Restitutionary Rights to Share in Damages - Essay Example

? Business Law Section A Part Background Lancung Transport bus travels from Singapore to Kuala Lumpur. Along the highway, the driver suddenly brakes to avoid hitting a lorry. 25 of the 40 passengers were injured with sprains, broken bones, bruises and cuts. Investigations show that the passengers had been dancing to music at the back of the bus. A party had started in the bus when it had left Singapore, and continued despite the driver’s exhortation for the dancers to sit. a) The grounds for action in law open to passengers of Lancung Transport The bus driver is responsible to take care of the passengers. Therefore, he should be attentive while driving. Moreover, he should also drive the bus within their speed limits to ensure safety of the passengers. The driver must ensure that the passengers are wearing seat belts while travelling. Here in this case, despite of the driver’s continuous exhortation for the passengers to sit, they continued dancing. Although, driver is responsible for not driving carefully, but the passengers are also equally responsible. According to Road Accident Compensation, any passengers who have suffered from personal injury and are involved in an accident are entitled to claim damages. Therefore passengers involved in bus accident have certain rights to claim for their compensation for the injuries caused due to accident (Twigg-Flesner et. al 291). Therefore passengers involved in bus accident have certain rights to claim for their compensation for the injuries caused due to accident. Here, as the bus driver is responsible for the accident; therefore the claim by the passengers is made against the bus transport company who has hired that bus driver. The passengers can state the following possible cause for claiming compensation Drivers possessing less experience negligent driving unsafe bus other exceptional circumstances Compensation to Passengers The passengers injured due to bus accident need to take advice from solicitors who helps in quick settlement of the damages and compensation by the injured party (Great Britain et.al 24). The Motor Accident Compensation Act 1999 states that the passengers injured can claim their maximum possible compensation. But the compensation depends upon the extent of damages held by the passengers. The damages incurred are classified as General Damages and/ or Special Damages (Merkin & Stuart-Smith 765). Under General damages, it is the right of passengers to claim compensation for the sufferings and pain they have received i.e. loss of amenity. This compensates passengers for their injuries and the ways those injuries has affected their life (Twigg-Flesner et. al 274). The General Damages considers the inability of passengers to do work after the accident that they use to do before accident such as walking, gardening etc. Besides this, this type of damages also considers the period of sufferings that will clear that the injuries caused are temporary or permanent in nature. The Special damages are the compensation for expenses and losses that has incurred by the passengers. Under this, the person/ company responsible reimburses financial losses i.e. injury related cost and loss of earnings to the passengers injured (Australian Current Law 56). The passengers have right to claim any medical expenditures related to the accident so that the financial loss of passengers could be compensated. Thus, the passengers injured have right to take action against transport company who will settle their damages such as loss of earnings, travelling expenses, assistance and care, future loss of earnings, special care aids, assistance for household chores etc. b) Lancung Transport liable for the action of the driver Road Traffic Act 1988 states that all coaches and buses on British roadways and motorways must be ensured. Some bus service or transport companies can be privately insured; however, in both cases the passenger’s right to claim bus accident compensation remains same (Merkin & Stuart-Smith 740). Besides this, The Public Services Vehicles Regulations 1990 is formed to protect passengers of public transport and also facilitate them in claiming accident compensation against the coach or bus companies in case of failure of duty and/ or due to driver’s carelessness that has caused the accident (Australian Current Law 56). Although the accident caused was due to driver’s negligence but the injuries, pain and sufferings caused to passengers were much severe. Therefore, The Lancung Transport is liable for the actions of the driver. Therefore, the law states certain regulations to protect passengers while travelling on motorways. The hiring company must ensure that the driver hired for the transport services are experiences and qualified. Moreover, the drivers must be provided with adequate training and carries driving licences while carrying passengers from one place to another (Twigg-Flesner et. al 260). c) Lancung Transport’s defence against their claim The Lancung Transport Company has to settle the compensation claims of the passengers. However, the company can reduce their claims by providing supporting evidences about the party enjoyed by passengers during travelling which shows that they were not wearing seat belts. This could reduce compensations or damages by up to 25% (Merkin & Stuart-Smith 743). Part 2 Background Makan Paradise, an upmarket restaurant, is famous for its Pelahap Steak. There is always a long waiting list of guests who want to get a seat in the restaurant to enjoy the steak. When an individual book a table or arrive at a restaurant, he or she is entering into a legal contract with the restaurant. Therefore, both the restaurant owner and the person entering restaurant has certain obligations that must be fulfilled. The Supply of Goods and Services Act 1982 (Godsmark 164) have some obligations that must be fulfilled by restaurant. These obligations include providing services to diner with reasonable skill and care (covering the preparation of food and services provided), to provide services within reasonable time and the quality of food should be satisfactory as described on the restaurant menu (Degeling 87). a) Mr Gan’s late arrival at restaurant As Mr. Gan has booked a table at a restaurant, he entered into a legal contact with the restaurant. Although Mr Gan and his guest arrived 20 minutes late, the restaurant captain should not have given that table to other diner (Barth et.al 223). Thus, there has been breach of contract by the captain of the restaurant. Claim for Compensation As restaurant captain is responsible for the breach of contract, therefore Mr Gan is entitled to claim a reasonable amount of compensation which covers the expenses including travelling expenses and the inconvenience or disappointment aroused due to cancellation of booking by restaurant captain. However, if Mr Gan fails to provide reasons of turning up late at the restaurant, than a restaurant can also claim compensation from him (Barclay 109). Counter Offer A counter offer of complementary dinner or any other free services could be made by the restaurant captain to Mr. Glan to avoid the claim compensation made by him. b) Restaurant failed to provide belecan sauce to Mr Jom When a person is dining out, he or she have a right to expect a certain standard of service. Therefore, the diner’s have right to be provided with the services offered by the restaurant (Barth et.al 217). Mr Jom invited some friends to have lunch. Any individual who enters into a restaurant expects certain standards of services to be performed by restaurant. Here in this case, Mr Jom and friends wanted to have belecan sauce with Pelahap Steak for lunch but the restaurant failed to provide belecan sauce as it was sold out. Claim for Compensation According to The Supply of Goods and Services Act 1982 (Godsmark 164), if an individual does not get the level of services offered by the restaurant, it would result in breach of contract. Here, Mr Jom is entitled to receive compensation. Section B Part 1 Background “Wetmocks”, is a venture mutually owned by Wom and Nert. The business was initiated with an initial investment of $25,000 from each partner. They started earning huge profits with the success of “Wetmocks”. After running the business for consecutive five years, the partners are advised to be careful about the unlimited liability associated with the partnership and to revive it by incorporating a limited liability organization in the form of private limited. a) Advise to Nert and Wom as to their liabilities if their business fails while they carry on as partners Partnership Act 1890 Partnership Act 1890, is the fundamental source of Partnership Law in U.K. which not only provides provisions for any enterprise to be categorized as partnership or not. According to s 1(1) of this act, partnership can be simply defined in Partnership Act 1890’s 1(1) as the connection which survives between people doing a common business to earn profit. Liabilities of partnership in case of business failure The partnership grants unlimited liability to its member either in case of profit or loss. According to s 24(1) of Partnership Act 1890, subject to opposite agreement, all partners are permitted to equally share in the profits and capital of the partnership and should equally provide towards losses. Although the partnership guarantees full authority to each partner, the unlimited liability associated with it is a major source of risk. Partnership enables easy access to funds available to partners but also provides insecurity in case of losses. Since, ‘Wetmocks’ is expanding; it would be advantageous to enter into limited liability partnership form. b) Advantageous to Wom and Nert to incorporate their business into a Private Limited Company Limited Liability Partnerships Act 2000 The main benefit of a LLP is that its members have the ability to limit their individual liability if the business ruins or fails. Since, Wom and Nert are also experiencing an inherent threat of unlimited liability; they can limit it by incorporating their business into a limited liability company. However, the profits earned by LLP are subject to corporate tax. The dividends earned in such a case will be considered as earning of the members. The difference in the way taxation provisions are applied to the business forms under consideration is also a contrasting factor. However, it ensures flexibility, by providing the ability to segregate different rights (Morse 3). Part 2 Background Boon Chit visits an Indian restaurant, the Garden of Kashmir, and places the order of tandoori chicken. While eating the chicken, Boon Chit chews something hard and starts screaming with pain and spitting out blood. He realises that he chewed a hard plastic piece and finds a number of plastic pieces in other parts of the chicken. Boon suffers a week because of the injury and also incurs medical expenses. When a person purchases either services or goods, the law provides consumer rights to provide protection against unfair treatment of trader. If any harmful or unsafe food is served to a customer, then the trader has been said to have stanch an illegal offence. In the given case, Boon Chit has the right to report the incident to a local health department, who may start investigation in this regard (Howells and Weatherill 540). Food poisoning There is a provision as defined by the advice guide of U.K., that if the food served has caused food poisoning, then the trader can sued and bound to compensate for the loss along with the refund. Medical reports are required as evidence in this regard. Since, in this case, Boon Chit didn’t suffered food poisoning but was injured by the inappropriate ingredients of the food; he has the right to claim the Garden of Kashmir’s owner to compensate for the medical expenses along with the refund. Defining poor quality or unsafe food Food is said to be unsafe for eating if: 1. It is injurious to health due to improper treatment or cooking or the inclusion of injurious ingredients. 2. It is not fit for consumption due to decomposition or deposition of moulds. 3. It is infected to the level that could not be considered reasonable for consumption due to inclusion of extended levels of pesticides, additives and chemicals. The above mentioned definition also substantiates the proposed claim as the food served cause a medical injury and required a week to let the Boon Chit recover. He may sue the restaurant along with the medical report of his injury to serve as evidence. Part 3 Background Jolok, the Catering Services Manager, has the authority to order food on behalf of the employer, for the catering purposes of their conferences. His work frequently involves ordering snacks and finger food from Frowning Rose Catering Pte. Ltd. For a conference held, Jolok orders from the catering services food of $1200, while the actual requirement was of $650. The rest of food he utlises at his private party where Barry, his colleague, notices the food has been catered by the same catering service and investigates the matter. The fraudulent activity of Jolok was traced and the employer decides to pay $650 to the Frowning Rose Catering Pte Ltd, instead of $1200 invoiced by the catering service. a) Relationship between agent, Principal and third party The agency law is a business necessity in each urbanized economic system. Manufacturers may pass on the responsibility, to an authorized agent, of procuring raw materials. In a similar way, wholesalers might vend their goods via commission agents or trade representatives. Hence, the agent is required to bargain on the principal’s behalf or bring third parties and him into an agreement. This division of law regulates and separates the relationships among principals and agents, third parties with whom agents deal and agents and third parties and principals. Agent’s legal responsibility to third party The agent is not considered liable, if he has apparent or actual authority, to the acts performed within the scope of his authority as long as the agency relationship and the principal’s identity are disclosed. If the agency relationships are disclosed then both principal and agent bear the liability. If the principal is not trussed as there is no apparent or actual authority of the agent, in such a case the agent is solely liable in case of breach of implied warranty, to the third party. Agent’s legal responsibility to principal In case the agent acted devoid of real authority, but the principal is even bound due to the apparent authority of the agent. In such a case, the agent has the liability to underwrite the principal to compensate for any consequential damage or loss. Principal’s legal responsibility to agent In case the agent acts within the scope of his authority, the principal should underwrite the agent for expenses made during the contract, whether the spending was merely necessary or explicitly authorized in advancing the business. b) Agency Creation The agency authority is created by various ways. These are It is created either by ratification, by law operation or by mutual consent. If a principal expressly assigns an individual the agent authority, this leads to the creation of express. However, the mutual conduct of parties may imply this relationship Agency of necessity may be created in specific circumstances. An apparent or perceived agency relationship results if the principal grasps out that the authority of the agent is greater than actual, to a third party. Retrospectively, it can be created through the contract’s ratification (Fridman 230). c) Firm’s liability to pay the sum to Frowning Rose Catering Pte. Ltd Background Jolok, the catering service manager has been authorized by the training firm employer to act on his behalf for the catering services of the firm. So in the given case, the employer’s conduct created reasonable expectations of Frowning Rose Catering Pte. Ltd that Jolok is authorized to establish contractual relationship with third parties. In the given case, Frowning Rose Catering Pte. Ltd is allowed to impose the catering contract against the training firm as it was negotiated via agent. Agency by Estoppels It is a legal relationship without any formal agency agreement. In agency by Estoppels, a Principal can give his appearance of agency relationship from which he cannot deny or it could be said that the principal is bound by the acts performed by the agent on principal's behalf (Fridman 225). Firm’s liability to pay the sum to Frowning Rose Catering Pte. Ltd For the given case, the training firm is liable to pay the whole amount to the Frowning Rose Catering Pte. Ltd, as it served its client through an authorised agent. i.e., Jolok. Frowning Rose Catering Pte. Ltd may sue the employer for breaching the contract and to receive the adequate compensation for their service. The fraudulent activity of Jolok should be investigated within the firm and the loss incurred should be compensated from the agent’s salary. Work Cited Australian current law. Butterworths, 1984. Print. Barclay, Liz. UK Law and Your Rights for Dummies. John Wiley & Sons, 2011. Print. Barth, Stephen, et.al. Restaurant Law Basics. John Wiley & Sons, 2001. Print. Degeling, Simone. Restitutionary Rights to Share in Damages: Carers' Claims. Cambridge University Press, 2003. Print. Fridman, Gerald H. The law of agency. Butterworths, 1996. Print. Godsmark, Carol, Michael Garvey & Andrew Dismore. Starting and Running a Restaurant For Dummies. John Wiley & Sons, 2007. Print. Great Britain, Parliament, House of Commons & European Scrutiny Committee. House of Commons European Scrutiny Committee Third Report of Session 2009-10: Documents Considered by the Committee on 9 December 2009. The Stationery Office, 2009. Print. Howells, Geraint G. and Weatherill, Stephen. Consumer Protection Law. Ashgate Publishing, Ltd., 2005. Print. Merkin, Robert and Jeremy Stuart-Smith. The Law Of Motor Insurance. Sweet & Maxwell, 2004. Print. Morse, Geoffrey. Partnership Law. Oxford University Press, 2010. Print. Twigg-Flesner, Christian, et. al. The Yearbook of Consumer Law 2008. Ashgate Publishing, Ltd, 2007. Print. Read More