The Legal Environment and Business Decisions - Assignment Example

THE LEGAL ENVIRONMENT AND BUSINESS DECISIONS Assessment:Business Topic: The legal environment and business decisions Name ID Date The legal environment and business decisions Question One Negligence According to business law Negligence is when a person or a business entity fails to use reasonable care which leads to harm or injury to another party which is usually a customer. The main aim is to achieve compensation for injuries or accident. It is a form of legal obligation between two or more parties whether a contract exists between the two or not. It may be ordinary negligence or Gross negligence. Ordinary negligence is when an entity shows slight responsibility while gross is when an entity is completely ignorant and does not show any diligence at all. It may be unintentional, reckless or wanton.It is in two aspects, either one does something which someone reasonable wouldn’t do or one fails to take reasonable action which would prevent injury or harm.1 In this case, the guards did something unreasonable. They pushed a passenger on to a moving train. Again, they did take reasonable action again this man who was clearly travelling with a parcel containing fireworks. Negligence has a couple of elements that need to be considered before one concludes that Palsgraf has remedy for negligence. The first one is duty, the operators of the railways have the duty of ensuring that the area of business is very secure for its customers and in this case the customer is Palsgraf because she was waiting for a train to pull in. It was the duty of the two railway guards to take prudent and reasonable steps to protect Palsgraf as the customer or user of the railway station. The railway guards were required to exercise care to protect her from any potential injury that they could have foreseen to be probably present in the railways. First of all, the guards either did not check the man’s parcel or maybe they did and ignored what was in. Either way, they put not only palsgraf in danger but other passengers in as well. It is not right for anyone to be travelling with fireworks. In addition, the train which the man carrying the parcel was supposed to travel in was in motion; the guards had no right to push the man on to the train. Why? Obviously one, was that is caused him to drop the parcel thus the fireworks exploded on Palsgraf and two, because it is not safe at all to push anyone on to a moving train. This is ignorance on the guard’s part. It is important to note that the legal duty of care does not make the railway a guarantor to Palsgraf’s safety. However, because this kind of injury was foreseeable then the railway is reasonably liable. Another element is harm. 2 She was physically harmed when the fireworks exploded so the railway s is legally required to compensate her considering the harm occurred due to breach of duty. She will be compensated in terms of money damages covering what she lost due to the harm inflicted on her due to the railway’s negligence. However, these damages are based purely on physical harm not what the victim might have lost economically. This basically means if she lost her job or maybe a contract due to the explosion, she will not be compensated for this because the law of negligence does not cover “pure economic loss” In this case Palsgraf will be compensated for the physical harm. The bottom line is Palsgraf is entitled to a remedy for negligence against the railway because the railway negligently injured her. She will be compensated because the railway guards owed her a duty. To protect her and the general public from anything that might cause physical harm to them. The railway guards violated he duty to protect her by allowing a man with fireworks in to the railway station and consequently pushing him on to a moving train. Nevertheless, the violation of duty resulted in harm to palsgraf as the fireworks exploded and injured her. Finally, her injury was foreseeable by the guards in the sense that they allowed fireworks. It was inevitable someone was going to get hurt. Question two: Trespassing. Trespassing to someone’s land is if one deliberately or carelessly does something or an activity that interferes with another’s land. Land in this case is everything below or above the ground. However, it is a civil offence and a trespasser can be sued even if the trespassing does not result in any damage to the land. In this case, while Joe is trying to promote and market his business he erects a sign which protrudes over Pat’s land. Pat can be justified to claim trespassing if and only if he can prove the following. First, he will have to prove that the sign is causing unjustifiable and direct interference on his land. Pat may argue that this sign hinders his visitors or other people from locating his land. However, this issue might be difficult to prove because Joe put up this sign at the far corner of the land and people might be seeing the land clearly. Secondly, Pat will have to prove that he exclusively possesses the land. This means having a title deed will give Pat an upper hand over Joe in court because it is evidence that the land is his. In contrast, Joe may own the shop due to acquiring a license and this is not exclusive ownership under the law of trespassing, The bottom line is Pat will bring the claim if he exclusively owns the land. Another important thing is that Pat should not be a landlord. This simply means that if Pat has let out the land to a tenant or tenants he cannot bring the claim. At this point, the tenant or tenants are the ones allowed to claim in the civil courts. So, unless he is personally using the land or living there his claim against Joe is not valid. Trespassing is under section 9 of the SOA.3 Joe is guilty to some extent because he put up the sign on a private place. Pat is supposed to ask him to take it down and sue for trespassing if Joe refuses to take it down, Pat is allowed to remove the sign on his land because Joe did not ask for permission before putting it up, however he must not use unreasonable force in the process otherwise it might result in other charges, like assault. It is important for Pat to realize that Joe can defend himself on very reasonable grounds. How? Joe may argue that the sign is at the far corner and its not causing any interference to Pat’s land. Meanwhile the sign is helping him get rid of a nuisance. The nuisance is people not being able to notice his shop hence risking his business. In any case, the sign is protruding over the land and is not directly over Pat’s land. Yes, Pat may be justified to remedy due to trespass to land but Joe has a strong defense here. If Pat wins, the court will order an injunction against Joe, that is to stop trespassing now and never do it again. Joe may also be asked to compensate Pat for trespassing. Both parties should settle this without involving the courts. They can come to a reasonable agreement without consuming time in the civil courts. Question 3: Has the civil liability legislation changed the law where public authorities are concerned? Civil liability is the potential duty for payment of damages or compensation as enforced by the court of law. I agree with the above question. It is true that civil liability legislation changed the law where public authorities are concerned. The change has been extremely profound as citizens are now expected to take care of themselves and bear responsibility of their actions. The civil liability act basically focuses on damages while the amending act is based on liability. However, the courts now pay more attention regarding personal responsibility as required by the civil liability act and the civil liability amendment. This act is especially significant because of the fact that it covers damages due to personal injury even if the damages are recovered on breach of statutory duty or breach of contract. Claims based on economic and non economic loss win in the courts if and only if a person suffers serious mental disorder or fifteen percent or more of his or her body is impaired. The civil liability act is changing or rather changed in order to improve the notion of personal responsibility, however they make it difficult for a plaintiff to win in court because as I mentioned earlier, the responsibility is shifting and becoming more on people themselves rather than the public authorities. For instance, public authorities have limited their liability in recreational areas by putting up disclaimer of liability or risk of warning. This sheds off their liability because the disclaimer or the general warning is deemed to be sufficient. So anyone engaging in activities in these recreational areas is required to be careful because their safety is up o them and not the public authorities. Another important aspect is contributory negligence.4this is now considered as a form of strong of defense for public authorities. This is when someone intentionally and voluntary assume risk so any claim of negligence on the part of public authorities in case injuries arise is invalid because the risk was assumed. Public authorities no longer owe duty of care for failure of not warning future risks unless they were asked. This means that if any harm occurs, the public authorities will not be liable. Professional person’s duty of care was modified as well. It is an effective defense if a professional person acts in a manner which is generally accepted by the people of a certain country because the professional person will be deemed as competent. It is however good to note that professionals are expected as members of public authority to advise their clients of any existing material risks involved, but then again compensation has been reduced greatly and surprisingly the courts can discount compensation up to a hundred percent should there be any evidence of contributory negligence. The amended act limits the type of people who can claim damages based on psychiatric injury suffered by witnesses at a scene where someone was harmed. Rules and limitations are set out covering every detail from mental harm, intoxication, proportional liability, self defense, food donors, good Samaritans, volunteers and damages for child birth among others. Initially, the courts were giving extremely excessive damages and were finding mistakes and errors even where none really existed. The purpose of the civil liability legislation changing where public authorities are concerned is to avoid awarding damages in matters relating to personal injury while abolishing others which are punitive or exemplary damages. Persons diving off a ledge at low water marks are not protected by the amended act because they are supposed to be aware of the obvious existing risk.5 This means that any statutory authority involved does not need to warn persons of obvious risks. Persons are now required to pay extra care as regards their safety without depending on public authorities. An example of a case which highlights that public authorities no longer have a responsibility or duty in these circumstances is the case of Vairy and Mulligan where it was discovered that the plaintiff had taken a risk while assuming the dangers which were obviously present. The relevant public authority was not liable in informing or warning the plaintiff of these risks. This principle has also been applied in many cases thus relieving public authorities of several liabilities. Courts currently are reluctant to shift liability or blame to public authorities as they see no reason to do so if individuals make these choices on their own. This change and amendments regarding public authorities have been especially significant because persons are less careless now that they know that the responsibility has been shifted from the former to them. REFERENCE H. GERALD CHAPIN, HANDBOOK ON THE LAW OF TORTS § 105, at 501 (1917) ((1) duty, (2) breach, and (3) resulting injury); HALE, supra note 4, § 227, at 449 (1896). Read More