Aspects of Contract and Negligence for Business - Assignment Example

Dale Carnegie and Cleaners: This case can easily be related to that of Mersey Docks. The cleaner was not an employee of Donald and while he had to beat the service of Donald, Donald had no control as to how he should have been doing his job. Donald is in a similar position here as Coggins was against Harbour Board. His relation with the cleaner is under a contract for services and he has very limited control. As between Donald and Dave, the first test of detecting the tort of negligence is establishing whether there was a duty of care. As far their relation is concerned, they are in a proximate relationship being employer and employee. However, the circumstances show that it is quite unreasonable to presume that Donald could have foreseen the harm caused. By applying the test of reasonableness, the courts can easily establish that there is no duty of care in respect of this particular incident hence no tort of negligence by Donald. An employer has the option to utilize the defence of volenti non fit injuria which means “to one who volunteers, no harm is done”. For this defence to be applied, it is important that an employer has an agreement with the employee that absolves him of the legal consequences of his actions. This agreement must be entered by the employee freely and he must understand the nature of the agreement completely. This agreement may or express or implied. If Donald has such an agreement with Dale, he can use it as a defence. By the application of Smith v Charles Baker & Sons1, the employee must expressly or impliedly agree to accept the risks that are incidental to his nature of job. Otherwise, this defence cannot be applied. There is also the defence of illegality, also known as ex turpi causa non oritur action, but it is not applicable here as Dale has not done anything illegal. The defence of necessity is also not available here since Donald has not done anything to prevent a greater harm. Therefore, Donald would not be held vicariously liable for Dale’s lost pay. Donald has the option to use the defence of contributory negligence. This defence is certainly available to Donald as Dale is certainly responsible due to his negligence which has contributed in the occurrence of the accident. In National Cab Co. V. Bagby2, a passenger received injury while attempting to ride off a taxicab during her travelling in the cab. As she was attempting to ride off from the wrong door, an automobile collided with the cab, and injured the plaintiff’s hand. In the trial court the plaintiff recovered a verdict against the defendant. On appeal, held, reversed. The plaintiff was guilty of contributory negligence as a matter of law. In Froom v Butcher3, the injuries could have been prevented by wearing the seat belt. The damages were reduced by 25%. The same is applied to Dale in the above case, where he is guilty of contributory negligence by being unable to look ahead because of the pile of material he had held while climbing the stairs, and slipping from the cleansing machine i.e. vacuum cleaner put there by the cleaner. Contributory negligence would limit the amount of damages payable to him. He might not recover any damages at all. Therefore, Donald might be entirely excused of any liability since the duty of care cannot be established. References Froom v Butcher [1976] 1 QB 286 Smith v Charles Baker & Sons [1891] AC 325 National Cab Co. v. Bagby, 196 Va. 703, 705, 85 S.E. 2d 270, 272 (195) Read More