In the scenario Hank can prove there was negligence by the manufacturer by looking at the
duty of care that the manufacturer has. In dealing with something that is highly flammable,
the manufacturer should have placed the two tanks far apart so as to avoid any confusion that
may arise in the near future. To be able to prove this, the court will have to look at the
reasonable man test, in that what will a normal man do if he is operating with a highly
flammable substance (Jr., 1953). A reasonable man would have taken precautions to avoid
instances where there would be any confusion of any sought. This would have included
having two tanks that are clearly marked, secondly the tanks need to be of different colour,
thirdly the tanks need to be placed far apart and lastly the tanks need to have a different
shape. Therefore, Hank will have to show that the manufacturer had failed to exercise the
duty of care that he owned him as an employee.
The manufacturer can urge that there was contributory negligence from Hank. This is
because he ought to have exercised reasonable care since he was handling highly flammable.
The failure of him confirming the tank before filling it shows that he had contributed to what
happened to him (Jr, 1953). As an employee who has worked there, he knew the dangers that
would have occurred if he makes a mistake of filling the wring tank. Therefore, the
manufacturer cannot be said to be liable for the negligence of Hank of failing to confirm if he
was filling the proper tank.
As the judge, I will find the manufacturer of the resurfacing liable for negligence. The
reasoning would be that a duty of care was supposed to be exercised by the manufacturer, in
that there was a need of ensuring that there were proper demarcation, different sizes and even
colour of the tanks. This would have reduced the risks of Hank or any other employee from
filling the wrong tank. Therefore, from the failure of the manufacturer not to exercise the
duty of care owed, the accident was able to happen as a result.
BUSINESS AND FAMILY LAW
My answer would be different if I Learned that Hank testified that he was not confused with
the two tanks being similar in shape and color and being so close to each other. This is
because he will have failed at this instance to prove his case of negligence of the
manufacturer on a balance of probability. Therefore, it will make no legal sense to hold the
manufacturer liable for an action that has not been proofed. Through admission of lack of
confusion, therefore, the duty of care that ought to have been exercised by the manufacturer
would have otherwise been exercise (Jr, 1953). The testimony of Hank would be a hindrance
or rather stalled his case in proving negligence by the manufacturer and in that case I would
dismiss the case.
Cases of negligence have to be proved on a balance of probability, in the instances where a
party fails to prove its case beyond a balance of probability then the court will have no option
than dismissing the case. The manufacturer will have to show that it had exercised the duty of
care and that it was not negligent at all.
BUSINESS AND FAMILY LAW
Jr, F. J. (1953). Contributory negligence. Yale School of Law.
Jr., F. J. (1953). Scope of Duty in Negligence Cases. Yale Law School.