Reparation Law and Evidence - Essay Example

Reparation Law and Evidence This case of Betty who was cycling to work, we find that the law of tort was basically applied, according to law, a tort is defined as a civil wrong which causes harm to a determinate person whether intentionally or not, not being a breach of a duty arising out of a personal relation or contract and which is either contrary to law or an omission of a specific legal duty or a violation of an absolute right, for this case the remedies for the tort are always unliquidated damages, which are defined as the damages which the courts are able to fix, and are exercisable in its discretion. This tort carries a number of elements which must concur, one should therefore prove that there was; some wrongful acts or omission by the defendant, legal damage to the plaintiff whereby some of his legal rights is violated, the wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages.1 In the case of Betty we find that, Negligence which exists in the law of tort was evidenced to have taken place. Negligence according to the contemporary law is defined as the breach of a duty caused by an individual omitting to do something which a reasonable man can do, or even doing something that is so reasonable that an individual would not do. This negligence can be found to be actionable in the sense that it considers the use of ordinary care or skill towards a person to whom the defendant owes the duty of scrutinizing ordinary care and skill by which neglect the plaintiff has suffered injury to his person or property. This negligence carries a number of elements in order to maintain an action in courts, the law recommends that the plaintiff must prove that the defendant owed him a duty of care, that there has been a breach of that legal duty and lastly that the plaintiff has suffered injury to his person or property. This shows that unless all of the three mentioned factors exist the plaintiff is not entitled to succeed in his action. It follows that the actionable negligence consists in neglect of the ordinary use of ordinary care and skills towards a person to whom the defendant owes such legal duty of care. This duty may arise as a result of the legal relationship based on contract or made under some statutes. Here we find that, by Betty cycling in the street where there is no cycle path indicates that she carried out a breach of duty that is normally put by the statute since the statute expected her not to cycle along the street that has no cycle path. therefore she has no right to claim for damages, according to the ordinary law, the rule of Res Ipsa Loquitur applies, it provides that the burden of negligence lies on the part alleging it, but the courts do not insist on the plaintiff to prove where the accident took place which in the normal course of things it could not have happened if the defendant was not negligent. And where the defendant succeeds in proving that he has not been negligent or even goes to the extend of giving the reason of to how the accident could still have taken place without his negligence, here the burden of proof reverts to the plaintiff thus he must prove that the defendant was negligent.2 Therefore, in this case Betty has a right to sue Mike whose car hit and crushed her bicycle claiming that he was negligent of the traffic lights since he is said to have continued through the red light which proved that he was negligent and if he could not have breached the traffic lights rules of the statute, the accident could not have happened. And on the other hand, Mike may also deny the charges claiming that Betty was the one who was negligent by cycling on the street that did not have a cycle path and that she had no right to use the street since there was no cycle path provided. according to the law we find that this rule of Res Ipsa Loquitur to be implemented the case should follow the following conditions, there must be a reasonable evidence, that the operation was fully under the control of the defendant when the accident took place., the last condition is that the accident is such as in the ordinary course of things does not happen if those who have the duty to use of proper care. This is better explained in the case of, Bryne v Boadle 1863: a barrel of flour fell from a warehouse of the defendant on the plaintiff, inuring him in the street while passing through. The judge held that the plaintiff was not required to show how the accident took place, because on the facts negligence could be presumed and the rule of Res Ipsa Loquitur which means that things speak out for themselves.3 In the situation where Sue who was attempting not to hit Betty but instead, she runs over the bike and crashes it and its pedals fly off and hit Anne a pedestrian walking on the street. In this case, Anne is therefore advised to know that this accident occurred as a result of an inevitable accident, which according to the contemporary law is defined as an accident which cannot be prevented by the exercise of an ordinary care, caution or skill. Therefore in order to establish the defence of an inevitable accident, it is necessary for one to prove that the alleged accident was not capable of being prevented by ordinary care and diligence. This is well represented in the case of, Stanley v. Powell, 1891: P who was a member of a shooting party, fired at a pheasant. A pallet hit a tree and rebounded into the eye of the plaintiff who was engaged in the carrying cartridges and game for the party. Held that P was not liable as the incident was purely an inevitable accident incapable of being prevented by an ordinary care, skill or diligence By Sue crashing the bike, the law provides that Necessity as a defence can also be applied, which states that, in some cases damage caused deliberately to individuals may not give rise to any legal action if it was intended to prevent a greater evil from happening, in this case the law does not provide any remedy. We also find that this is well explained in the case of Dewey v White, 1827: W pulled down a house in order to prevent fire spreading to other property. D the owner of the adjoining house which was damaged did not succeed in an action for damages, for it was held that the act of defendant W was motivated by necessity. Therefore Anne can not claim damages caused to her by the hitting that was caused by the pedals of the bike which was crashed by Sue who was attempting to avoid hitting Betty who was lying on the road, this actually indicates that she was trying to avoid a major accident to happen. Anne can also claim for the damages occurring from the accident caused by Sue who is found to be negligent, according to the common law we find that Sue applied the basis of duty of care, law states that if a man is near to another he is under duty not to do that which may cause personal to the other party near him, therefore in this case Sue was under the duty of care to ensure that she does not do something that may injure the other people near the accident, we find that she negligently went ahead to drive not putting in mind that there was an accident that had happened, and in the process of her driving she smashes Betty’s bike whose peddles fly off and hit Anne who was walking on the street, under this Anne has a right to claim for the damages caused by Sue. 4 This case is well expressed in the following cases; Bourhill v Young, 1943: A housewife was alighting from a tramcar. A motor cyclist passing on the other side of the tram collided with a motor car, the noise of the collision causing the plaintiff to suffer nervous shock and also a miscarriage. She sued the motor cyclist’s negligent act, and failed. It was held that at the time the collision took place the plaintiff was not there; therefore he did not owe her any duty of care. Therefore for this Anne’s case may fail since Sue will be in a position of claiming that in the time of the accident Anne was not there and therefore she could not have taken any care of preventing Anne to be hit. The following case also expresses the same happenings; King v Phillips, 1952: the defendant a taxi driver, carelessly reversing his car, ran over the cycle of the plaintiff’s son who was playing in the street. The child screamed. His mother in her house nearby heard the scream and saw the cycle of her son crashed under the taxi. She was convinced that her son was killed and suffered a nervous shock. She sued the taxi driver. Held that her claim must fails as the defendant did not owe her a duty of care, since at the time of the accident she was not present 5 We also find that this accident led to Anne and Betty to be taken to Hospital, Anne who had an injury where her face had swollen and that she could not see by the use of her right eye, whereby a doctor tells her that she will feel better once the swelling goes down. According to law we find that a contract existed between Anne and the Doctor. A contract is usually referred to as an agreement between two or more people which is found to be legally binding. Therefore, for individuals to form a contract, they must adhere to the some essentials that create a valid contract. In this case the contract should be having an offer and acceptance, there should also be intent to generate the legal relation, three elements of consideration should be there, they should also consider the contractual capacity and there ought to be a genuine consent whereby the contract should not be achieved through error, misrepresentation, pressure or undue influence. Contracts can as well be categorized in regards of their enforceability or soundness. Under this, there is a valid contract which is an accord that is binding and enforceable by law and having all essentials of a contract. For Anne and the doctor we find that the doctor was under an obligation to treat the swelling face of Anne but instead he tells her that she will feel better when the swelling disappears, Anne therefore has a right to claim for the damages since according to the law of the standard of care was to be considered in this case, which is usually used to determine whether a person has been negligent or not in the standard of care expected from a prudent man in the particular situation. Law defines a prudent man as a person who has acquired the skill to do the act which he undertakes. The degree of care which a man is required to apply varies according to the particular case this means that when a person has undertaken a duty which requires an extraordinary care or skill, he is bound to use great care in order to avoid the foreseeable harm to a person, on the other hand if the danger is slight therefore amount of care should also be slight. 6 An example for this is that if a person holds himself as being competent or qualified he is under duty to exhibit such care and skill usually found in the persons qualifications. That is Anne expected to get better treatment from the doctor due to the degree of skill appropriate to his profession, but instead we find that the doctor carried out the practice of fraudulent misrepresentation, where he went ahead and advised Anne that she will just feel better instead of giving her the medications required to bring her ill health back to normal. According to law a statement is assumed to be made fraudulently when it is made knowing that it is untrue. It follows that the statement made by one of the parties, but honestly thought to be true does not give rise to an action for damages. For this case Anne is advised to claim for the damages caused by the doctor. This is clearly indicated in the case of, Derry Vs Peek, 1889: where the directors of a company issued a prospectus stating that the company had the right to use steam or mechanical trams instead of horse-driven trams. P obtained shares in the company relying on the representation contained in the prospectus. The company proceeded to make tramways but the permission was refused by the Board of Trade. As a result the company was wound up and the directors were sued for fraud. It was held that the directors were not fraudulent but honestly believed the statement in the prospectus to be true and the action for damages must fail. The law provides that in the situation where an individual relies on the misrepresentation, even though he had been negligent, he can still get the contract set aside and claim damages. The other remedy that may be used in this case of the doctor is that of injunction, which is defined as an order of the court restraining the doing, continuance or repetition of a wrongful act; it may be obtained to enforce a negative contractual term where an order of specific performance would not be available. In this case the doctor may be stopped by the courts not to carry out his activities and pay for the damages caused to Anne. 7 In this case we find that due to the misrepresentation by the doctor we find that Anne who had an agreement with her friends that she would drive them to a concert, she did not fulfill the promise because she couldn’t drive at the moment, and also by being a model she was to undertake an audition for a car advert and as a result of the accident she was not able to attend the audition. For this case the friends are also advised to understand that the accident was not known by Anne that it was going to happen and that she could not prevent it, they cannot therefore go ahead and sue Anne for breaching the contract she had signed with them. Furthermore, Anne had also signed a contract with Sodapop whereby she was to model for a week but she failed to carry out the contract and for this reason Sodapop underwent a lose of four hundred thousand pounds that was used to pay for the booking and retention fees for her delay, in this case we find that Anne is capable of defending herself from paying the damages caused to Sodapop, by claiming that she had to terminate the contract as a result of impossibility, here we find that the law of contract provides that the parties to a contract must perform the respective obligation or pay the damages caused due to the breach of contract, and that the parties are free to provide in the contract that it was to terminate on its becoming impossible or on the happening of a specified event. But if the parties have not made any specific provision against the contingency in their contract, here the doctrine of frustration might be brought in as a Defence by a party proving that a supervening event has occurred beyond the contemplation of the parties destroying the very foundation of the contract. This supervening impossibility will therefore discharge the contract in the circumstances; destruction of the subject matter, in this case, a party is allowed to be released from the liability because of some supervening event that is said to be rendering the performance impossible. Here we find that in contracts the performance depends upon the continued existence of a given person where a condition is always implied that the impossibility of performance arising from the perishing or the injuring of an individual shall therefore excuse the performance. The destruction of the subject matter always need not to be whole it is sufficient as long as it prevents the contract from being carried out. This clearly explained in the case of Nickoll & Knight v Ashton & Co LTD, 1901: A sold N a cargo of cotton seeds to be shipped by a specified ship in a named month before the time for shipping arrived, the ship was so damaged by being stranded that it was unable to load by the agreed time and it was held that the contract was discharged.8 Anne can also use the personal incapacity as a defence in this case whereby, the law defines that in contract of personal services, and the illness of a particular person whose action is vital for the agreed performance discharges the contract. But the law provides that the personal incapacity must be serious enough and not self created to prevent the person from performing his obligation. This is well explained in the case of; Robinson v Davison, 1871: D a pianist agreed to play a piano for R at a concert given on a specific day.D became ill on the day in question and unable to perform his obligation. It was held that he was not liable for the breach as the contract was discharged due to D’s personal incapacity. In the situation where, Betty seeks advice from her friend Julian who is a corporate solicitor, who ends up giving Betty an old and overturned statute claiming that Betty is not in a position of claiming for the damages resulting from the accident, and after the time for her to claim for the damages expires she realizes that she was given the wrong advice by her friend Julian. In this case we find that, there existed an innocent misrepresentation, which is usually defined as a false statement made innocently with an honest belief to its truth and without any intention of deceiving the representee. 9 It occurred that Julian practiced negligent misstatement ,whereby according to the general law a person is held responsible for his negligent but not for his negligent misstatement leading to financial losses incurred by the person who acted believing in the statement. This is best explained in the case of Hadley Bryen & Co. v Heller &Partner LTD, 1964: the defendants a firm of bankers gave a misleading reference about the affairs of one of their customers to the plaintiff who relied upon it to his loss as the reference proved untrue. The plaintiff sued the defendant bankers for negligent statement, even if given honestly may give rise to an action for damages for a financial loss caused to a party acting on the representation. In the case of Betty we find that she relied on the information that proved to be wrong after the time that she could have gotten compensation for the accident that had happened to her, we may therefore concluded that if only Betty could have sought for the compensation without seeking advice she could have been given her compensation, in this case she can therefore go ahead and sue Julian for the issuing negligent statement even if she claims that she gave the information out of honesty. According to the contemporary law, we also find that Julian can be sued for being negligent on matters related to the current legal advice since she is defined to be a corporate solicitor whose profession basically deals with and acquisitions, according to her area of specialization she was under the obligation to practice the standard of care, since she only applied the legal matters that were related to the old times. In this case she can defend herself by arguing that she was not negligent on this matter but she did it out of mistake. The law provides that mistake may be of two kinds the mistake of law and mistake of fact. A person may escape his liability under an apparently complete contract by proving that he contracted under a mistake of fact, and that his mistake was fundamental that it affected the root of the contract. Here the law indicates that, where both parties to a contract are under a mistake of fact the contract is usually pronounced to be void. The case between Betty and Julian proves that there existed a common mistake to the existence of the subject matter; we find that this type of mistake occurs where both parties assume the existence of the subject matter of the contract, when in fact unknown to them that it has ceased to exist. This is also explained in the case of Couturier v Hustie 1852: a contract was made between C and H for the sale of corn which at the time, was believed to be the cargo of a ship on the high sea. Unknown to both parties, the corn had become over-heated and was had been sold at the nearest port. Held that there was no contract because the agreement contemplated the existence of something to be sold and bough, but at the time of the contract no such goods existed. This also applies in the case of Betty whereby at the time the information was being given their existed no such legal provisions so there was no contract between the two parties.10 Sodapops under the case of their contract with Anne is advised to know that the only remedy for the breach of contracts in this case is damages. Whereby the law provides that the objective for all this is to place the injured party as far as possible in the position he was he would have been if the contract had been performed. Therefore, it is indicated that not every kind of damage that the plaintiff is entitled to recover compensation. In some cases, the law considers that the loss sustained from the breach of contract is too remote to merit any compensation. The following case represents the ascertaining of damages by courts. Hardley v Baxendale, 1854: H a mill owner, delivered a broken crankshaft to the defendants, who were common carriers, and they promised delivery on the following day to the maker for using it as a sample. The defendants took several days to make delivery with the result that the mill remained idle longer than it would have been had delivery been made as promised. The plaintiff claimed damages for loss of profits arising from extra delay. The plaintiff did not make known to the defendants that the delay would result in a loss of profits. Held that defendants were not liable to pay H damages for loss of profits, the loss did not occur naturally and defendants were not aware that H did not have a spare crankshaft.11 Therefore one should put in mind that the damages for any breach of contract should be such as may fairly and reasonably be considered either arising naturally for example according to the usual course of things, from such breach of contract itself or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as the probable result of the of the breach of it. Also in the case where profits have been lost to the plaintiff by the fault of the defendant in delaying delivery, and if the other party knew at the time of forming the contract that the special loss was likely to result from the breach of contract, he will be liable for such loss. Regarding this Sodapops do jot have a right to hold liable for the her delay in delivering services to them since she did not know that at the time that she was to deliver her services she could be having an ill health. Also for this case exemplary damages may be used in order to compensate the Sodapops, in this type of damages, the law recommends that there should be a well sated purpose of awarding damages is to compensate the innocent party for the loss he has sustained from the breach of contract. The object of exemplary damages however is to punish the promise-breaker, and to deter others from committing similar breaches. In this case we finally conclude that the general defence of Volenti Non Fit Injuria which means that a person cannot complain of damages resulting from a risk voluntarily consented to run. This is also referred to as the doctrine of assumption of risk. This rule is based on good sense and justice, and is daily illustrated in common life. The question in this case where the plaintiff had the knowledge of the risk, but whether the circumstances are such as necessarily to lead to the conclusion that the whole risk was undertaken by the plaintiff voluntarily. But where a person has knowledge of the potential danger and still undertakes a job, it is not conclusive defence in itself.12 Read More