商务契约关系 outcome3.doc

1a. Explain the duty of care The meaning of duty of care is no liability for a failure to take due care unless there was a duty to take care in the first place. A duty of care is imposed by both the common law and by statutory law. For example, the provisions of the Health&Safety At Work Act1974. The duty of care is therefore someone whom the defender ought to have contemplated as within sufficient proximity to the defender to be owed a duty of care. 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 directly affected by my act that i ought reasonably to have them in contemplation when i am directing my mind to the acts or omissions which are called into question. In the Donoghue v Stevenson(1932) case, in this case, Mrs. Donoghue bought an opaque bottle of ginger beer for her friends in a cafe in paisley, and the shopkeeper poured some ginger beer over ice cream in a glass which Mrs. Donoghue drank.Then ,her friends find out the decomposed snail in the bottle.Mrs. Donoghue alleged because drunk the contaminated ginger beer, she suffered a serious illness.Because Mrs. Donoghue didnt have a contract with the seller nor with the manufacturer of the goods, So the only saving way is the manufacturer not taking care in the production of the product.( Business Contractual Relationships F84N 34 P279-283)b. Is Carla correct? The common law and statutory law.It not correct, The definition of Common Law Duty is a personal one to take reasonable care for the employees safety. He is required to take the same care as a reasonable and prudent employer would take in the same circumstances. This includes a duty to provide safe working premises. And about the Statutory Duty, the main statute here is the Health and Safety At work Act 1974 (HASAWA). This was imposed on earlier existing safety legislation which was not repealed, and so earlier legislation regulating safety in the workplace can still be relevant. And the implied terms are those which are not actually stated, but still impose obligations on the parties, and the reasons such as necessary to make the contract work, obvious or assumed, by custom and practice, by statute.( Business Contractual Relationships F84N 34 P326-329)2. The defences about the contributory negligence and Volenti non fit injuria About the contributory negligence, as well as the above defences, a defender may argue that the pursuer contributed to his or her own losses. And the defender has been negligent but the pursuers own actions, in failing to take care for his own safety, have partly contributed to his injuries. For example, in the case about Sayers v Harlow Urban Council (1958), Sayers because of trying to climb out of a faulty locked toilet cubicle, she got hurt. And her actions were not a novus actus interveniens , the local authority was liable. However, because she tried to climb out whilst putting weight on the toilet roll fitting which was fragile, the damages payable were reduced by 25%. In the case, Chris get hurts because of he fell from the ladder he was on , no one help him with the ladder. But the company during him training always say when he do this work need a person to help him to with the ladder. But he dont ask anyone to help, this is a contributory negligence.The meaning of Volenti Non Fit Injuria , it must be shown that the pursuer freely and voluntarily with full knowledge of the risk involved agreed to take that risk. The defender must establish that the pursuer had free choice and this would not apply if he/she acted out of duty or out of fear of losing his/her job. in the case of Walton&Morse v Dorrington(1977), a secretary worked in an office where colleagues smoked but there was good ventilation. When they were moved to another office without such ventilation the smoke became an irritant and she left when the employers would not make any changes. The employers were held in breach of a duty to provide a working environment which is reasonably suitable. In the case, this work which Chris always do it, Chris know the risk of this work, but he dont ask anyone to help, causes him fell from the ladder. This is Volenti Non Fit Injuria.( Business Contractual Relationships F84N 34 P300)3. Explain Negligence Negligence is the most common delict and an action in delict arises where harm is caused carelessly or inadvertently. The law of negligence has developed to protect individuals from physical harm to the person(including psychiatric harm), and to property. Financial interests (with some exceptions) are only protected where the financial loss is consequential to the harm to the person or to property. in the case of Bourhill v Young (1943), the defender drove a motorcycle , and he collided with a car and was killed. The pursuer was on the far side of the tram when the accident occurred and did not witness the accident although she heard it. And she saw blood on the road later, then because of the nervous shock, get a subsequent miscarriage. It was held that it is not the fault of defender, because defender could not have reasonable foreseen, and would causes injury to the pursuer in her position behind the tram, she did not have the relevant proximity to the accident.( Business Contractual Relationships F84N 34 P278)4. Explain what vicarious liabilityThe definition of the Vicarious Liability , in certain circumstances, someone can be liable for anothers delictual act. This can arise through agency, partnership and employment. Liability is transferred to the person benefiting or gaining by the actions of the wrongdoer(and they are more likely to be able to pay and/ or be covered by insurance). in the case of Lister v Romford Ice and Cold Storage Co(1957), a father and son were employed by the same company. The son , whilst driving a lorry, Knocked over his father who claimed damages from the company. The companys insurers paid the father and then brought a successful action against the son for the amount paid.( Business Contractual Relationships F84N 34 P266-275)5. Which latin maxim proven to successfully bring a claim for negligenceThere have to be three elements present for a delict- damnum, injuria datum- or loss caused by a wrong. As noted above there must be three elements present: Damnum is a loss or injury, such as physical or personal injury, the loss of earnings, nervous shock, distress, damage to a reputation. Loss can include damage to a person(Personal injury), damage to property, financial loss or interference with the peaceful enjoyment of propertyInjuria datum is caused by a legal wrong(wrongful conduct), an act may constitute both a crime and a civil wrong. For example, an assault can be both a criminal offence and a civil wrong. The criminal offence is prosecuted by the state, and damages may be payable after separate civil action by the injured party.Loss caused by a wrong is caused by culpa( fault, intentionally or negligently done) on the part of the wrongdoer. The pursuer should prove: causa