Business Law - Occupiers Liability Act - Essay Example

Business Law: Case Studies Part A: Occupiers Liability The occupiers of land or premises have a responsibility to ensure the safety of the visitors in their premises. The visitors could be the invited a guest or legal visitors in accordance to the Occupiers Liability Act 1957 and 1984 (Horsey & Rackley, 2013). The degree of responsibility the occupier of land owes the visitors depends on the degree of control the owner has over the land. This regulation covers death, personal injuries, loss of property and other damages likely to face the persons visiting the premise. The Act includes the employees as visitors deserving protection during their normal stay in the premise discharging their responsibilities (Harpwood, 2009, p. 222). This case examines the degree of responsibility the employer has over the visitors or workers and the extent to which their can disclaim that responsibility. The case involves Dabir an employee at Uxbridge University whose car was stolen from the university’s car park. According to the university policies, the limited parking space was only available for the workers living beyond ten miles from the University. Furthermore, the space was given on first-come-first-served principle. Since Dabir was living less than ten miles, he was not entitled to parking space in the university compound. However, the morning he arrived early he decided to park his car in the institution’s car park. Later he learnt his car was missing and after reporting he discovered he had no chance of recovering his car either with the help of the police of compensation from the university. The car park attendant informed him that he saw a stranger drive his car out and did not ask stop him because he thought he was a new member of the staff. After informing the security personnel at the university, they rubbished him and claimed it was a waste of time. Furthermore, the security personnel claimed that Dabir was not entitled to gate pass because he lived less than ten miles away. Dabir has been inconvenienced a lot because he has to board multiple vehicles before he gets to the place of work. The issue in this case is whether the university is liable for the loss of Dabir’s car, whether the university had done enough to discharge their responsibility whether Dabir was liable for contributory negligence (Howells & Schulze, 2009). It appears the main reason for the university restricting right of parking the car at the university’s car park was because of insufficient parking space. However, even the available space was on-first-come-first-served basis, and many people had to park their cars elsewhere. According to the Occupier’s Liability Act 1984, the occupier of the land has the responsibility to protect persons in his premises other than visitors against any injuries or deaths. Therefore, the university cannot disown their responsibility for the visitors under occupiers’ liability by arguing that Dabir was unauthorized to park his car at the university’s car park. The owner can discharge responsibilities owed to other persons by issuing sufficient warning concerning the possible risk. However, the university had not done so because even though they had written a notice to inform the visitors not to claim for any loss of theft, injuries, etc. The fact that they provided parking space was an indication of willingness to take responsibility for the visitors. Furthermore, Dabir can raise the issue of vicarious liability against the University for the Negligence of the security personnel and car park attendant. Vicarious liability is a doctrine of common law that imposes liability on the employers for offenses committed by their employees in ordinary performance of their duties (Crown, 2001). In the case of Short v J & W Henderson Ltd (1946), the court held that employers are responsible for the conducts of their employees since the employers have a duty to pay their workers, hire them, control their method of working and have the right to suspend or dismiss the workers. The conduct of the university’s security personnel and car park attendants depicts negligence in the performance of their duties that could have resulted to theft of the car. The car park attendants show a stranger driving Dabir’s car and ignored all security precautions they would have been expected to apply in their ordinary discharge of their duties. They lifted the barrier to allow the stranger drive out of the university compound without checking to establish who they were. The report from the police further indicated that about three cars had been stolen from the university car parking in a less than two weeks. Therefore, there was possibility that security personnel and the car park attendants were collaborating with thieves who were operating a cartel around the area as alleged by the police officer. Considering that university had not done enough to protect the visitors against injuries caused at the university or by the university employees, Dabir can raise a claim against the university under occupiers liability and vicarious liability to recover his stolen car and other damages caused since the time his car was take. It is the occupiers responsibility to protect all visitors during their legal visits at the premises. Furthermore, employers are responsible for the negligence of their employees responsible for injuries to third parties. Part B: Sale of Goods Act According to the contract of sale of goods, the seller agrees to transfer the property in goods to the purchaser upon receiving or promise to receive monetary consideration known as price. The sale of goods is said to have taken place where the transfer of property in goods and the giving of consideration occur concurrently (Atiyah, Adams, & MacQueen, 2010). A contract for the sale of goods follows includes elements such as offer, acceptance, consideration, capacity to contract, intention to enter into a legal agreement, etc. A contract for the sale of goods in UK follows the Sale of Goods Act 1979 and 1984 guidelines. The Act protects consumers against malpractices of the sellers by setting up terms for the sale of goods (Atiyah et al., 2010). This condition implies that sellers should ensure the goods they sell to the consumers are of merchantable quality fit for the intended purpose. Although the buyer should be given time to inspect the quality of the goods before they can decide whether to buy or not to buy the products, sellers will be held liable for defective goods where the buyer discovers defects that could not have been discovered without adequate investigation (Atiyah et al., 2010). Before the parties to a contract can enter into a legal agreement, they must demonstrate their intention to form a legal agreement. A contract can be formed either in writing, verbally or impliedly through the conducts of the parties involved (Howells & Schulze, 2009). The case involves Edwina, a bachelor of science in Business student at Uxbridge University and the campus bookstore of Uxbridge University. Edwina had bought a book for her course that she described to the bookstore assistant as the most up-to-date of the two editions (Business law by Anne Roberts and Business law Module by James Roll). The assistant recommended Business Law fifth edition by Anne Roberts a publication for June 2013 and informed Edwina that the other model was a January 2011 publication. However, learnt that the book she had bought was a reprint of the 2012th publication while the latest edition for the other book was published in January 2014. After the discovery, she returned the book hoping to get refund or replacement with the latest version. However, as things turned out the bookstore attendant refused to replace the book. Under the Sales of Goods Act 1979 buyers have the right to enjoy the property in goods without interference. According to the Act, the buyer and the seller makes a contract the moment the seller accepts to transfer the property in goods to the seller upon receiving the price of the good as consideration (Atiyah et al., 2010). The seller should have good title to the property before transferring it to the buyer at the time of sale. Also, the goods must correspond with a description if it was sold by description, must be of the exact quality and fit for the intended use, be free from defect and must be durable. In the case between the bookstore assistant and Edwina, the sale was by description. The buyer seems to have relied on the sellers expertise and requested for “the most up-to-date” book among the two required for Introduction to Business Law Module. The seller gave reprint of the 2012 edition while the latest publication of the other book was indeed published in January 2014. The case is similar to the case in Arcos v Ranaason [1933] AC 470, in which the buyer ordered for1/2 inch thick wooden staves for making barrels. When the staves were delivered most of them failed to comply with the specified measurements although they could still serve the intended purpose. The buyer rejected the goods not because they could not serve the intended purpose, but because the market price had dropped, and the buyer could get them at much less value. The court held that the buyer had the right to reject the goods because they did not correspond with the description as required by the consumer protection Act. Applying Arcos v Ranaason [1933] AC 470 case to the current case it is clear that the sale of the book was by description and the bookstore assistant did not comply with the description of the customer. Although the 2012 edition could serve the purpose intended by the buyer it did not meet the description since it was not the “most up-to-date” edition, she had requested for. The Act requires the buyer to return the goods that fail to comply with the terms of contract in exchange for the right products or full refund of the product less the charges for normal tear and wear due to usage of the product. Therefore, the buyer has the right to reject or accept the book (Howells & Schulze, 2009). Although the customer offered to return the book in exchange for the most recent edition, the bookstore assistant is adamant and wants the buyer to take the other copy and pay for its full price. The Act provides a procedure that the buyers can use to compel the seller to pay for defective products (Howells & Schulze, 2009). Considering the book she bought was not the latest model she had requested for it is apparent that the product had a defect because it was not the most up-to-date hence did not correspond with buyer’s description. I believe it is irrelevant whether the bookstore assistant was not aware of the latest 2014 edition because the buyer had specified that she needed the latest edition and the seller had a responsibility to sell the latest edition among the two. Furthermore, the seller recommended the book to the buyer, and the buyer relied on the recommendation of the seller to make a purchase. Therefore, since it turned out that the book she bought was not the latest edition she had ordered she has a legal right to return the book for full refund or in exchange for the latest edition as she had described. Furthermore, she was able to discover the defect within a reasonable time as required in the Act (Howells & Schulze, 2009). Since the seller is not ready to take responsibility she can raise the case before the court and request the court to compel the seller to refund the money in exchange for the book or provide the latest edition she had ordered in exchange for the book she possesses. In this case the bookstore has contractual liability (responsibility imposed by the terms of contract) against Edwina and should compensate her for the damages she has suffered as a result of defect in the goods such as delay in studies and time wasted. Concerning the broken arm Edwina become preoccupied with the discovery of books she had bought and since she was the last to leave the lecture hall the business law lecturer accidentally switched off the light causing her to slip and fall. In this case the University has vicarious liability for the damages caused by the lecturer to the student. “Vicarious liability is a liability in tort” in common law under the doctrine of respondeat superior that holds one party responsible for liabilities of a third party believed to be under the control of the superior party (Howells & Schulze, 2009). In this case the University is the superior party in control of the employees such as lectures. Therefore, the university should be held responsible for the liabilities caused by their employees to third parties such as Edwina in the ordinary course of their duties (Howells & Schulze, 2009). Edwina can sue the University to recover the damages for the injuries she sustained and the cost of the voice recorder she now uses to record the note as she cannot be able to write with her broken arm. The issue of contributory negligence may arise as defence mechanism by university in whereby they may argue that Edwina was preoccupied with the news of the book she had bought thus the University was not to blame for her injuries. However, considering there was no relationship between the switching of light and what was going on in claimants mind there is no evidence that her pre-occupation of mind contributed to her injuries. Furthermore, the switching of light has the proximate cause of injuries between the student and the lecturer (Howells & Schulze, 2009). Therefore, the issue of contributory negligence may not hold in this case. The cause could have been the negligence of the lecturer because he should have noticed her presence in the room and the consequences of his action before switching off the light. In conclusion, the Sale of Goods Act safeguards consumers against unfair practices by the seller. The sellers and buyers should comply with the contract requirements. The buyer should give consideration such as price of goods in exchange for the property in goods. Also, the sellers should ensure they goods sold correspond with the customers’ requirements such as "merchantable quality, fit for the purpose, free from defects and ensure they transfer good title of goods to the buyers." Where the goods fail to correspond with contract requirements such as a description of goods, the buyer has the option to accept or reject the goods within reasonable time and claim for a refund of price or replacement of goods. She can also sue the University under vicarious liability for the injuries she sustained after breaking her arm and for other damages. Part C: Unfair Dismissal The employee should follow due process to raise a complaint against the employer on the claim of unfair dismissal (Moses, 2012). In order for an employee to raise a claim of unfair dismissal, they should satisfy the requirements such as having worked for the employer for a minimum of two years. The claim can be raised through an intervention of a third party or the tribunal to establish the justification of the cause of dismissal. In the case between Edwina and her lecturer it can be argued that Edwina made a mistake by failing to seek the consent of the lecturer before taking the record of the lecture because that was breach of intellectual right. On the other hand, the lecture should not have shouted at the student because it was a tort and could demean her dignity in the presence of her classmates. However, considering that Edwina was in a class and what she did concerned other students it is likely lecturer did not make any mistake in reprimanding her in the presence of her colleagues who could be tempted to record the voice of the lecturer without his permission even with evil motives. Therefore, a lecturer should point out the mistakes of the student and let others understand the mistake and its consequences so that they can refrain from repeating the same in the future (Taylor & Emir, 2012). The employer should follow the guidelines established by the Advisory; Conciliation and Arbitration Service (Acas) or the Labour Relations Agency (LRA) when planning to dismiss an employee (Taylor & Emir, 2012). Otherwise, the employer may be forced to compensate the employee by the employment tribunal under the claim of unfair dismissal. According to Crown (2009, p. 2), the employers can take disciplinary action against the workers on the issue of misconduct or poor performance. It covers the conflicts arising in the performance of their duties. The code requires employees to be consistent, employers to carry out adequate investigations in order to establish the facts of the issue. They should inform the employees of the issues of conflicts, “allow employees to be accompanied at any formal disciplinary or grievance meeting” and allow employees to appeal against any formal decision made” (Crown 2009, p. 3). Employees and the employers should hold meetings within a reasonable time to establish the allegations of misconducts and issue warning to the employee in a written form indicating the consequences of repeating the mistakes. The employer should dismiss the employee who has failed to concede the warning and has continued with the acts of misconduct (Labour Relations Agency, N.d). In the case between Filippo and the university principal it is apparent the principal only listened to the grievances raised by the student against the lecturer. The principal did not give the lecturer a chance to clear himself of the blame raised against him. In addition, she did not give him any warning as required by the Acas whose subsequent repeat would lead to fair dismissal. Filippo had another one year to work before going for retirement. The university management had not raised any complaint against him prior to the issue he had with Edwina. Therefore, it seems that the university was satisfied with Filippo’s performance and conduct at work, and so he deserved a fair and just hearing before dismissal. It may appear that since Filippo was about to go for retirement the university may have dismissed him unfairly in order to avoid paying him a pension upon taking official retirement. There was no basis for paying him one-month salary after dismissal yet his retirement was a year away. Even for the employees with the issue of gross misconduct such as theft, gross, negligence, physical violence, etc. (Labour Relations Agency, N.d). In case the employer is to be terminated legally without any notice, they deserve fair disciplinary procedure before termination from the work. In the case of British Home Stores Ltd -v- Burchell; EAT 1978, Miss Burchell was dismissed on the basis of involvement dishonest staff purchases. In the hearing of the case the court established the procedure to be followed in order to determine the claim of unfair dismissal of the employees. The case led to the establishment of "Burchell test" to be applied by the tribunal when establishing the grounds for dismissal of an employee for alleged misconduct. For instance, the employer must ascertain that an employee was involved in the alleged misconduct requiring for his or her dismissal. The other issue to consider is whether the tribunal has sufficient basis for dismissing an employee. Finally, the tribunal should affirm they have conducted enough evidence to establish the reasons for dismissal of an employee for alleged misconduct. Considering the way the principal handled the issue between the lecturer and the student and the requirement for fair dismissal of the workers set in “Burchell test” as well as Acas and LRA codes it is evident that Filippo was unfairly dismissed. The principal relied on the claim raised by the student to terminate the lecturer without making proper investigation to establish the truth of the alleged issues. Furthermore, the lecturer deserved a fair and just hearing and a chance to appeal the decision of the tribunal in case he felt dissatisfied with the previous decision. An employee also deserves presentation in the tribunal before decision is arrived at (Crown, 2009, p. 8). Therefore, Filippo can raise a legal claim against unfair dismissal by the university. List of References Arcos v Ranaason [1933] AC 470. Atiyah, P. S., Adams, J. N. & MacQueen, H. L. (2010). The Sale of Goods Pearson. Pp. 1-571. British Home Stores Ltd -v- Burchell; EAT 1978. Crown, (2009). Code of Practice 1: Disciplinary and Grievance Procedures. Acas. Pp. 1-16 Available at Crown, (2001). United Kingdom Employment Appeal Tribunal. BAILII. Available at Harpwood, V.H. (2009). Modern Tort Law 7/e. Routledge. Pp. 222-324. Horsey, K. & Rackley, E. (2013). Tort Law. UK; Oxford University Press. Pp. 1-463. Howells, G. G. & Schulze, R. (2009). Modernising and Harmonising Consumer Contract Law. sellier. european law publ. Pp. 1-322. Labour Relations Agency, (N.d). Section 1: Disciplinary rules and procedures Code of Practice on Disciplinary and Grievance Procedures. Equality Commission for Northern Ireland. Pp. 1-52. Available at McKendrick, E. (2010). Contract Law: Text, Cases, and Materials. UK: Oxford University Press. Pp. 1-1021. Moses, M. L. (2012). The Principles and Practice of International Commercial Arbitration. Cambridge University Press, pp. 1-372. Short v J & W Henderson Ltd (1946. Taylor, S. & Emir, A. (2012). Employment Law: An Introduction. UK: Oxford University Press. Pp. 1-645. Read More