Aspects of Contract and Negligence for Business - Essay Example

Aspects of Contract and Negligence for Business Introduction A business contract is considered a legal agreement between more than one business parties and is legally binding. The process of developing a contract includes discussions, exchange of information, employment agreements and negotiations. Principles are required in formation of valid business contracts (Anson, 18). Negligence in business takes place when the contracts signed among the parties involved are breeched. Such cases are dealt with by tort law. Task one “For Managers – what you need to know about tort.” Booklet The booklet produced will have the following; 1.1 – Contrast liability in tort with contractual liability 1.2 – Explain the nature of liability in negligence 1.3 – Explain how a business can be vicariously liable 1.1 Contrasting liability in tort with contractual liability Tort liability is an obligation that is considered legal of a party directed to a victim due to injury or civil wrong committed. A court system has to provide a form of remedy to help deal with the issue. It arises when a person’s right are violated causing private wrong doing and damage in the event. Evaluation of the evidence is done before a verdict is raised. Tort law is considered an English common law and is related to situations that one of the parties is injured and sues the other party for the damages (Burton &Steven, 24). The intentional civil wrong or the negligent is not arising out of statue or contract. These may involve defamation or tort for negligence. The situation can also be applied when a person’s injury is based on the breach of duty care by the other person. Contraction liability on the other hand refers to the responsibility of one party over the other as indicated by the terms and condition of the parties involved. The provision for contractual liability can be stated in the contract between the two partners who are in business. It can also be included by one party while presenting the contract to others. One party protects the other in the event of damages as applied in the various insurance companies. The contract is usually stated in written terms (Whittaker &Simon). Torts are acts wrongfully done and may results to, harm or damage to the other person’s body, legal rights or property. The damage may have occurred due to a breach of duty stipulated in the contract or statute. The person affected can sue the other person whose negligence amounted to the harm which occurred. A civil court can give advice on injunctions or compensations toward the person who was affected in the process. On the hand, contractual liability occurs when a contract is created between two parties voluntarily binding them in the process. Contractual law like tort law applies to both companies and persons. Both laws are considered as part of the obligation laws. The contract law is voluntarily assumed whereas tort law applies to relevant situations. Tort law is usually associated agreements unlike contract law that is associated with the law (Burton &Steven, 24). Contract damages are associated with expected loss unlike tort laws which is compensatory. Situation associated with tort happens when the duties of one party as stipulated in the law are not followed. There is no existence of legal relationship in tort law unlike in the contract law which occurs in cases where legal relationship exists between the two parties that are involved (Nation et al, 50). A valid contract has to exist between the parties in a contract liability law. The defendant is only liable in an event of damage according to tort law. Damages and compensation can be claimed in an event where a legal law exists between the parties involved. Criminal law is never based on motives and it is therefore not possible to prove the actions of the defendant were based on malice. Contract law on the other stipulates that that the liabilities of a person cannot be restricted to personal injury or death in events of negligence. 1.2 Nature of liabilities in negligence To law indicates that being liable to something is being responsible for the outcome which occurs when the law is violated or injuries to other people are encountered. Liability is based on intent, for example a person cannot be considered liable if the occurrence is not connected to his actions or responsibilities. The concept of negligence is often employed in cases when the person concerned failed to make appropriate decisions or action that could have prevented occurrence of harm or damage to the other person. In determining negligence liability the law usually apply reasonableness standard to determine whether the accused’s conducts gave rise to an injury that took place. The perceived risks determine the duty that is to be obeyed. Foreseeable risk under such a context is considered a probability and not merely a possibility (Nation et al, 50). The liability comes into force in cases where certain dangerous conditions in the premises can result to the occurrence of a certain injury. The occurrence of the injury has to be foreseen. The harm and damage to the plaintiff is to be associated with the negligence and conducts of the person accused (defendants). The defendant should be aware of the risks exposed to the person by certain circumstances in which he is in control. Negligence is usually associated with some risks that are considered unreasonable. Social interest involvement is usually considered by the court in determination of a reasonable risk. The court has a mandate of weighing the social utility of the conduct and the created risks. Negligence is applied in cases where the magnitude of the defendants’ actions is more than the social utility of the activity. The defendant should posses knowledge regarding the unreasonable risk the person is exposed too while at the same time the plaintiff should not have the same information before the injury event take place. The event may not be considered negligence in cases where the plaintiff has a prior risk knowledge that exceeds the one possessed by the accused (Whittaker &Simon). The situation may not be considered negligence if the plaintiff could use any of his senses to observe the hazardous condition. The plaintiff has a duty to be free from reasonable danger by use of their senses in order to avoid the emergency of certain hazards. Negligence liability comes into force in the event of the defendant having control of the hazardous condition which might expose the plaintiff to harm, damage or injuries. The defendant will not be considered as being negligent he had no control of the hazardous condition. 1.3 How businesses can be vicariously liable Vicarious liability involves a person being held responsible for the omissions or action of the other person. In a business setting an employer can be responsible for the actions of the employees if the situation occurred during the employment periods. It is surprising to note that most employers are unaware that they can be held responsible for certain actions committed by the employees working in their business premises. Such actions include harassments, bullying, discriminatory and violent acts and also breach of copyright. The case will depend on whether the employee was acting in the course of employment or in a personal capacity. The sad part of it is that the employer can be considered liable even after the employee quit from working in his premise (Burton &Steven, 24). The employers should therefore ensure such actions do not occur by taking reasonable steps. Training of the staffs on issues pertaining to their conduct at the place of work is among the steps taken by the employer to prevent misconducts from happening at the place of work. The employer may be subjected to vicarious liability in an event where someone is injured by the employee in the business premise or firm. The person may win a case against the employer and be compensated for the harm that occurred in the process rather than pursuing compensation from the employee. Most people in such situation usually file a case against the employer than the employee who did the action because they consider the employer as having insurance cover associated with the harm. Other events however occur when the person pursues the employee in cases where they are not fully compensated by the employer. Employers are to insure their business to help in cases where such liability takes place. Employers can win the case against the plaintiff if, the person who committed the harm was not an employee in his business premise and if the harm took place out of the course of employment for example the employee was no longer working in the premise (Nation et al, 50). Some situations can make the employee liable for his own action for example in an event where the harm committed was intentional. For example in a night club where the doorman uses force for revenge purposes, the doorman may be liable for his actions in the court of law. Task two To: Mr. Leighton, Head of Building Service From: Mr. Tarvia, Legal Advisor, and Tevernbridge Council. Date: 19/11/2014 Subject: Legal Advice on Two Incidents arising from the Construction Site at the Council Library I am writing to give a legal direction on two events that occurred at the council building during the renovation of the old library and the extension of the building. The council’s building department have reported two cases that are related to the construction going on at their library. The interior library has been undergoing renovation that involved the installation of the lighting system and new ceiling by the building services. Outside the library there is also a building going on that involves an extension of the building that will house the new IT resource centre. Two events have occurred and brought to my attention. The first event involves an elderly borrower by the name Ted Bovis who visited the library last week with an intention of renewed his book. The he was badly injured on the head by one of the old fluorescent light which had become loose. The second incident occurred when a 10 year old boy by the name Asad broke his leg one evening when he had entered the construction site through a broken gap in the perimeter fence to play and ended up falling into one of the holes in the site that was five feets deep. My legal advice on the first case Ted Bovis the elderly borrower was unaware of the hazard that resulted to his injury. The elderly person entered the library premises unaware of the events that resulted to the injury. I have not been informed of any signs that were placed at the site to show that renovation of the library was taking place and that the lights were being changed. The injury and harm experienced by Mr. Ted amounts to negligence and he needs to be compensated for the event that occurred. According to the law, in determining negligence liability, the law usually apply reasonableness standard to determine whether the accused’s conducts gave rise to an injury that took place. The perceived risks determine the duty that is to be obeyed. Foreseeable risk under such a context is considered a probability and not merely a possibility. The council was aware of the risks the old structures were exposing to the people. It is the reason that prompted them to plan for renovating the building. Mr. Ted was not informed that the structures were old or was never cautioned of the dangers he may face while inside the library. The harm and damage to the plaintiff is to be associated with the negligence and conducts of the person accused (defendants). The defendant should be aware of the risks exposed to the person by certain circumstances in which he is in control. The council has to compensate Mr. Ted for the injury because they were aware of the hazards that the old structures can cause yet they did not solve the issue in time. My advice on the second incident The second incident involved a minor who entered the construction site through a gap that was left open in the perimeter fence. Building sites are supposed to be protected by all means to prevent injury to the people. The construction department was aware of the hazards and risks that the construction site exposed to the people. The law stipulates that construction sites should be well protected to prevent hazards that may result to injury, death and harm to the people involved. The construction site in this context was not well protected. We are informed that the child entered the site through a gap in the fence. The present of a gap in the fence that was not repaired by the building and construction department before the construction process begun amounts to negligence. As per the law, the harm and damage to the plaintiff is to be associated with the negligence and conducts of the person accused (defendants). The defendant should be aware of the risks exposed to the person by certain circumstances in which he is in control. In this context the building and construction department is the defendant and the plaintiff is the ten year old boy. The plaintiff was still a child and could not be able to make decisions of his own. His intention to enter the building as we are told was to play. If the building and construction department in the council were responsible enough, then the gap in the fence could have been repaired hence the boy could not make his way through. The boy has to be compensated for the injury that occurred. Task 3 To: The Chief Solicitor to the Council From: Mr. Tarvia, Legal Advisor, and Tevernbridge Council. Date: 19/11/2014 Subject: Advice on Legal Issues Concerning Gavin Lewis I would like to bring to your attention an incident that occurred recently at the council involving an employee of the council’s waste management unit. The name of the employee is Gavin Lewis. The employee is a refuse truck driver. While on his usual duties, he receives a phone call from his auntie by the name Freda. Gavin learned that his auntie was sick and suffering from a very painful toothache and needed to see a dentist urgently. The driver decided to detour from his usual route and drop her off at the dentist in Dawchester. On the way to the dentist the council employee collided with a taxi and injured the driver and his auntie in the process. The driver and the auntie are to be compensated. Gavin Lewis is liable is liable and responsible for the happening and therefore the one to compensate the two. The driver is aware that council drivers are not allowed to carry anyone in their truck other than council employees. The instruction is also reinforced by the presence of the signs in the vehicles of the drivers. This proves that he was aware of the instructions but went ahead to carry the auntie who was not an employee of the council. The council is not liable for the events that took place involving their employees. Vicarious liability doctrine does not apply in an event where the employee performs certain tasks without the permission of the employer (Nation et al, 50). In driving cased for example, the question that always arises is whether the driver was acting on his own or within the employment course. If the reason for the driver changing route is to complete the employment tasks faster, then he is considered to be acting within the employment course. The law stipulates that, the employer will not be held accountable in cases where the employee (driver) takes a detour to do other tasks that are against the instructions of the employer. The driver is considered to be working outside the employment course. The driver in this context worked outside the employment course detoured his usual route with an intention of taking of taking the aunt to the hospital. The moment the driver changed course, with that kind of intention than he ceased working under the instructions of the employer. Gavin Lewis also went against all the other instructions in the truck by allowing the auntie to the enter the truck, yet the council’s employees were the only one allowed into the track. He is to compensate the two people who got injured during the collusion. The lack of the council compensating the driver of the taxi and the auntie is based on the following; the driver was working out of the employment course since the council did not permit employees to do their own tasks when they are out working. The council’s instructions posted on the truck were not followed by the driver. The law also indicates that the employer may be held accountable in cases where the driver employed is not a safe driver. A safe driver is the one who is trained and has experience in driving. The incident however does not give any information concerning the drivers years of experience and therefore the driver is still accountable for what happened. The employers are allowed by law to put safety laws in place ensure it is followed by the drivers. It’s the reason for the policies printed in the track barring other people apart from employees from being carried on the truck. Task 4 To: Chief Solicitor Subject: Legal Advice I would like to give a legal advice concerning an incidence which occurred recently at Franz Liszt high school. The case involves Jason Farrar an employee at the school working as a laboratory assistant. The incident occurred when he was preparing an experiment for the year 10 chemistry class. He was in a hurry and ended up splashing the corrosive substance in his eyes. He was not been wearing safety goggles. The school is said to only have one pair, which were kept over the road in the 6th form centre. Jason is said to have ran to the toilets in order to wash the substance in his eyes. Due to his impaired vision, he had not seen that the corridor floor was wet from the leaking ceiling. He slipped and badly sprained his ankle. He later discovered that cones had been placed around the area of the leak and that there was a sign alerting people to the danger and advising of an alternative route. The law on negligence stipulates that; in determining negligence liability the law usually apply reasonableness standard to determine whether the accused’s conducts gave rise to an injury that took place. The perceived risks determine the duty that is to be obeyed. Foreseeable risk under such a context is considered a probability and not merely a possibility Whittaker &Simon). The liability comes into force in cases where certain dangerous conditions in the premises can result to the occurrence of a certain injury. The occurrence of the injury has to be foreseen. The school administration will not be held accountable for the first incidence since the chemistry teacher was aware of the laboratory safety rules of putting on a safety goggles while preparing for an experiment. The administration in the other hand had bought a goggle to be used in the laboratory though in a different room. In this context Mr. Farrar had knowledge on the safety of the laboratory more than the people who employed him. According to the law, the defendant should posses knowledge regarding the unreasonable risk the person is exposed too while at the same time the plaintiff should not have the same information before the injury event take place. The event may not be considered negligence in cases where the plaintiff has a prior risk knowledge that exceeds the one possessed by the accused. The school administration is therefore not liable for the incident that occurred and the laboratory assistance will not be compensated. The laboratory is said to be tackling the procedure in a hurry without the safety measures on yet aware of the risk and hazard he was exposing himself to. The first incident may have led to the other one. Due to his impaired vision, he had not seen that the corridor floor was wet from the leaking ceiling. He slipped and badly sprained his ankle. The school administration had done enough to protect the people from getting injured at the site by putting signs in place and even advising on alternative route. The laboratory technician is said to have seen the sign after he regained vision even though he was already injured. Liability is based on intent, for example a person cannot be considered liable if the occurrence is not connected to his actions or responsibilities (Nation et al, 50). The concept of negligence is often employed in cases when the person concerned failed to make appropriate decisions or action that could have prevented occurrence of harm or damage to the other person. The action of the school administration such as use of signs to show the danger and hazard that the employee may run into makes them unlikely to be victims of negligence. The administration after realizing that the roof was leaking gave an alternative direction and gave out instructions to the people who may be using the path. The cause of the impaired vision experienced by the laboratory technician is linked to the first incident where the technician was acted without taking care of his safety. The corrosive substance resulted to his impaired vision. The situation made it difficult to see the signs put in place by the school administration. The administration based to the legal point of view should not compensate the lab technician because they did all the necessary action to prevent accidents from taking place. Conclusion The employers and the public should be well informed on the laws that govern negligence, liabilities and contracts to prevent cases of contracts being breached and negligence occurring due to lack of information. Works Cited Anson, William Reynell. Principles of the English Law of Contract and of Agency in Its Relation to Contract. 10th ed. Oxford: Clarendon, 2000. Print. Burton, Steven J. Elements of Contract Interpretation. Oxford: Oxford UP, 2009. Print. Nation, George A., and Matthew Melone. "For The Introductory Business Law Course Law In An Integrated Business Context Consider An In-Depth Study Of Contract." Journal of Legal Studies Education (2012): 283-303. Print. Whittaker, Simon. "The Optional Instrument of European Contract Law and Freedom of Contract." European Review of Contract Law (2010): 371-98. Print. Read More