HND商务契约关系报告.docx

Case 1 Question 1 From the case has a duty of care. And this case is about the delict. Delict is about a civil wrong committed by a person in deliberate or negligent breach of a legal duty, from which liability to make reparation for any consequential loss or injury may arise. And in there has three elements present, first there is a loss or injury, such as physical or personal injury and the loss of earnings, nervous shock, distress, damage to a reputation. The other is caused by a legal wrong. Last is the caused by culpa on the part of the wrongdoer.At the case Tom and Danny has vicarious liability. The vicarious liability is an example of joint and several liability as the injured party can sue both the employee and the employer. So in the case Danny has a duty of care with McGregor.A duty of care is a legal obligation imposed on an individual requiring that it adheres to a standard of reasonable care while performing any acts that could foreseeably harm others. And the first element must be established to proceed with an action in negligence. And the pursuer must be able to show a duy of care imposed by law which the defender has breached. In turn, breaching a duty may subject an individual to liability in delict. It is not a requirement that a duty of care be defined by law, though it will often develop through the jurisprudence of common law. So in some way, duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individuals towards others within the society.For example: Donoghue v Stevenson 【 1932 】That is about Mrs Donoghue had gone to a cafe in Paisley with her friend who bought her an opaque bottle of ginger beer. Mrs Donoghue has find a decomposed snail in the bottle of ginger beer when her had drunk the beer. Mrs Donoghue alleged that as a result of having drunk the contaminated ginger beer she suffered a serious illness. Mrs Dononghue didnt have a contract with the seller nor with the manufacturer of the goods and so was she can possible remedy in delict against the manufacturer on the basis of his fault in not taking care in the production of the product.Question 2The standard of care should Mrs McGregor have been entitled to expect from Danny is the standard of care varies according o the particular circumstances. Something like driving in a icy conditions would require a greater standard of care than in normal weather conditions. Like the case of Nettleshio v Weston (1971), a learner driver owes the same standard of care to the other road users as an experienced driver, as another road users and pedestrians are entitled to expect a certain standard of care.From this case Danny must pay more attentions on check and repair the break of McGregors car. As a result of, Danny understand if he cannot ensure there has not any worry with the brake of McGregors car, it may make the accident happen. And it would be a terrible result. But the end Danny did not spend more time on McGregors car, he just worked on it for about 45 minutes. And after that he only tightened some screws and the problem appeared to have been sorted. Thats all is Danny didnt reach his standard of care.Question 3Yes I think McGregor can claim damage compensation. Because this case is belong of the delict of negligence. In the case it is essential that the pursuer proves that the defenders wrongful negligence has caused harm or injury to the pursuer. There is a causal link must be established and the breach must be the factual cause of the loss. This is known as the case sine qua non. And it is also necessary to prove that the breach was the causa causans of the loss, or the legal cause in the sense of the effective or immediate cause.In the case, because of McGregors car brakes failed so the accident was happen. And McGregor also injured in the accident. Before accident she had put her car in the garage to check and repair, but Danny didnt pay enough attention to check and repair. So Dannys negligence is the reason why the accident happen and make McGregor injured. And McGregor can give enough proof to prove her car crash is the reason by Dannys negligence. And the court can according the effective cause to rule that Danny or the garage owner should pay the compensation of damage to McGregor.Case 2Question 1The liability applies to the keeper of an animal is The Animals (Scotland) Act 1987 Act established provisions to clarify the strict liability for injury or damage caused by animals-that is liability even without deliberate or negligent conduct. It states that a person will be liable for any injury or damage caused by animal if three facts all apply:a) The person was the keeper of the animal at the time;b) The animal belongs to a species known as being likely;( i ) to severely injure or kill people or other animals, or( ii ) to materially damage property; andc) The injury or damage is directly related to those physical attributes or habits. The animals species known to be likely to injure or kill comprise dogs, and certain dangerous wild animals, which may injure by biting, or otherwise savaging, attacking or harrying.From the case Mark was the keeper of the dog. The dog belongs to a species known as being likely to severely injury or kill people or other animals. Because of the Animals (Scotland) Act 1987 Mark has strict liability with this accident.The strict liability is a legal doctrine that makes some persons responsible for damages their actions, belongings or products, regardless of any “fault” on their part.Question 2The precautions should Mark have taken when going for a walk in the country with Tricky are: a) take the dog chain; b) Sets a cap on the dogs mouth. That may be can help Mark and his dog.Question 3No he cant.Under the Animals (Scotland) Act 1987, the following defences are available to the keeper of an animal: if the injury or damage was due wholly to the fault of the pursuer eg where the pursuer goaded a docile animal which then attacked the pursuer in defence; where the pursuer has voluntarily accepted the risk ie volenti non fit injuria; injury or damage is caused by the mere fact that the animal is present on a road or elsewhere9 e.g. an animal straying onto a road and so causing a traffic accident )In this case, above three points are not satisfied, so Mark cannot defend for herself. Mark will carry out the strict liability.Another case like Behrens v. Bertram Mills Circus Ltd 【 1957 】 The cases is about the plaintiffs, husband and wife, were both midgets and were on exhibition inside a booth in the funfair at Olympia, for which their manager had obtained a licence from the defendants, when the booth was knocked down by elephants on their way to perform in the circus ring. A small dog, the property of the daughter of the plaintiffs manager, which, contrary to regulations, had been brought into the funfair, had run out of the booth, snapping and barking at one of the elephants, which turned and went after the dog; some of the other elephants followed, and pats of the booth fell on the wife who received injuries. Evidence was given that the husband and wife were exceptionally dependants upon each other. The court hold the circus should have taken precautions to prevent the elephant from causing harm. So he circus should be liable for the injury caused to the plaintiff.Case 3Question 1Five defences available to a defender in a negligence action:a) Statutory justification A person may have a good defence to an action in delict if he can show that his acts are covered by statutory authority.b) Self-defenceSelf-defence is valid defence if the defender acted to preserve himself, his family or his property, so long as the act was reasonable and in keeping with the nature of the threat. If a blow is struck in response only to verbal attract, there is no defence.c) Criminality The pursuer will be unable to claim damages if he and the defender were involved in criminal activity.d) IllegalitySimilar to the criminality defense, a person will not be able to maintain a cause of action if he has to rely on couduct which is illegal or contrary to the public policy.e) Volenti non fit injuriaIt is a common law doctrine which means that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they cannot then sue if harm actually results. It only applies to the risk which a reasonable person would consider them as having assumed by their actions.Question 2For the case a, Rab can defend by the defence of criminality. From the statutory justification: A person may have a good defence to an action in delict if he can show that his acts are covered by statutory authority. So Rab can defend because he and Jamesie were involved in criminal activity.For example: Ashton v. Turner 1981 RTR 54:After an evenings drinking three men committed a bur galary and sought to escape in a car owned by one of them. The car crashed and the passenger was injured. He claimed damages alleging negligence against the driver and the car owner. The court hold that dismissing the claim that as a matter of public policy the law might not recognize a duty of care owed by one participant in a crime to another for acts done in the course of that criminal commission.And in the case b, the driver can defend by the contributory negligence. From the contributory negligence, it is common law defence a claim based on negligence, an action in tort. It applies to cases where a plaintiff has, through his own negligence, contributed to the harm he suffered. Because the driver was negligence due then he didnt know Margaret would come out before and go across when the light change to amber, but the Margaret was negligent too.The cited is Hanlon v. Cuthbertson 1981:A female passenger in a taxi who was injured as a result of an accideng and he taxi driver argued contributory negligence because she was not wearing a seat belt which otherwise have protected her in the accident. The court hold the pursuer should have her damages reduced by ten percent as a result of the contributory negligence by herself.And the case c, Knockbuckle player who assaulted Gavin can defend by vonlenti non fit injuria