Principle of Liability - Assignment Example

Question P3 Contrast Liability in Tort and Liability in Contract for Defective Products Area Negligence Product Liability Consumer Protection Question Parties Contract: Between Parties of contract. Tort: Anyone affected by the defective product Contract: Seller bears responsibility for defects Tort: Liability comes about if injury is suffered because of defects Contract: Consumers protected by Sales of Goods Act Tort: The law guarantees a court settlement based on facts. Elements of Liability Contract: Negligence occurs if defects of product causes mismatch with sales term Tort: If seller knows the product can cause damage but fails to prompt consumer and injury occurs Contract: Terms of sale and statute determines product liability for defects Tort: A duty of care arises at the sale. If no warning is given and injury occurs, liability arises. Contract: The Sales of Goods Act enable the consumer to return the goods. Tort: the consumer can take the matter to court and there will be a settlement based on the facts. Defences Contract: The defects were brought to the attention of the consumer before sale. Tort defence: Contributory negligence Contract: Consumer assumption of risk by consumer, exclusion of liability and necessity Tort: consent to the risk, and contributory negligence Contract: Exclusion clauses might be overruled by statute Tort: Reasonable tests and remoteness tests. Nature of Liability Contract: Between seller and buyer only Tort: Between anyone who is injured by the product and the seller Contract: On the contract of sale. Tort: On the usage of the product Contract: Results from the terms of sale and statutory consumer protection laws. Tort: Based on facts of the case Compensation Contract: Based on the terms of the contract and statute Tort: Based on injury, remoteness of case and foreseeability Contract: Based on the products defects. Tort: Based on the effects of the liability. Contract: Specified by statute and/or terms Tort Based on the scope of injury. Question P3.2 [Please check Powerpoint Attachment] Question P4.2 Dear Sir, Response to the Legal Advice Pertaining to the Issues with the Sports Clubs Facility This letter is in response to your request for advice pertaining to a number of tort claims made by residents in your neighbourhood. The main issue in the case at hand include: 1. The complaint of neighbours in the residential area that your sports facility and the threat of a legal action and 2. The threat of a legal action against the sports club due to the claims brought forward by a spectator who witnessed a horrific accident during the injury of a spectator on your premises Sir, these claims have various implications in standard rules of the English legal system. As such, I will want to review a few legal issues that are relevant to the cases at hand. In law, there is a concept called nuisance. A nuisance is an indirect and unreasonable interference in the use or enjoyment of neighbouring land1. Examples of actions that can cause a neighbouring land to make claims on the grounds of nuisance include noise, odours, plants and water. All these make it difficult for people to enjoy their usage of land on their properties. As such, such persons can take legal action against a person causing the nuisance. There are some relevant factors in cases relating to nuisance. First of all, a nuisance must be of a continuous and regular nature2. The court may also consider the nature of the neighbourhood and the intent of the persons carrying out the activity in question (Simpson, 2009). The defences for nuisance are (Hunt, 2004) I. The consent of the claimant was sought II. Where the defendant has been committing the nuisance for over twenty hears without force of secrecy and no one has complained about it. III. Where the action has statutory power or duty eg. Airports. On the second issue, it can be said that a person owes a duty of care to another where an act or situation s/he causes leads to physical injury to another or causes fear of such an injury3. Also, when a person sees or hear an accident or its aftermath, there could be claims for negligent (Hunt, 2006). Also, a person could make a claim for psychological injury where a person s/he has a close relationship or love affection with a person who suffers injury. In order to make claims, the claimant needs to prove that there was reasonable foreseeable consequences for the breach of the duty at hand. If this is not done, the losses could be adjudged as too remote. Application to the Case at Hand In the case at hand, the residents in the neighbourhood can bring a case of negligence against your sports club. This is because the footballs and cricket balls interfere in their right to enjoy their occupancy of their various properties. If this is continuous and regular, then they can have a case against your sports club. However, if you can prove that the residents have given their consent in some way or form, then you can prevent any serious actions and claims to close down. Secondly, if the sports complex has existed in the neighbourhood for over 20 years without any claims from the residents, then they are not likely to be successful in their nuisance claim. Finally, if the local sports club has a statutory backing, then you can operate. For instance if it is under the auspices of the local council or authority, then you can continue your operations without much concern about the nuisance claims. Emeralds Case. In the case of Emerald who witnessed the horrible accident, there could be a case for tort under the principles of negligent liability. However, in most situations, stadia provide express terms on tickets which seek the consent of spectators before they enter the games. In other situations, this is implied. This is because the foreseeability of such accidents during games are not so certain. As such, it can be stated that Emerald consented to various possibilities during the game and this is one of them. Additionally, the claim of Emerald appears to be very remote. This is because there seem to have been no relationship between him and the spectator. As such, it is not sufficient for him to make the claim that there was a psychological injury. Due to this, there can be no successful claim for psychological injury under tort in this case. In conclusion, there are various possibilities in the case of nuisance raised by the residents. This will be based on several possibilities including the consent of the residents, how long the sports centre has been in operation in the location and the statutory powers available for the operation of the centre. Your Sincerely Question 4.2 File Notes for Client Meeting with Alice Atkins to be held on Friday May 4th, 2012 Date of Preparation: 3rd May, 2012 Introduction Alice bought a small bakery business recently. However, the bakery has been shut down because of some lapses in the operation of the various components of her business. The main reasons for this could be reasonably attributed to her reliance on the decisions given by George, a surveyor/valuer and Industrial Kitchen Fitters Ltd who refit the bakery. Issues George: George surveyed the restaurant and provided mortgage for Alice which was used to purchase the restaurant. In the valuation, he certified that there were no structural problems with the premises. However, George did it for a third party organisation, Happy Homes Building Society. Additionally, he made a note that indicated that he bore no legal responsibilities for the valuation report. In spite of the positive report about the premises, Alice slipped and fell on the same premises due to a defect that could have been discovered by George if due care was taken. The injury due to the slip caused Alice to stay at home and postpone the opening day of the restaurant. IKF Ltd. IKF Ltd was hired to refit the kitchen. In the process, they installed a new oven made by Cinders PLC. The oven malfunctioned and led to a production issue which caused Alice to incur a significant claim which contributed to the folding up of the restaurant. Rules Once a person presents himself as a professional in a given field, it can be inferred that such an individual has an above average knowledge and skill in that area (Gillies, 2006). Section 13 (a) of the Supply of Goods and Services Act of 1982 states that services must be carried out with reasonable care and skills (Howells, 2007). Negligence occurs where there is a recoverable loss which occurred as a result of the failure of a party to carry out his duty of care which leads to a foreseeable loss or damage. Application Clearly, the scope of work in Georges valuation did not cover injuries. He stated clearly that the project was for valuation purposes only. This means that George has a strong defence in this case. However, it can be inferred that Alice placed a degree of reliance on the valuation. Due to this, she can present a strong case of incurring an injury as a result of her reliance on Georges valuation. This is because George had a duty of care to provide a clear analysis of the premises. As a professional, he should have foreseen all the possible injury spots and reported them. However, due to his negligence, he could not identify major structural issues. Alice relied upon Georges valuation and moved in and began operation. Based on this advice, she slipped and fell. As such, the case of the limitation of scope of the valuation is somewhat remote. IKF also had a strong duty of care to Alice. They were hired to refit the kitchen. As such, they should have ensured that all issues with the oven were fixed before the restaurant began its operations. However, the management of IKF failed to raise issues with the oven. Again, Alice relied on IKF and used the oven. However, it turned out that the oven malfunctioned easily and caused a damage to a major customer order. It is therefore negligent and Alice can come up with a case for damages. Conclusions Alice can sue George for the injury she suffered. In this case, she can sue for the damages she suffered due to the injury. However, she cannot sue for pure economic loss4. The damages the court will award to her will not include the loss of business revenue and family losses. She can only get damages for the injury she suffered. In the case of IKF, Alice can sue for compensation for the suit that was placed upon her by the people whose cake was burnt. This means that she can get compensation for the loss she incurred due to the burnt cake. She cannot however sue for her idle time and the number of days that she has been out of work. References Gillies, P. (2006) Business Law Surrey: Federation Press. Howells, G. (2007) The Yearbook of Consumer Law Surrey: Ashgate Publishing. Hunt, M. (2004) Law of Tort London: Sweet and Maxwell Hunt, M. (2006) A Level Law: Nutshells London: Sweet and Maxwell. Simpson, J. (2009) UK Law Oxford: Oxford University Press Read More