Legal Environment and Business Decisions - Essay Example

? The Legal Environment and Business Decisions Number Question Alternatives to Tort Law Tort Law mainly focuses on remedying personal injury and property loss (Best, & Barnes, 2007). The aim is to secure full damages wherever conceivable, and on this note tort compensation deviates from moneys released by welfare state system (Sugarman, 1985). This is because unlike the latter, the former tend to be inclusive of extra profits for business losses or additional compensation. Compensation for personal injury under tort encompasses reflection on past and projected economic injuries in future as well as preferred monetary compensation for several nonfinancial assets, such as psychological damages following loss of important personal assets. It is the costly nature, and the complexity of determining the cost of psychologically-related damages that has inspired the development of alternative ways of compensation. Modern Trends Modern tort law was repeatedly faulted, especially between 1970s throughout 1990s mainly in England and the United States as a slow and complex, and unreasonably expensive, process that is beneficial mainly to the legal representatives concerned (Sugarman, 1985). Whereas, the reservations were merited, the proposed options of direct compensation for injuries failed to win universal approval. In light of this, tort law, as a system of processes and regulations governing part of the implementation of remedies, moved into the current world in its original state. Its existence as a detailed structure of law cannot be linked exclusively to the lack of a strong alternative; rather its continued existence is also exhibited in the level at which the regulations, once projected for use in a fairly nascent society, have translated into a more convenient legal system for a more complicated society. Differences in legal systems According to Best and Barnes (2007) different rules of compensation do not have precise alternatives in all legal systems, but similar issues tend to be considered when determining the eventual amount of damages. In a number of Western systems, such as France, the final figure of damages is considered as an issue of fact and the judges are obligated to offer a determination on it. In UK Law, since the closure of civil courts handling personal injury suits the country has achieved a significant standardization for particular headings of compensation. Common Law Sugarman (1985) indicated that under English Common law jurisdictions order lump sum compensation, whereas in Civil law litigations periodic compensations are preferred. In many cases the difference seems to be theoretical as opposed to practical measures (Sugarman, 1985). In light of this, even in cases where the damages are in order to be settled in instalments, courts prefer to order the expending of the damages at once, partly because the beneficiary-victims tend to favour this approach and partly in order to avoid any complications arising in the future. A third reason in support of lump sum damages in Civil Law settlements is that advocates can more easily determine their dues arising from legal representation services than from fairly small instalments, irrespective of its frequency. Best and Barnes (2007) indicated that in case of the death of the victim, all legal systems prefer his estate to lay claim for he or she could have during his lifetime. The circumstances for determining this case differ, however, English law provides for the determination of the compensation. The law also provides the deceased’s kin to seek legal redress. In the legal systems dealing with common law, this is clearly established by the wrongful death statutes. Common law systems also seem to vary over the issue of who ought to be permitted to litigate under this heading. Edwards, Edwards and Wells (2011) indicated that Common law structures specifically elect the list of the eligible persons, maintaining that their actions are favoured by the victim upon his or her death or when there is a reasonable cause to lay claim for dependency (Okrent, 2009). Unlike the English legal tradition, German law restricts claims to individuals having who are entitled to upkeep, and these individuals fall within the family category of the Civil Code. Okrent (2009) noted that the French law seems to be free to interpretation, requiring only the transfer of the benefits to the legal beneficiaries at upon the death of the victim. This varies with other legal jurisdictions in the sense that in the other two key systems, the claim is more obvious than practical, however, the legal systems usually exclude claims by persons other than relatives through different causative devices. Social welfare systems Apart from Common Law applications, social welfare mechanisms are another alternative for tort law. The social welfare systems operate via a system of complex rules, usually with an entirely different dimension to the former system (Edwards, Edwards, & Wells, 2011). Under such systems, the full understanding of remedy for losses is premised upon the examination of parallel but restricted schemes, for example, for injuries suffered by victims at the workplace, for road accident injuries, or for criminal victims, which in a number of systems are applied alongside tort law, but in other jurisdictions tend to substitute it (Sugarman, 1985). In response to the lack of need to seek justice under tort, there has been a suggestion that countries should adopt a compensatory system that is funded by the government taxes, employer and employee contributions, and a charge on automobile use to cater for various categories of injuries (Lunney, & Oliphant, 2008; Sugarman, 1985). Such a system has already been adopted by New Zealand to cut heavy costs of litigation upon the parties concerned under tort. Nonetheless, it is important to also weigh the cost of successfully settling an injury claim in tort against the implications related with the implementation of automatic damages to victims. Sugarman (1985) suggested that critics decry the costly nature and complexity in implementing alternative claims outside the parameters of tort law. Some of the difficulties which parties are likely to be encountered is the contentious issue of whether or not automatic compensation ought to be invoked in the settlement of injuries arising from accidents only or it should extended to cover sickness prayers. Additionally, it is still unclear whether compensation should be determined on the basis of the circumstances of the victim prior to the injury caused by accident or flat rates should be established to govern such claims (Lunney, & Oliphant, 2008). And in the event of an injury, contention exists as to whether claims should be targeted at providing damages to the victim for economic harm with, maybe, token amounts of money preferred for non-pecuniary injury or a non-pecuniary loss should be given priority as it is the case under tort law. The uncertainties sparked by the alternative measures to Tort Law complicates the applicability of the new measures as a substitute to Tort Law, a development that many Western countries and Commonwealth states are reluctant to adopt on purely practical grounds. Conclusion Tort law has been cited as costly, and complex with the damages mainly benefitting the attorneys involved, hence the need to adopt alternatives. However, contrary to calls aimed at settling for alternative ways to tort law, the future seems to be headed the tort way. This is especially true considering the fact that various families of law converge with it to provide a stronger, binding, and more acceptable legal tradition across the world. This culture is expected to inject a new impetus to the custodians of tort law. The system continues to have a more global image in the current world. It is therefore plausible to argue that variations in the tort law application will depend on differences in process and the prevailing economic conditions in each society rather than by any basic variations in the legal regulations enforced. Question #2 Negligence Negligence is a behaviour which does not meet the thresholds of standards of a normal one as set up by law for safeguarding others against arbitrary risk of injury (Kozlowski, 2013). In light of this definition, Michael is to blame for the negligent conduct that resulted in Anne’s injury. This is because his actions depart from the behaviour expected of a rational individual acting under same conditions (Benson, 2012). It is factual that Michael chose to drive under the influence of alcohol, which is contrary to the traffic rules and other regulations governing human conduct, and knowingly offered Anne a lift in such condition. As Jain (2010) indicated, in order ascertain Michael’s negligence as the reason for litigating against him under Tort law, Anne must provide proof that the Michael had a duty to ferry her to her destination. She should also prove that the defendant violated that responsibility by failing to act according to the required standard of conduct, and that Michael’s negligent behaviour was to blame for her injury. If Anne’s submission met these legal thresholds, the court would be more than convinced to order the defendant to settle the damages arising from the negligent act. By contrast, Benson (2012) stated that even though the idea of negligence was created by the English legal tradition to settle claims arising from avoidable injury to a plaintiff’s person, it does not apply in all situations. In this case, for instance, Anne should carry the burden of proof in order to enable the court to rule in her favour, a responsibility that could prove hard to shoulder (Jain, 2010). This is especially true if the defendant chose to invoke the doctrine of assumption of risk as his basis of his defence. Assumption of risk The doctrine of assumption of the risk implies that facts provided by the plaintiff against a defendant may not hold any water in the trial process if the plaintiff was aware of a risky condition and willingly exposed themselves to it (Kozlowski, 2013). In this case, Anne knowingly exposed herself to the dangers of an ‘impending’ accident by choosing to travel in a car whose driver was very drunk and behaved like one. Anne admits that Michael was reeking of alcohol and struggled to be steady on the wheels. These are clear pieces of evidence that Anne had voluntarily chosen to expose herself to the likely risks of the ride. On this point, she is likely to be at pains to react to a possible argument that rainfall was not enough reason to expose herself to the risks in the hand of Michael (Benson, 2012). According to Kozlowski (2013), under civil law, assumption of the risk is a doctrine that can be cited by the defendant to exonerate himself or herself from liability. In this case, Michael would only need to prove that Anne knowingly endangered her life by choosing to ride in his car. A likely submission that Anne smelled the alcohol scent had witnessed as the vehicle was moving unsteadily on the road is enough to shift the burden of risk assumption to the plaintiff. In this case, the doctrine of assumption of the risk applies in two ways; firstly, Anne voluntarily entered into the drunken Michael’s car and with the strong alcoholic smell, she knew that Michael would not protect her against the risks and a probable injury. This way, Anne would then be perceived as having implicitly given in to Michael’s negligence. Secondly, she realised that Michael was incapable of keeping the vehicle on the road, but did not stop him to alight or take charge of the car from him in order to save her life from the risks posed by the negligent driver. This way, Anne was aware of a risk the moment she entered into the car, but proceeded voluntarily with the journey (Kozlowski, 2013). And owing to the voluntary nature of the Michael’s service, Anne is believed to have given in to the situation and accepted to have the defendant freed of all the duties. Anne might have acted reasonably by choosing not to be rained on by using a safer alternative means of transport to her destination. By contrast, Anne’s might choose to defend her decision in support of the ride by arguing that under the prevailing circumstances, her decision was accurate; that while on board she acted with rare caution as an individual who was aware of the risks. That she boarded the car anyway, with the aim of avoiding any resulting injury by scolding the driver whenever he was driving recklessly (Bergling, Wennerstrom, & Sannerholm, 2012). Conversely, Anne has a very slim chance of voiding the defendant’s rebuttal of the negligence claim. In light of this, Michael might deny owing a duty of care to Anne, a factor that would be imperative to the invocation and ordering of the appropriate liabilities (Benson, 2012). Additionally, Michael might cite his own injury as well, in the court as a valid ground to support an argument that his conduct was not tailored to harm Anne, because he too suffered in the accident. Contributory negligence As Kozlowski (2013) indicated, it was unreasonable of Anne’s to expose herself to a known risk of drunken driving, because the risk does not commensurate with the benefits that Anne would have acquired, had she chosen to settle for other alternatives. Therefore, Anne’s conduct amounts to contributory negligence (Benson, 2012). In light this, her decision meets the threshold of a lack of ordinary care to take safer means of transport, and as a result, Michael's negligence does not constitute the direct cause of the injury. It is notable though, that Michael’s argument along this line would reinforce Anne’s assumption of risk or her status of contributory negligence. In areas where the two doctrines overlap, such as in this case, the defendant may employ any of the two rules or both (Bergling, Wennerstrom, & Sannerholm, 2012). Like in most cases, the defendant in this case may cite the concept of assumption of risk, because it basically consists of a plaintiff’s full knowledge of the dangers and the reasonable acceptance of it (Benson, 2012). By contrast, contributory negligence lacks adequate weight in spirit, considering the fact that Anne’s conduct may have not met the reasonable threshold of standard of conduct (Kozlowski, 2013); for instance, if it turns out that the two were in a relationship, or something of the kind, Anne may argue that her attachments between the two outweighed her sense of reasonableness in accepting to enter the car and stay put in it. Conclusion In light of these arguments, Anne can only win a petition against Michael if she proved that the defendant owed him a duty of care, and as such his negligent conduct led to her injury. She also needs to prove that her choice to expose herself to the risks of riding in the intoxicated man’s car overweighed the risks of being rained on or worse still the lack of an alternative means of transport to her destination. Otherwise, the defendant can prove that she ought to assume the risk of boarding the car driven by the drunk in the face of imminent risks such as strong alcohol scent and unsteady driving. In light of this, Michael may argue that she is to blame for her injury under the doctrine of contributory negligence. Question #3 The customer has a remedy in tort, provided she can shoulder the burden of proof to support the causation of the tort (Thomas, 2012). Causation is a factor featuring in the three families of torts: strict liability, intentional wrongs and negligence. The plaintiff should prove that negligence on the part of the waiter was the reason behind her burns. An English court would analyse this issue by establishing whether the plaintiff-customer’s burns would have happened irrespective of the defendant's conduct (Sterk, 2012). If the burns would have happened either way the defendant acted, the court would establish that the conditions do not meet the thresholds of cause in fact, and no offense was been committed by the waiter (Crawford, & Axelrad, 2012). In this case, multiple factors could have led to the tort and the eventual injury: the waiter’s supposed occupation of the eatery’s passage way when the accident occurred; the waiter loosely held the container with the hot tea; the bump of another customer led to the accident; and the “dropping” of the hot foods upon the plaintiff and herself following the bump. In light of this, the plaintiff has to prove that the waiter’s conduct played a key role in causing the burns. Secondly, the customer must show proof that a particular offense by the waiter was the direct cause of the injury before the court can affect a liability (Kozlowski, 2013). Although, “proximate cause” is usually open to different interpretation, proximity is likely to be applied in this case because the customer’s claim and the level of liability for the injuries meets the minimum thresholds of a “reasonable relationship” to the dangers mentioned by the waiter (Sterk, 2012). Hylton (2008) noted that proximate cause is measured precisely on foreseeability. In light of this, the foreseeability of the defendant would apply if the plaintiff proved that the defendant-waiter had predicted the injurious offense, for instance, by blocking the path used by other customer or having spotted the oncoming customer but did nothing to evade her (Higgins, 2011). In both cases, the waiter could have reasonably anticipated the risks and the eventual injury under the proximate cause doctrine. Strict Liability As Hylton (2008) stated, in the event the court establishes that the waiter was neither negligent nor culpable of deliberate tort in her service, the customer may cite the doctrine of strict liability in order to secure the damages. Strict liability in tort seeks to govern activities that are important and basic but which result in abnormally hazardous risks to members of the society (Sterk, 2012). In this case, such an activity is the carrying of hot tea in an unsafe way to serve customers in seemingly busy Tandoori Inn. Therefore, it is arguable that the waiter had breached the duty of care owed to the customer in her failure to offer quality service. In light of this, Thomas (2012) noted the distinction between the moral fault and legal fault in tort. According to Hylton (2008), individuals who, due to their negligence or deliberate omission or commission cause harm to others are usually believed to be morally blameworthy for their actions that did not meet the benchmarks for standard human conduct. In light of this argument, the customer can seize the opportunity to advance the idea that the waiter is morally blameworthy for “dropping” the cup of hot tea upon the two of them (Sterk, 2012). A waiter who acts in a standard way would not drop the tea; rather he or she would struggle to avoid pouring hot tea on their customer, or limit the level of injury by holding the container firmly. It was unreasonable for the waiter to drop the hot tea, because under the prevailing circumstances she could have limited the level of injury upon the customer and herself. Conclusion The establishment of duty of care to the customer, breach, and proximate cause in a tort law suit, would enable the customer-plaintiff to recover compensation for the financial losses sustained following the accident. In this case, the damages would be measured by the damages for harm to the person. The personal injury offense victim would be entitled to all her damages arising from the past, present and future harm in a single court case. She would recover damages arising from physical, emotional, and psychological harm. Depending on the seriousness of the scalds, adequate compensation would be preferred with respect to whether or not the injuries caused her permanent impairment, pain and suffering, scar, humiliation, shame, distress, injury to her economic viability, lost wages, health care expenses, and other expenses. References Benson, P. (2012). Economic Loss and the Prerequisites of Negligence. Franklin Business & Law Journal, 1, 116-161. . 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