The assignment is about to establish a claim in negligence that is to prove that James is innocent in the given case of drug. The claim must be legal and appropriate to present it the higher authorities of the ice hockey team. Through this essay I have to blame on the doctor and the team coach because they gave the drugs during medical check up.

Claim in Negligence

Mr. Baron Alderson defined Negligence as it is the error in performing act that a fair man, following the rules that leads human affair's conduct, doing anything, which a reasonable man would not like to attempt, provided, that side whose action is under consideration in a scenario that takes the person to follow the taking care's duty.

According to Smith, “Negligence is the break of duty unintentionally and proximately creating harm to another possessing equal right”. According to another author, “it is the failure to give the skills and care that the case demands (Warren & Charles, 1895, pp. 457).

Therefore, Negligence is about to claim the act or acts that performed by any person unintentionally. In this case the James did not take any drug or supplement deliberately, but the doctor gave him the supplements on the name of vitamins, which is incorrect by law. Although James was aware regarding the team policies for taking drugs intentionally. He was very much committed and dedicated with his future in the ice hockey team. He did not even know that he would get in trouble for this drugs taking. The given evidences prove that James claim must be approved in Negligence.

Volenti Non fit Injuria

It is the limited application's defence in the tort law. It is translated as “to a volunteer person, injury is not done”. It operates where the volenti's defence applies as a full defence clearing the defendant of all legal responsibility. It is stated that applicant approves to harm's risk, however, it is extremely limited in the applications. The volenti non fit injuria's defence needs a volunteer agreement by the person with the acknowledgement of the outcomes, to forgive the person of actions' consequences. The needs of the defence are:

Agreement

Volunteer

Complete knowledge

Voluntary

The agreement must be freely entered that is voluntarily for the defence of volenti non fit injuria to clear. If the applicant or the claimant is not in the position of exercising open choices, the defence would not be successful.

Agreement

It is the second need of the defence. The agreement can be implied or express. For example, in an express agreement would be at a place where exists a mutual term. However, this would be implemented under the section 2 of the Act 1977 and title of Unfair Contract Terms. This agreement can be signed in the scenarios and the circumstances show a willingness to admit not only the apparent or physical risks but as well as the legal risks (Gayani, 2012, ...