fionawalker
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I'm a first-year law student and have my first moot coming up in a couple of days however I'm struggling with it. The case I have been given is regarding duty of care. A man was bought a pair of shoes by his girlfriend for his bday. He wore the shoes on a night out however a bit of wire cut his heel. He didn't notice until his gf pointed it out the next day. He went to the doctors and was told he had contracted sepsis that had caused disabling muscle and joint pains. He had to take 4 weeks off work due to his infection. Since the shoes were launched in 2017, 5 people have been injured from wearing them. He tried to sue the manufacturer for damages however the case was dismissed. He is now appealing. I am the senior respondent so I have to argue against his appeal. So far I have thought about arguing that no contract exists between him and the manufacturer as the shoes were bought by his girlfriend but Donohue v Stevenson shoots down that argument. I also considered arguing that he should have removed the shoes as soon as it started hurting cause he made it worse by not removing the shoes straight away however I'm finding it difficult to source law to back this up. I will also say that it is impossible to foresee every injury and may mention the tripartite test. Please help me with arguments, law, and also how to moot as I really have no clue!

Thank you!
Last edited by fionawalker; 1 year ago
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IpsaLoquitur
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You are right that its a no-go on the duty of care, its obvious a duty of care is owed here. That doesn't mean the duty was breached though. I think you want to focus on breach: discuss whether the defendant took reasonable steps to stop people being injured by their shoes. Consider things like how few people have been injured by them in 2 years (I assume lots of people wear these shoes? Do you have numbers?), whether this kind of defect was foreseeable, how costly it would be for the defendant to check every shoe to make sure none have this particular defect etc.

Causation looks like a bit of a lost cause too. Unless it was completely unreasonable of him not to notice, there is evidence that he would not have got sepsis if he had gone to the doctor immediately, and it was completely unreasonable to wait a day even if you did notice, you aren't going to show a break in causation. Hard to say without seeing the whole fact pattern though.

Also, are you being asked to consider negligence alone or are you also being asked to discuss liability under the Consumer Protection Act?
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fionawalker
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(Original post by IpsaLoquitur)
You are right that its a no-go on the duty of care, its obvious a duty of care is owed here. That doesn't mean the duty was breached though. I think you want to focus on breach: discuss whether the defendant took reasonable steps to stop people being injured by their shoes. Consider things like how few people have been injured by them in 2 years (I assume lots of people wear these shoes? Do you have numbers?), whether this kind of defect was foreseeable, how costly it would be for the defendant to check every shoe to make sure none have this particular defect etc.

Causation looks like a bit of a lost cause too. Unless it was completely unreasonable of him not to notice, there is evidence that he would not have got sepsis if he had gone to the doctor immediately, and it was completely unreasonable to wait a day even if you did notice, you aren't going to show a break in causation. Hard to say without seeing the whole fact pattern though.

Also, are you being asked to consider negligence alone or are you also being asked to discuss liability under the Consumer Protection Act?
We have not been provided with any figures or details of any safety checks done by the manufacturer and as it is a made-up case I can't research any facts. I've written a little about how reasonable checks were carried out but of course, I just made that up. I'm not sure that's even allowed. we were told that the original case was dropped because “although the possibility of a customer being injured by these shoes might reasonably be foreseeable, this is not sufficient to establish a duty of care toward the man, since the risk of injury to anyone buying the shoes was so remote that a reasonable person would not have anticipated it.” This judgement referred to Bolton v Stone [1951] AC 850.

We've also been told the man now appeals to the Inner house on the grounds that:
a.) The Judge erred in refusing the action as there was in fact an existing duty of care in accordance with Lord Atkins judgment in Donoghue v Stevenson [1932] UKHL 100.
b.) The facts in this case give rise to duty of care under the tripartite test established in Caparo Industries Plc v Dickman [1990] UKHL 2
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Reality Check
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(Original post by fionawalker)
I'm a first-year law student and have my first moot coming up in a couple of days however I'm struggling with it. The case I have been given is regarding duty of care. A man was bought a pair of shoes by his girlfriend for his bday. He wore the shoes on a night out however a bit of wire cut his heel. He didn't notice until his gf pointed it out the next day. He went to the doctors and was told he had contracted sepsis that had caused disabling muscle and joint pains. He had to take 4 weeks off work due to his infection. Since the shoes were launched in 2017, 5 people have been injured from wearing them. He tried to sue the manufacturer for damages however the case was dismissed. He is now appealing. I am the senior respondent so I have to argue against his appeal. So far I have thought about arguing that no contract exists between him and the manufacturer as the shoes were bought by his girlfriend but Donohue v Stevenson shoots down that argument. I also considered arguing that he should have removed the shoes as soon as it started hurting cause he made it worse by not removing the shoes straight away however I'm finding it difficult to source law to back this up. I will also say that it is impossible to foresee every injury and may mention the tripartite test. Please help me with arguments, law, and also how to moot as I really have no clue!

Thank you!
I think you don't need to go much further than causation here. What is the link between the shoes and the injury? 5 people injured 'whilst wearing' the shoes in 2 years. Is there any proof of causation in those other five cases, because the way you've written it here suggests there isn't. How many pairs of shoes were sold, or could have been sold. What proportion is 5 injuries, and would they fall within what one would ordinarily expect? In other words, is there actually any evidence to point to a connexion between his injury and these shoes?
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fionawalker
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(Original post by Reality Check)
I think you don't need to go much further than causation here. What is the link between the shoes and the injury? 5 people injured 'whilst wearing' the shoes in 2 years. Is there any proof of causation in those other five cases, because the way you've written it here suggests there isn't. How many pairs of shoes were sold, or could have been sold. What proportion is 5 injuries, and would they fall within what one would ordinarily expect? In other words, is there actually any evidence to point to a connexion between his injury and these shoes?
The injury was from a metal wire that had ripped out of the frame of the shoes, his left foot was badly pierced. I think that connects the shoes to the injury and therefore, unfortunately, I don't think I can use causation.
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Reality Check
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(Original post by fionawalker)
The injury was from a metal wire that had ripped out of the frame of the shoes, his left foot was badly pierced. I think that connects the shoes to the injury and therefore, unfortunately, I don't think I can use causation.
You said nothing in your post about the metal wire coming from the shoes!!! The metal wire could have come from the street or something.

If you want accurate help, you need to be much more specific in your description of the case
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IpsaLoquitur
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Urgh, I think you might have unfortunately been landed with one of those moots that isn't actually moot. It happens. Given those grounds, you are right that you can only talk about duty. You may want to take a two-pronged approach: 1) Donoghue is not applicable to this case because [cite some distinguishing facts or policy reason relevant here that make the claimant in this case not the defendant's 'neighbour']; 2) go through each of the Caparo criteria and try to argue which each one is not met.

Its going to be difficult, but find any quote or fact you can to support the trial judge's reasoning.
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