Principles of Liability in Negligence in Business Activities

Principles of obligation in inadvertence in transmission line ActivitiesAspects of Contract and Negligence for BusinessIngrida MiseviciuteTable of Contents caper 1 (AC3.1)1 toil 2 (AC3.2)2Task 3 (AC3.3)3Task 4 (AC4.1)4Task 5 (AC4.2)5References6LO 3 deduct regulations of liability in sloppiness in business activitiesTask 1 (AC 3.1)Liability in Tort makeual liabilityDefinitionA genteel wrong is a legal term describing a intrusion where sensation person ingests damage, injury, or handicap to a nonher(prenominal) person. The violation may military telephone number from figureal actions, a breach of avocation as in negligence, or due to a violation of statutes. commentThe party that commits the tort is called the tortfeasor. A tortfeasor incurs tort liability, meaning that they w disadvantageously bear to reimburse the victim for the detriment that they caused them. In early(a) words, the tortfeasor who is found to be nonimmune(predicate) or likely for a persons injuries will likely be required to turn over restitution.DamagesUnder most tort constabularys, the injury suffered by the plaintiff does non meet to actually be physical. A tortfeasor may be required to pay remediation for other types of harm, including emotional distress or a violation of individual(prenominal) rights.TypesJoint Liabilityvicarious LiabilityLiability to/for Third Partiesplaintiff/victim LiabilityStrict LiabilityP bent Liability.DefinitionContractual liabilityis defined as liability that does not arise by agency of negligence, but by assumption under contract or arranging.ExplanationA contract is a legal binding agreement amid two or more persons. When you sign, or agree to the cost of a contract, then you have accepted the contractual liabilities set forth in the document.DamagesLiabilities are things that you offer be held accountable for, and may have to repay or replace, in the event that they occur. For example, a rentersagreement may state that, If upon moving out of the premises stated in the contract, every part of the premises is destroyed, you may be accountable for and have to pay to repair, or replace the damage.TypesContractual liability can take umteen forms, but is basically holds you accountable for damages that are stated in the contract. For example, Commercial contracts, domestic contracts and so forth.Task 2 (AC3.2)Negligence is a failure to use commonsense trouble that results in harm to another(prenominal) party.There are four important elements to a negligence example that must be provenThe suspect owed a duty, either to the plaintiff or to the general publicThe defendant violated that dutyThe defendants violation of the duty resulted in harm to the plaintiffThe plaintiffs injury was foreseeable by a rational person.Donohughe V Stevenson (1932)This famous case formed the civilised justice tort of negligence and obliged manufacturers to have a duty of solicitude towards their customers. The events of the complaint took place in Scotland in 1928, when Ms may Donoghue was given a store of ginger beer, purchased by a friend. The bottle was subsequently discovered to contain a decomposing snail. Since the bottle was not of sop up glass, Donoghue was not aware of the snail until she had consumed most of its contents. She later on fell ill and was diagnosed with gastroenteritis by a doctor. Donoghue subsequently took legal action against the manufacturer of the ginger beer, Stevenson. She lodged a writ in the Court of Sessions (Scotlands highest civil court) seeking 500 damages.Because her friend had purchased the drink, Donoghue could not sue on the al-Qaida that a contract had been breached her lawyers instead had to claim that Stevenson had a duty of disquiet to his consumers and that he had caused injury through negligence an area of civil law that was largely untested at that condemnation. Stevensons lawyers challenged the action on the butt that no precedents existe d for such a claim. However Donoghue was later granted digress to appeal to the House of Lords, which then had the judicial authority to hear appellant cases. The leading judgement, delivered by Lord Atkin in 1932, established that Stevenson should be responsible for the well-being of individuals who consume his products, given that they could not be inspected. The case was returned to the buffer court Stevenson died before the case was finalised and Donoghue was awarded a reduced summate of damages from his estate.This case established several legal principlesFirstly, that negligence is a clear-cut tort. A plaintiff can take civil action against a respondent, if the respondents negligence causes the plaintiff injury or firing of property. Previously the plaintiff had to demonstrate some contractual order for negligence to be proven, such as the sale of an item or an agreement to provide a service. Since Donoghue had not purchased the drink, she could prove no contractual arr angement with Stevenson yet Atkins judgement established that Stevenson was understood responsible for the wholeness of his product.Secondly, manufacturers have a duty of care to consumers. agree to Lord Atkins ratio decendi, a manufacturer of products, which he sells to reach the ultimate consumer in the form in which they left him owes a duty to the consumer to take conjectural care. This precedent has evolved and expanded to form the basis of laws that protect consumers from foul or faulty goods.Thirdly, Lord Atkins controversial neighbour principle. Here Atkin raised the question of which people may be at a time affected by our actions, our conduct or things we manufacture. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and straightaway affected by my act that I ought to have them in mind when I am I am considering these acts or omissions.Task 3 (AC3.3)Vicarious liability is a situation in which matchless party is held partly responsible for the unlawful actions of a tercet party. The third party also carries his or her own share of the liability. Vicarious liability can arise in situations where one party is vatical to be responsible for (and have control over) a third party, and is absent in carrying out that responsibility and exercising that control.If an employee injures someone in the gradation of their troth, the employer may be subject to vicarious liability. This scarce means that the hurt person may be able to win compensation for the harm from the employer, rather than the employee.This is not to say, though, that the employee can constantly count on acquire away scot-free. Even if in that respect is vicarious liability, the injured person does not necessarily give up any right he may have to pursue the employee individually. If, for some reason, the injure d person is unable to adopt full compensation from the employer, then he might seek to find oneself the balance from the employee. In addition, the employer may well seek reimbursement for any mensuration paid to the injured person (although in practice this rarely occurs). ecumenically, employers divergence vicarious liability claims on the following groundsThe person who caused the harm was not an employee, but an independent contractor or other non-employee histrionThe employee did not harm the injured person in the railway line of the employees function.An typification of the test is provided by two contrasting cases, Limpus v London General Omnibus telephoner and Beard v London General Omnibus Company, both involving pathway collisions. In the former, a driver pulled in front of another adversary omnibus, in order to obstruct it. Despite express prohibitions from the employer, they were found conjectural this was merely an unauthorised mode of the employee carrying o ut his duties ( operate), not an entirely in the raw activity. By contrast, in the latter case, London General Omnibus Company were not liable where a conductor (employed to collect fares on wit the bus) negligently chose to drive the vehicle instead this was completely extraneous of his duties.LO 4 Be able to apply principles of liability in negligence in business situationsTask 4.1(AC4.1)A tort, in common law jurisdictions, is a civil wrong which unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the act. Although crimes may be torts, the cause of legal action is not necessarily a crime, as the harm may be due to negligence which does not amount to fell negligence. The victim of the harm can recover their loss as damages in a lawsuit. In order to prevail, the plaintiff in the lawsuit must fork up that the actions or lack of action was the licitly recognizable cause of the harm. The equivalent of tort in civil law jurisd ictions is delict.Tort law is different from criminal law in that (1) torts may result from negligent but not intentional or criminal actions and (2) tort lawsuits have a lower burden of proof such as preponderance of evidence rather than beyond a reasonable doubt. Sometimes a plaintiff may prevail in a tort case even if the person who caused the harm was acquitted in an earlier criminal trial. For example, O.J. Simpson was acquitted in criminal court and later found liable for the tort of wrongful death.Torts may be reason in several ways, with a particularly common division mingled with negligent and intentional torts. The standard action in tort is negligence. Negligence is a tort which arises from the breach of the duty of care owed by one person to another from the perspective of a reasonable person. The majority driven that the definition of negligence can be divided into four character parts that the plaintiff must prove to establish negligence. The elements in find the liability for negligence areThe plaintiff was owed a duty of care through a special relationship (e.g. doctor-patient) or some other principle.There was a dereliction or breach of that duty.The tortfeasor directly caused the injury but for the defendants actions, the plaintiff would not have suffered an injury.The plaintiff suffered damage as a result of that breach.The damage was not too remote there was proximate cause to show the breach caused the damage.Elements of NegligenceProximate causeProximate cause means that you must be able to show that the harm was caused by the tort you are suing for. The defence may contest that there was a prior cause or a superseding interfere cause. A common situation where a prior cause becomes an issue is the personal injury car accident, where the person re-injures an old injury. commerce of careIt arises when one party creates a scenario that has the potential to harm the other party. Duty focuses on relationship between the two partiesThe t est whether the defendant owes a duty of care to plaintiff includesWould a reasonable person have foreseen that the actions would have caused harm to the plaintiff? tenable person represents an objective standard. dishonour of dutyBreach of duty occurs when a reasonable person is not exercising the degree of care that would have expected from him/her in that situation. Reasonable person is an intermediate person. It does not require perfection, but takes into account that an average person does not foresee every risk. The average person is not assumed to be flawless, but ordinarily careful and prudent.Actual sufferingActual harm could be in the form of physical or emotional injuries, property damages or financial loss.The main reclaim against tortious loss is compensation in damages or money.According to the scenario, Chris was in an internet cafe. He got up to purchase a drinking chocolate and was slipped on some water that was on the floor and broke his arm. This depends upon the intention of Chris. If Chris slipped intentionally and did foresee this accident, then the cafe will not be responsible for the damages caused. If this is not the case, then the elements of negligence need to be applied to see if Chris can claim the damages.Negligence is important fit to look at, means that the defendant (the cafe) failed to act in a reasonable manner under the circumstances. For example, it is reasonable to expect that the cafe lay a warning signs in recently mopped areas or wet surface. If this is not done, then it means that the cafe did not fulfil the duty of care. Chris can claim damages as a result of it as he slipped and broke his arm. There are various implications on the scenario in terms of duty of care, negligence (intentional or otherwise) and it is up to the court to decide the outcome.Task 5 (AC4.2)Two clear elements must be established in order to establish a vicarious liabilityWas the tortfeasor the defendants employee andWas the tortfeasor p laying in the course of his or her commerce at the time the tort was committed.The existence of a relationship of employer and employee some tests have been suggested for distinguishing between a contract of service and a contract for services. These includeControl test Ready Mix Concrete Ltd v Minister of Pensions and National Insurance (1968)Integration test Stevenson Jordan Harrison Ltd v MacDonald Evans (1952) presidency Test Albrighton v Royal Prince Alfred Hopital (1980)The ultimate question will always be whether a person is acting as the servant of another or on his own behalf and the answer to that question may be indicated in ways which are not always the same and which do not always have the same significance.Conclusion as to whether defendant is an employer or contractor.If the defendant is an independent contractor the employer cant be vicariously liable for the acts of that contractor. The employer will only be liable (as a primary liability) if the employers tor tious duty is, in law, non-delegable Kondis v STA Burnie Port Authority v General Jones Pty Ltd.Was the employee acting within the course of employment?General rule is that whilst acting in the course of employment the employer is not vicariously liable for independent wrongful acts of employees (Bugge Brown).In ascertain the scope of the employment relationship the actions of the employee must be reasonably concomitant to employment i.e. the employer is not vicariously liable if the employee is on a merriment of their own (Joel v Morison).(Situations to consider the necessary authorities)Wrongful mode of terminate authorised act employer vicariously liable (Bugge Brown)Express prohibition by employer not necessarily a defence if the employees act was still a mode of doing what he employee was employed to do employer vicariously liable (Century Insurance Company v Northern Island Road Transport).Acting outside scope of employment relationship employer not vicariously liabl e (Koorang Investments v Richardson).Driving casesFor example, there are a number of truck driving cases where the court has had to decide whether the driver was acting within the course of his employment when driving the vehicle outside a designated route.Essentially, the pattern seems to be that if the drivers subscriber line is to get from Point A to Point B, and his deviate from the designated route was simply another way of getting to Point B, then he is acting within the course of his employment.On the other hand, if the driver takes a detour for some other, non-business purpose (such as picking up a young lady and taking her shopping) then he would likely be regarded as acting outside the course of his employment.According to the scenario, Trevor is a driver who drives a camion for a Haulage firm. He delivers deliveries for the company which suggests that he is an employee of the firm. Whilst at work, he detours the lorry and meets his girl friend. This is a non business p urpose which means he is acting outside the scope of his duties. As he leaves his girlfriends house to continue deliveries, he negligently crashes into a car park.As stated above, two conditions must be met in order to establish a vicarious liabilitywas the tortfeasor the defendants employee andWas the tortfeasor acting in the course of his or her employment at the time the tort was committed.In this case, the tortfeasor was Chris and the defendant is the Haulage firm. Chris was an employee and also he was acting in the course of his employment to meet his girlfriend and later on crashes his lorry. The vicarious liability is established and hence Chris is liable and not the haulage firm.ReferencesTort Liability (2014). Available http//www.legalmatch.com/law-library/article/tort-law-liability.html. Last accessed 10 March, 2014Donoghue V Stevenson (1932). Available http//lawgovpol.com/case-study-donoghue-v-stevenson-1932/. Last accessed 12 March, 2014.Negligence (2014). Available http //www.lawyersandsettlements.com/lawsuit/negligence.html?opt=cutm_expid=36075225.Uj6X3hD9S1KR79nt0Iy0tA.1utm_referrer=https%3A%2F%2Fwww.google.co.uk%2F.UySBAj9_sSM. Last accessed 12 March, 2014Accidents and injuries (2014). Available http//www.findlaw.co.uk/law/accidents_and_injuries/accident_claims/500045.html. Last accessed 13 March, 2014Vicarious Liability (2014). Available http//en.wikipedia.org/wiki/Vicarious_liability_in_English_law. Last accessed 13 March, 2014Breach of duty (2014). Available http//en.wikipedia.org/wiki/Breach_of_duty_in_English_law. Last accessed 14 March, 2014Tort (2014). Available http//en.wikipedia.org/wiki/Tort. 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