Contract Law and Tort Law - Assignment Example

Contract law and Tort law Table of Contents Table of Contents 2 ment 3 ment 2 8 References 14 ment Implied terms relate to the practice of formulating and implementing default contractual rules in case the contracting parties expressly specify the term do not comply with the present situation. Rules are also set to overtake the terms set by the concerned parties themselves. Implied terms are useful for reliability of the contractual agreement with the purpose of ensuring dealing in business, attain fairness and diminish the hardship among the involved parties. These terms are implied upon the concerned parties in their contractual agreements with the assistance of statutes and courts. In case the terms have been implied by the courts, the concerned parties have an advantage that these terms could be excluded from the agreement through express provisions. The courts have further divided the terms applied based on ‘in facts’ and on the basis of ‘in laws’1. When it is essential to introduce terms to fulfil and satisfy the expectations of the contractual parties, the courts establishes terms implied ‘in fact’. Terms are implied ‘in laws’ in relation to their specificity of agreements, such as contracts among employer and employee, tenant and landlords, which comprises of basic relations of ‘mutual trust and confidence’2. After rigorous hearings on the implied terms of contracts, the courts attain several conclusions (Sterzhantov, 2015). The case of ‘Reigate v Union Manufacturing Co (Ramsbottom) Ltd [1918] 1 KB 592’3 involved necessity test by Scrutton LJ, where it was made clear that a contract term will be considered implied only when it is mandatory to provide efficacy in the contract in the business sense. This means that at the time of contract, when the concerned parties had contracted that whatever will happen in future is to be managed by the parties only, without the involvement of any other party. The term was confidently negotiated among the parties who claimed responsibility for the agreement. In ‘Atkinson v Ritchie (1809) 10 East 530’4, Lord Ellenborough stated that none of the exceptions that has been previously enclosed within the contract, shall be engrafted upon the contract through its consequences or as an excuse for non-adherence to the contract (Sterzhantov, 2015). The statement has been justified with the help of several cases involving implications of terms ‘in fact’ and terms ‘in law’. In the case of ‘The Moorcock (1889) 14 PD 64’5, chief justice Bowen EJ, contended that the consequences, which the law gathers from the intention of parties involved, the law concludes with the objective of providing efficacy in the dealings and restricting the ‘failure of consideration’6, that would not have been achieved within the consideration of the concerned parties. Further, the court argued that if one of the concerned parties to the contract had the responsibility of dealing with all the cases of implied agreements, it is necessary to institute that in all such cases, the law has lifted the implication from the presupposed purpose of the concerned parties. Correspondingly, such lifting should be made with objective of providing efficacy in the dealings, as per their own intentions about the execution of business events (Oughton, 2000). Accordingly in the case ‘Shirlaw v Southern Foundries (1926) Ltd [1939] 2 All ER 113’7, Justice Mackinnon LJ, declared about a test focused upon the intention of the concerned parties. He further stated that where parties demonstrating a particular intention is left for the purpose of implication or is left unexpressed without saying until it is proved. In such a circumstance, an official eyewitness who could have suggested some important provisions for implementing them in the agreement was restrained in the case with a common notion of the parties that they would follow it (Kain, 2011). Lord Simon in the case of ‘BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1978) ALJR 20’8 stated that a term could be implied when certain criterions are satisfied. These criteria stated that, first; the term must be impartial and rational. Secondly, it was vital to provide efficacy of business in the contract, which will ensure that terms are not implied in case the contract is effectively meeting the needs of both the parties. Third, the term shall be reasonable such that it can be implied without any prior notification. Another criterion was that the implied term should be capable of providing valid expressions and finally, the term implied should not relate to any other term that has been previously implied in the contract (Bowen, 2010). Several other cases justified the statement that it was suitable to derive a conclusion about the various tests that were applied by the courts, in situations when terms were implied by law, and the fact that they were not merely based upon the necessity of involved parties. In the case of ‘Scally v Southern Health and Social Services Board [1992] 1 AC 294’9, it was found that the employer has not provided any information regarding provision and benefits to employees, and as a consequence, they failed to receive incentives. ‘House of Lords’10 (HL) stated that the employers had violated the agreement, which had been previously implied in the employment contract and did not introduce the rights and privileges to the employees. He further held his judgment on exercise of certain conditions that will enable a positive contract among the parties. The first was the adherence to the agreement lay as a result of negotiation among the parties or have been otherwise, introduced through references. A second criterion was focused upon initiating a specific term in the agreement that would enable the employee to exercise his rights for his own benefits. Finally, it shall never be considered that the employee is aware about the terms of agreement and the employer should implement obligatory steps to bring those terms in employee’s attention (McKendrick, 2014). Another important case relevant to this statement was the case of ‘Mahmud and Malik v Bank of Credit and Commerce International SA [1998] AC 20’11. This case focused upon importance of subsistence of’ implied terms’ in the ‘employment contracts’, relating to ‘mutual trust and confidence’12. Here, the employees sued the company for the loss of their job and job prospects in future, as none of the companies was interested in hiring them, after the company went insolvent. Even if the contract featured absence of any term, the labourers argued that there was a presence of ‘implied term’, stating that ‘mutual trust and confidence’ was relatively undermined. Here, the HL held that the terms relating to the concept of ‘mutual trust and confidence’ must be incorporated within the contracts as a vital ingredient for promoting ‘employment relations’13. The court further stated that these terms can be easily modified, added or excluded by the concerned parties, but in this case, the employer was held liable against the charges of corruption and dishonesty as the employer was found to neglected the ‘implied terms’ of ‘mutual trust and confidence’14. Further, the intentions of employers were irrelevant and undetermined in adjudging the claim of the workers in case of breach and distrust (Crown, 1997). Hence, it was concluded that, a breach of trust was developed among the concerned parties that hampered the relationship among employer and labourers, leading to creation of loss of jobs for the employees as a consequence of violation of ‘trust and confidence’15. Statement 2 The ‘Breach of Duty’ in sports events is subject to the ‘Tort Law’16. A conduct, which has negative consequences on others and their private lives, is known as Tort. Here, Clarkson, an amateur sportsperson, got himself engaged in a professional event, which consequently harmed the life of Lewis, a professional sportsperson and indirectly took the life of Murray, a spectator. In sporting events such as mayhem, negligence by an amateur is considered as one of the key factors that affect the lives of others. Sports are governed in adherence to the similar legal rules of social conduct. In sports, negligence by a sportsperson may be held accountable for incurring compensatory charges to the harmful person as damages. Negligence works upon the principle of ‘neighbour’17. Clarkson was careless about his neighbour driver Lewis, who was eventually harmed by his misconduct. There have been a several numbers of cases where the amateur was charged with breach of duty during an event (Rottenstein Law Group LLP, 2014). The case of ‘Harrison v. Vincent [1982] RTR 8’18 provides a similar overview of the judgment made by the court involving an amateur, who had failed to test the gears of his car prior to the race, and had eventually harmed another racer, owing to excitement. The court held that the participant had performed the reckless stunts because of excitement and thrill and further held the amateur liable as he had disregarded safety standards and had acted maliciously (Charlish, 2003). Clarkson, to avoid breach of duty, should have followed certain standards of care. For establishing the accurate ‘standards of care’19, the courts take assistance of a proper and ethical standard of conduct. Hence, lack of experience or knowledge cannot be excused as a failure to comply with such standards. Clarkson was ought to comply with the written standards of the event, that included governmental regulations, statutes, ethical standards of event, knowledge of sports equipment, statutory procedures, event internal policies among others. Clarkson should have complied with those standards that were not mentioned prior to the event, for example general codes of conduct followed in the sports industry, his wearable such as helmet and pads, knowledge about the weather and ground conditions where the event will be conducted. Clarkson should have made use of common sense in place of displaying thrill and excitement, that would have prevented the accident and harm to others. The court may charge Clarkson with the common solution of awarding compensation benefits for health care, medical expenses, lost incomes, pain and misery. In cases where there exists a high level of misconduct, the court may charge the accused with exemplary and punitive damages in addition to regular compensation. While deciding upon the defendant, whether, the player has acted reasonably or has performed ‘Breach of Duty’20, the court considers the likelihood of the harm, where the defendants are not supposed to defend adjacent to those events, which cannot be foreseen. The court will take into account the seriousness and importance of the harm, the cost of preventing such harm in future and finally will focus on utility of the conduct of defendant. In case of proximate causes, the court utilizes the ‘but for’ test, that enquires the defendant regarding his ‘but for’ actions21. It helps the court in determining the outcomes of the action based on how the events are generally conducted (US Legal, Inc, 2014). The standard of care that is supposed to be received by one player from another sportsperson depends upon the common codes of conduct and reasonable concern about the situations where the codes were placed. In such circumstances, the appellant was acting recklessly and had performed the tasks owing to thrill and excitement. This statement was justified with the court’s ruling in the case of ‘Condon v Basi [1985] 1 WLR 866; [1985] 2 All ER 453’22. In this case, the appealing court established the fact that the sportsperson will be legally responsible for the tort to other sportsperson in case if the harm was a result of negligence (James & McArdle, 2005). The festival organizers, on the other hand, who overlooked the safety precautions, would have also saved a life, if the organizers have considered certain ethical codes of conduct. The conducts, when adhered properly, would significantly change the affect that the sportsperson and spectators faced during the event. The organizers, instead of cutting out expenses and keeping in mind the viewing angle of customers, must not had compromised with the safety standards. In case the officials were concerned with the problems faced by spectators while enjoying the event, the officials should have made use of large TV screens and projection technologies that would have enabled a wider viewing angles and scope to the spectators. The laws governing liability of event organizer plays a significant role for deciding how these laws are applied in sports injuries, as in this case, the harm to the spectator was due to negligence of organizers. The statute of ‘Occupier’s Liability Act’23 builds a sense of responsibility upon the event organizers to make amendments and consider the safety standards of the spectators who are visiting the event. The act further stated that the level of care would depend upon the condition prevailing in the event, the activities that will be conducted in the event and controlling the involvement of third parties in the event (Fast, 2004). One such case was ‘Simms v Leigh Rugby Football Club Ltd [1969] 2 All ER 923’24, the court held that it was a contrasting event and was considered unforeseeable by the event organizers and therefore, the appellant could not be held liable by the court. The event organizers must take care of spectators, should know about their duties, must assess the places where events are to be conducted and must ensure that a trespasser does not fall under the area of danger and maintain proper ‘standards of care’ by providing them safety and protection measures (Tufal, n.d.). In the final stage, Murray died because of negligence by Fernando, in operating a complex surgery over Murray. This is in adherence to the concept of ‘wrongful death’25. A majority of the lawsuits under wrongful death of a person are solved with the assistance of similar clues and less intensive proof standards. In case someone is found guilty with the wrongful death, it remains unsure whether the person will be convicted or not. Murray should have been hospitalized immediately after he was injured. Such response would have prevented Fernando from performing such a complex surgery. The main cause behind Murray’s death was the negligence of an amateur surgeon, which eventually resulted to his death. In the context of ‘wrongful deaths’ courts usually decide the pecuniary losses inquired by the decedent’s relatives26. These losses include the absence of support, loss of future inheritances, services and medical costs. The courts ensure that the compensation paid is reasonable and as per the demand of the relatives of decedent. The family members of decedent can also enquire for medical benefits and funeral costs, that will require the surgeon to provide that additional charges. The damage awarded by the court will also determine the interest that will be calculated from the day of decedent’s death. The court may charge the surgeon with the decedent’s present and future scope of income along with charges for ‘loss of parental assistance’27. In situations involving ‘wrongful death’, the court determines the amount of compensation after hearing and analysing facts28. The size of compensation is affected by the decedent’s earning capabilities at present, his income if it was distributed. The court can also provide additional compensation to the decedent’s members in case if he was unemployed, but had earlier worked somewhere else. The members of decedents can make use of expert indication for determination of such losses as compensatory charges in order to present the court with the actual worth of decedent (Thomson Reuters, 2014). References Bowen, A., 2010. Implied Terms in Commercial Contracts: Attorney General of Belize v Belize Telecom Ltd [2009] 1 W.L.R. 1988, Privy Council. The Law Publishers. [Online] Available at: http://www.terrafirmachambers.com/articles/ImpliedTermsinCommercialContracts.pdf [Accessed January 06, 2015]. Charlish, P., 2003. Richard Vowles: Rugby Case. Journal of Personal Injury Law, pp. 1-14. Fast, K.S., 2004. A Guide for Amateur Sports Organizations and their Insurers. Sport Liability Law. [Online] Available at: http://laboratoire-droit-sport.fr/wp-content/uploads/2013/10/Sport-Liability-Law-January-2004.pdf [Accessed January 06, 2015]. James, M. & McArdle, D., 2005. Are you experienced? “Playing cultures”, sporting rules and personal injury litigation after Caldwell v Maguire. The Tort Law Review, Vol. 13, pp. 1-14. Kain, B., 2011. The Implication of Contractual Terms in the New Millennium. Canadian Business Law Journal, Vol. 51, pp. 170-186. McKendrick, E., 2014. Contract Law: Text, Cases, and Materials. Oxford University Press. Oughton, 2000. Sourcebook on Contract Law. Cavendish Publishing. Rottenstein Law Group LLP, 2014. What is “Breach of Duty”? Duties of Care. [Online] Available at: http://www.rotlaw.com/legal-library/what-is-breach-of-duty/ [Accessed January 06, 2015]. Sterzhantov, I., 2015. Implied Term of Contract. Case Law Quotes. [Online] Available at: http://caselawquotes.net/I/Implied_Term_Contract.html [Accessed January 06, 2015]. Thomson Reuters, 2014. Wrongful Death Overview. Torts and Personal Injuries. [Online] Available at: http://injury.findlaw.com/torts-and-personal-injuries/wrongful-death-overview.html [Accessed January 06, 2015]. Tufal, A., No Date. Occupiers’ Liability Act, 1957. Liability for Land and Premises. [Online] Available at: http://www.lawteacher.net/PDF/Liability%20for%20Land%20Premises.pdf [Accessed January 06, 2015]. US Legal, Inc, 2014. Tort Law. Sports Law Home. [Online] Available at: http://sportslaw.uslegal.com/tort-law/ [Accessed January 06, 2015]. Read More