Law in Business Environment - Assignment Example

Name : xxxxxxxxxxx Institution : xxxxxxxxxxx Course : xxxxxxxxxx Title : Assignment 1 Tutor : xxxxxxxxxxx @2010 Assignment 1 Introduction In the tort of negligence three things should be proved for an action to be successful, the first one is that the defendant should own a duty of care to the plaintiff, the second is that the defendant breaks the duty of care within the standard of care as required by law and lastly this violation of duty of care lead to damage to the plaintiff (Ulrich 2006). The damage is supposed to be acknowledged by the law. In the case of Donoghue v Stevenson2 it was held that one should take considerable care to evade acts or errors which one can considerably foresee has a likelihood of injuring the neighbor (John 2007). Duty of care The case of Donoghue v. Stevenson[2] [1932] demonstrates the law of negligence, laying the basis of the liability rule around the commonwealth. The Pursuer, Donoghue, drank ginger beer provided to her by a friend, who purchased it from a shop. Stevenson Company supplied the beer. When Ms. Donoghue was drinking the beer, she discovered the remains of a purportedly decayed slug. She filed a suit with Stevenson, even if there was not any relationship of contract since the friend made the payment. Since there was no contract the principle of privity barred a direct action against the manufacturer, Andrew Smith (Stuhmcke 2005). In his judgment, Lord MacMillan identified a new classification of negligence tort since it was analogous to former cases regarding individuals hurting each other. Lord Atkin construed the biblical statements to “love thy neighbor,” as the lawful requirement to ‘not harm thy neighbor.’ He after that defined a neighbor as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question." As a result, reasonably foreseeable damage should be compensated. This is the first principle of negligence (John 2007). Analysis In this scenario, there was reasonably foreseeable damage since Alan was unfamiliar with the scooter and this is what resulted into the ensuing accident. As a result, all the victims, Brian, Mrs. Todd as well as her husband are entitled to compensation. Alan ignored the fact that he was unfamiliar with the scooter and hence the act of negligence. Factual causation For the defendant to be perceived liable, it should be demonstrated that specific acts or omissions caused the loss or resulted in the damage sustained. Even if the notion appears simple, the causation between someone’s violation of duty and the ensuing harm to another person may at times be very complex (Willy 2000). The fundamental test if to enquire if the injury would have taken place before, or without, the accused party’s violation of the duty owned to the injured party. Even more specifically, if a breaching party considerably increases the risk of damage to another, then the violating party can be sued to the value of the damage he or she caused (Steele 2007). Analysis In this scenario there was factual causation and hence Alan can be sued to the value of the harm he caused. This is because the damages would not have taken place without Alan’s interference when he went to assist Mrs. Todd. Alan went to assist her even though he was unfamiliar with the scooter and in trying to assist he inadvertently hung a heavy bag of vegetable on to the accelerator control on the handlebars. This action (Alan’s action) is what resulted into ensuing damage whereby tobacco stall got demolished leading to the stall assistant Brian, fracturing his wrist and this came with several losses to him. Mrs. Todd fractured her pelvis as well as head blow and she was not likely to be in a position to go on living autonomously. Her husband after witnessing this incident developed a blood clot on the brain and died as a result. In this case, the breaching party, Alan considerably increased the risk of damage to all the parties involved since without his violation of duty, the resulting harm would not have taken place. Therefore, Alan can be sued to the value of the damage he caused. Harm Even if there is violation of duty and the cause of injury to the defendant, the plaintiff might not recover unless he can prove that the defendant’s violation of duty led to pecuniary injury. As a common rule, a plaintiff is only dependant on a legal remedy to the point he or she provides a proof that he or she suffered a loss (Roger 2008). This means that something more than pecuniary loss is an essential aspect of the plaintiff’s case of negligence. Negligence is unique in that the plaintiff should prove his or her loss, and a specific type of loss, to recover. In case the plaintiff can prove pecuniary loss, the he can also acquire damages for non-pecuniary injuries, for example shock (Paula 2007). The prerequisite of pecuniary loss can be illustrated in several ways. A plaintiff who is physically injured by purportedly neglectful conduct can show that he or she paid the medical bills. The damage can be physical, solely financial, both physical and economic (loss of revenue after a personal injury). Emotional distress has been acknowledged as an actionable tort. In general, emotional injuries have to be parasitic. This means that the plaintiff can recover for emotional distress caused by the injury, but only when the emotional distress is accompanied a physical or pecuniary injury (Paula 2007). Analysis In this scenario, harm was incurred and therefore all the plaintiffs are likely to recover from the losses. At first instance, Brian suffered both physical injury and pecuniary injury. For the physical injury, he fractured his hand and this led to him undergoing operation whereby he obviously incurred medical bill. Moreover, he missed work for about three months and still missed a pre-booked holiday whereby he lost £200 of which he was not in a position to claim. Here, Brian can recover from the physical injury because he underwent pecuniary injury because of the hospital bill as well as from the operation he underwent. Still, he can recover from economic injury because he lost financially after Alan’s neglectful conduct. Therefore, Brian can recover from both physical and economic damages since he suffered revenue loss after the personal injury. Mrs. Todd is also likely to recover as a result of the harm she encountered from the negligence conduct of Alan. She fractured her pelvis because of the fall and this means she obviously incurred medical bills. Moreover, Mrs. Todd suffered a head blow which rendered her dependant. As a result, Mrs. Todd is also entitled for the claim of recovery of all the costs that will be involved in her dependent life. Still, her husband suffered from emotional distress because of the incidence and consequently developed brain clot and died. This is an actionable tort. Consequently, Mrs. Todd can also recover the loss of her husband since the husband’s emotional distress was accompanied by a physical injury whereby he developed blood clot and eventually died. Damages Damages have a monetary value on the damage incurred, following the principle of restitutio in integrum which means reinstallation to the original state. Therefore, for most purposes associated with quantifying the damages, the level of culpability in the violation of the duty of care is not relevant. Once the violation of the duty is established, the only obligation is compensating the victim (Lowe 2005). One of the key tests posed when deliberating if the claimant is entitled to get compensation for a tort, is the “reasonable person”. The test is; would a reasonable person (as established by the jury or the judge) be harmed by the violation of duty. This test requires the judgment of the judge or the jury that can be based on restricted facts. “Reasonable person” test is used in establishing if or not a plaintiff is entitled to a recompense for a negligence tort (Underhill 2009). Damages are normally compensatory. Compensatory damages deal with plaintiff/claimant’s losses (in cases engaging physical or mental injury the total sum recompensed also compensates for both the pain and suffering. The award is supposed to make the plaintiff whole, adequate to put the plaintiff back within the position she or he was before negligent act of the defendant. Anything more would illegally allow a plaintiff to benefit from the tort (Lowe 2005). Types of damage Special damage This refers to quantifiable financial losses the plaintiff suffers from the date the defendant carried out the negligent act (the tort) up to a specific time (proven at trial). Examples of special damage consist of: lost earnings, medical bills as well as harm to property such as the car (John 2004). General damages General damages refer to the damages that cannot be quantified in financial terms, for example there is absence of receipt or invoice to prove the special damages. An example of general damage is the total sum for the pain and suffering a person goes through in case of an accident. Finally, where the plaintiff proves merely negligible loss or harm, or the court or judge is not able to quantify the losses, the court or judge can grant nominal damages (John 2004). Punitive damages Punitive damages are meant for punishing the defendant and not for compensating the plaintiff in negligence incidents. Consequently, punitive damages cannot be obtained in a negligence case. Punitive damages are only awarded just in cases where the defendant has been proved “guilty” of deliberate, irresponsible or malicious wrongdoing, for instance fraud, defamation or false detention (Christine 2004). Analysis Alan breached his duty and the parties involved were harmed by the negligence and hence all those who were harmed in the process are entitled to compensation. To start with, Brian should be compensated of the medical bills, pain, and the revenue losses he experienced as a result of the act of negligence by Alan. First, Brian is entitled to special damages compensation for the medical bills he encountered because of the hand fracture and the operation as well as compensation for the financial loss he encountered as a result of the negligence. Furthermore, Brian is also entitled to compensation for general damages since he underwent a lot of suffering and pain as a result of the injury he sustained. Mrs. Todd is also entitled to special damages compensation because of the medical expenses she encountered because of the treatment of the injuries arising from the act of negligence. She suffered a fractured pelvis, and hit her head and hence rendered dependent throughout her live. The special damages compensation she receives is supposed to restore her back to her condition before the negligence act. Therefore, Mrs. Todd is supposed to be compensated for all the medical bills as well as for all expenses that she is likely to use while being a dependant. For the general damages, Mrs. Todd should be compensated for the pain and suffering she went through as a result of the injuries and also for the loss of her husband who suffered emotional distress and eventually died because of the act of negligence. On the other hand, Alan should be charged for punitive damages. This is because Alan as the defendant did not commit the negligence act deliberately nor did he have evil intentions. Legal causation or remoteness The main idea of legal causation is that if nobody can foresee something bad happening, and consequently take care to evade it, then no one is responsible. In Australia, the remoteness concept was examined using the case of Jaensch v. Coffey (Samuel 2007). Mrs. Coffey who was a policeman’s wife suffered a nervous shock injury from the after effects of a motor vehicle accident even if she was not in reality at the accident scene when the accident occurred. The court ruled besides to being reasonable foreseeable that his wife may suffer such an injury, it also entailed that there be adequate closeness between the plaintiff and the defendant who caused the catastrophe. In this accident, there was adequate casual proximity (Deakin 2003). Similarly, in this scenario, for all victims who were harmed there was sufficient casual proximity. This is because there was adequate proximity between the victims and Alan who caused the accident. Bibliography Christine, P., 2004, Professional Practice for Interior Designers, Wiley-Interscience, Toronto. Deakin, S., 2003, Markesinis and Deakin's Tort Law, Oxford University Press, London. John, H., 2007, Tort Law Textbook, Oxford University Press, London. Lowe, M., 2005, Ethics and Law for the Health Professions, Federation Press, Sydney. Paula, C., 2007, Compensating child abuse in England and Wales, Cambridge University Press, Cambridge. Steele, J., 2007, Tort Law: Text, Cases, & Materials, Oxford University Press, London. John, M., 2004, Cases and Commentary on Tort, Longman, New York. Stuhmcke, A., 2005, Essential tort law, Routledge, Los Angeles. Roger, M., 2008, Fundamentals of Business Law: Summarized Cases, Cengage Learning, New Jersey. Samuel, J., 2007, Tort Law Textbook, Oxford University Press, Illinois. Underhill, S., 2009, A Summary of the Law of Torts; Or, Wrongs Independent of Contract, General Books LLC, Chicago. Ulrich, M., 2006, Unification of tort law: contributory negligence, Kluwer Law International, California. Willy, J., 2000, The tort of negligence: its importance and relevance in the administration of Victorian high schools, Monash University, Toronto. Read More