Introduction to Law: Contract and Tort Law - Assignment Example

Introduction to business law PART A Dabir is a lecturer at Uxbridge The s car park costs 100.0 a year and isavailable to staff who live more than 10 miles from the university. The parking spots are limited and more than 50 percent of the staff who qualify for parking cannot be accommodated. The parking spots are, therefore, available on a first come first serve basis. Dabir travels to work by car but usually parks on the side street due to the limited parking spots. However, at the start of the induction week Dabir was early and was able to secure a parking space. Unfortunately his car was stolen while parked at the university‘s parking lot. When he reported the incident to the parking attendant, the attendant admitted that he thought the person driving the car was a stranger. Nevertheless he allowed him to pass because he thought the stranger was a new member of staff.  When Dabir reported the issue to the security office, he was dismissed and referred to a notice on the entrance of the parking area. The security officer also informed him that he did not qualify for parking since he lived 9.95 miles from the university. The issue here is whether the university security as well as the attendant owed Dabir a duty of care, and if so, whether Dabir would be able to recover for the loss of his car. Duty of care is an obligation which is imposed on another individual. The duty requires the other party to observe a level of reasonable care so that his acts are not harmful to others. In order to establish negligence, it is important to show that a duty of care existed and this duty was breached by the other party. In establishing a duty of care a three prong is applied as formulated in Caparo Industries Plc v Dickman.1 In this case, the House of Lords observed that in order to establish a duty of care, the harm that is caused must be a foreseeable result of the defendant’s actions. There also must exist some proximity between the parties and that it must be fair to impose liability.2 Occupier’s liability is the duty owed by a land owner or his agents to individuals who come to his land or premises. The relationship between the occupier and the visitor gives rise to a duty of care to ensure safety and security for the visitor.3 The occupier’s liability Act of 1957 provides that an occupier owes lawful visitors a duty of care. The definition of a lawful visitor, according to the Act, includes licensees, invitees, those exercising a right conferred by law and those who enter the premises based on contract. Section 12 of the Act defines invitees as those individuals who have been invited into the premises. Licensees, on the other hand, are defined as those individuals who either have express or implied permission to be on the premises or land. The duty owed by the land owner to lawful visitors is the common standard of care. An occupier can discharge his duty of care by providing a warning to the visitors. Section 2 (4)(c) of the occupiers liability Act provides that in order for a notice to discharge the occupier from liability, it should be sufficient to enable the visitor to be safe. In Dabir’s case, it is essential to determine if Dabir was a lawful visitor according to the Occupiers Liability Act, and if so, whether the notice at the entrance of the parking absolved the liability of the university. The parking at the university was reserved for those who lived more than 10 miles from the university. These individuals qualified as licensees under the Occupiers Liability Act since they had express permission to use the university parking. The notice at the entrance also provided that the university would not be liable for the theft of cars parked at the parking lot. Dabir lived 9.95 miles from the university and, therefore, did not qualify as a licensee. The notice at the entrance of the parking also absolved any liability that could arise out of theft of a car parked there. The university did not owe Dabir a duty of care and as such he cannot recover from the university. PART B Edwina, a BSc student at Uxbridge University, bought her textbooks at the campus bookstore. The bookstore was offering a 10 percent discount on books bought during the induction week. Edwina wanted to purchase her books early and she took advantage of the discount offered by the store. Since there was no recommended reading for the Introduction to law module, Edwina could either purchase Business law by Anne Roberts or another text by James Roll. Edwina asked the assistant to sell her the more up to date of the two books. The attendant recommended the book by Anne Roberts. However, Edwina later discovered that the book by Anne Roberts was published earlier than the James Roll book. Edwina was preoccupied by this discovery and as a result she was the last student to leave the lecture theatre. As she was leaving Filippo who is the lecturer inadvertently switched off the lights. This caused Edwina to loose balance and falls down the remaining steps and broke her arm in two places. The issue in this situation is whether Edwina is entitled to the James Roll book from the bookstore. In addition, whether Edwina can get compensation for her broken arm. Misrepresentation is an untrue statement made by one party to another, which makes the party relying on that statement to suffer a loss. Misrepresentation can take three forms and these are negligent, innocent or fraudulent misrepresentation. Fraudulent misrepresentation is where the misrepresentation is made is made knowingly or recklessly. A negligent misrepresentation is where the statement is made in breach of a duty owed to the representee or made carelessly without reasonable grounds to verify the truth. An innocent misrepresentation, on the other hand, is where the misrepresentation is neither fraudulent nor negligent. Misrepresentation has the effect of making a contract voidable. A voidable contract means that the representee can elect to set aside the contract due to the misrepresentation. In order to recover due to misrepresentation, it is essential to establish that a representation was made and it turned out to be false. In addition, it is important to establish that the representation was made falsely or without knowledge of its truth and it was intended to be relied on by the other party. Other factors that must be established is that the other party did rely on the representation and as a result that party suffered a loss.4 Causation in tort law is the test of causation, remoteness and foreseeability of an act that resulted in a tort being alleged. Causation establishes a direct link between the acts of the defendant and the harm suffered by the claimant. Causation can take two forms either actual causation or proximate causation. Actual causation establishes whether the defendant caused the harm to occur. The test to test actual causation can use ‘but for‘test. In this test the claimant should prove that if it were not for the actions of the defendant the harm would not have occurred. The other test is the substantial factor test where a factor that caused the harm is held liable. Proximate cause, on the other hand, uses the foreseeability test which follows that if the harm was not foreseeable then the defendant cannot be held liable for the harm caused as there was no proximate cause. In Palsgref v Long Island RR5 a railway guard pushed a man who was holding a package that contained fireworks. The package fell and the plaintiff was injured as a result of the explosion. The court held that the harm was not foreseeable and the guard could not be held liable as there was no proximate cause.6 In Edwina’s case, she could succeed in her claim to have the book replaced with the right one. When she went to purchase the book she asked the assistant to give her the book which was the most up to date. The assistant recommended the book by Anne Roberts and she relied on the assistant’s recommendation to make the purchase. The assistant made a representation which turned out to be false. Edwina relied on this representation and suffered a loss. This makes the contract voidable since there was misrepresentation. In regard to the broken arm, it is clear that Filippo was not aware that Edwina was in the lecture hall. It was not foreseeable that his actions of switching off the lights could cause Edwina to fall and break her arm. The lack of foresee ability means that Filippo‘s actions were not a proximate cause of Edwina‘s injury and, therefore, he cannot be held liable. PART C During his lecture for introduction to law, Filippo noticed Edwina recording his lecture. Filippo was angry because Edwina did not ask for his permission before recording the lecture. Filippo shouted to Edwina to turn of the recorder and not to record any lectures in future. Edwina was upset by the shouting and she thought it was unfair that she could not record the lecture, especially since she believed it was Filippos fault that she broke her arm. Edwina made a formal complaint and the Principal emailed Filippo informing him that he was suspended for two weeks. After the two week period had elapsed, the Principal sent Filippo a formal letter. In the letter, the principal stated that due to Filippo‘s lack of professionalism, he was not required to return to the university. Enclosed with the letter was a cheque equivalent to a month’s salary. Filippo is upset by the turn of events since he has been working at the university for over 20 years and was due to retire the following year. Additionally, Filippo feels that he was entitled to a two months notice as stipulated by his contract. The issue in this case is whether Filippo was unfairly dismissed from the university. Unfair dismissal is a right that can be exercised by employees who feel that they were dismissed unreasonably or unfairly by their employer. Employees who can claim unfair dismissal must have worked for that employer for a qualifying period which is often two years. Some dismissals are considered automatically unfair. Some of the situations that result in automatic unfair dismissal include enforcement of minimum wage, health and safety, membership to a trade union, taking part in a lawful strike, making a request related to training or studying and employee rights. An employer can fairly dismiss an employee due to redundancy, lack of capacity, misconduct, or other substantial reasons. Even where the employer has fair reasons for dismissal, a reasonable procedure for dismissal must be followed. A reasonable procedure includes a disciplinary hearing for misconduct. Failure to observe the statutory minimum notice period can also result in unfair dismissal. Wrongful dismissal occurs where the employer dismisses the employee in contravention of the employment contract. Whereas unfair dismissal is a statutory right, wrongful dismissal arises from the employment contract. Wrongful dismissal can arise in a situation where the employer fails to give sufficient notice to the employee. When sufficient notice is not given, compensation for wrongful dismissal is limited to the pay the employee was entitled to during the notice period. The minimum statutory notice period for employees who have worked over 12 years is 12 weeks of notice. The employer can pay the employee in lieu notice to avoid wrongful dismissal claims. In order to claim wrongful dismissal, an employee must bring a claim before an employment tribunal within three months. After a claim is lodged with the employment tribunal and the employee has show dismissal, it is then essential to determine if the reasons for dismissal were fair. If the reason was fair it becomes important to establish if that reason was also reasonable. In determining if the cause of dismissal was reasonable, it is often imperative to look at the procedure followed in dismissal. Some of the reasons that can result in unreasonableness include failure to give the employee warning, lack of a dismissal hearing, and availability of other options before termination, and disciplinary rules. Reasonableness is determined if other decent employers would have acted the same way the employer acted.7 From Filippo‘s case, it is apparent that he was dismissed without notice. The employer also failed to provide a hearing where Filippo would be allowed to argue his case. The pay given to Filippo was also not sufficient to cover the notice period and cannot be considered payment in lieu of notice. The employer did not observe the statutory minimum notice period which could have been 12 weeks since Filippo had worked at the university for over 12 years. In addition no warning had been given for the misconduct by Filippo. The employer did not cite previous warnings to warrant a dismissal. From the above analysis, Filippo was unfairly dismissed. Furthermore, the dismissal can also be wrongful since the employment contract stipulated that he was entitled to a two months notice before dismissal. Under the contract, Filippo would have been paid an equivalent of two months pay, which would have been in lieu of notice. Bibliography DiMatteo L, Commercial Contract Law Lunney M and Oliphant K, Tort Law (Oxford University Press 2003) Mole E and Stendon M, The Wrongful Dismissal Handbook (LexisNexis Butterworths 2004) Singh R, ‘Causation-Consistent’ Liability, Economic Efficiency And The Law Of Torts (2007) 27 International Review of Law and Economics Tingle J, Establishing Breach Of The Duty Of Care In The Tort Of Negligence (2002) 11 British Journal of Nursing Read More