Workplace Health and Safety - Case Study Example

Foundation of business law Name Course Tutor Date Introduction In this passage, there are multiple legal issues that arise that can lead to litigation. One situation that can lead to a successful law suit is where the bank puts the new recruits at the reception desk to serve the customers. These new recruits do not have customer service experience. This is why Sam ends up encouraging the old man to opt for currency hedge fund without fully explaining the risks attached to it. We see him giving the old man the glossy brochure that explains how the currency hedge funds work. Sam knows well that this brochure does not contain the risks that accompany the currency hedge funds. Further more, Sam does not explain every detail to the old man, but rather he just tells him that he reads on himself to see how it works. The logic here is that this is an old man he can not comprehend everything especially in this modern digital age where the world of business has become quite sophisticated. Thus, Sam assumed that the customer would have to understand without considering his age. Moreover, Sam did not consider giving the customer the thick white document that contains all the details concerning the currency hedge funds. From this situation, the customer can successfully sue the bank for misleading him to opt for the currency hedge fund which was riskier as detailed in the white document which he was not given. The old man can use the basis of misrepresentation take a legal action against the bank. Misrepresentation is a legal term used in the law of contract which is defined as a false statement of fact made by one party to another (Lawteacher.net, pg 1). Such statement must have an effect of inducing one party to enter into a contract without disclosing all the material facts to the other party. When the aggrieved party take a legal action in court, the effect of actionable misrepresentation would be to make the contract voidable hence giving him the right t rescind the contract and claim the damages he may incurred. One of the cases of misrepresentation is that of Gordon v Selico (1986) and St Marylebone property v Payne (1994). Sam misled the old man to take the foreign currency hedge fund as an investment option without disclosing to him all the information including the risks involved despite the old man insisting of taking an option that is less risky and of good returns. He did not give him the white paper that contained the risks involved. To an extent Sam is not accountable because he followed the instructions given to them by their managers that the white papers now days are costly to print. Therefore, when the old man suffers a loss due to the risks involved in this option, he can easily sue the bank successfully in court for misrepresenting the facts. One of the court’s decisions on this suit as mentioned earlier would be rescission to make the contract voidable. This is where the court cancels the terms of the contract between the plaintiff who is the old man and the bank. The court orders the bank to refund the plaintiff his money he used to invest in the currency hedge fund. Another legal remedy the court would give is ordering to pay the damages caused to the plaintiff. Incase the plaintiff suffered the damages after being misled by false misrepresentation of the information by the bank, the court would instructs the bank to pay the plaintiff the full cost of the damages. However, for action of this case to be successful, the plaintiff must prove several issues to the court. First, the old man, (the plaintiff) should prove to the court that there was a false statement of fact made to him by the bank employee that misled him in taking this option. (Harpwood, 2008, pg 469). Secondly, the statement had acted to induce him to decide to take the option and lastly, the plaintiff should also prove that he suffered damages due to false misrepresentation of the facts (Lawteacher.net, pg 1). Actually when the court satisfies that the plaintiff was duped into the contract, then he would likely win the case. On the side of the defendant the bank can use some legal defenses to defend itself to evade the case or get fair judgment from the court. The defendant can use the defense of contributory negligence to overthrow the case (Oliphant & Lunney, 2008, pg 36 Here, the defendant can argue that for this situation to happen, it was much contributed by the negligence of the plaintiff. The plaintiff did not have time to enquire fully over the issue from the experts like the bank managers but he relied on the explanation given by the receptionist at the front office. The plaintiff was supposed to make good enquiries from the inner offices from the relevant people who could explain further before he decides to invest in such investment option. The second defense the bank can use to defend itself against the case is the defense of consent (Andy Gibson, Douglas Fraser, 2012) This defense is based on the principle of “volenti non fit Injuria” this expression means that an individual who has voluntarily agreed to suffer damage when entering a particular contract cannot claim the compensation when he suffers harm. Here, thin old man knew very well that lucrative investments such as currency hedge funds must accompany more risks. Therefore, he could expect good returns or bad losses. Securities of that nature have such characteristics. If the investor happens to get profits, he gets in double digits but in case there is a loss, the loss is always severe. Therefore, the bank can defend itself against the case that the plaintiff voluntarily agreed to take then risky option. He could have considered the risks first before settling on such deal. The secondly legal action that arises in this passage is where the same old man fall on the floor of the banking hall where running to take a bus. We find that the floor of the bank is quite slippery due to the water brought in by the customers who has come in because of some rains outside. The old man falls and hurts his knee because water was all over the entrance of the banking hall. This old man still can take a legal action against the bank for making him fall and be hurt. Section 5 of the employers ‘act states that, an employer must ensure that the employees and the customers are provided with safe working place. It is the responsibility of the employer to ensure that the working place conditions are safe and secure to safeguard the life of the employees and customers (Harpwood, 2008, pg 134). Now from this, the employer which is the bank is responsible for the damage caused to the old man when he fell and was hurt due to the slipperiness of the floor. The old man can sue the bank in court on the basis that the bank breached its legal duty of care (Oliphant & Lunney, 2008, pg 32). He can argue that since the bank is the one that had the legal duty of care of both the employees and the customers, he must be compensated for the damages he incurred after falling on the floor of the bank. The bank should have ensured that the floor is safe for the customers even if it was raining. The bank would have organized to wipe the water off the floor incase it rains. In addition, the bank would have ensured that in case it rains, the customers could not come in with water. Thus, the old man can accuse the bank for being careless to that extent. In the law of tort, the legal duty of care is a legal obligation that is imposed to a person requiring him that he adheres to the standard of reasonable care while performing a particular act (Harpwood, 2008, pg 27). Thus, the bank had a standard of reasonable care to its employees and the customers to ensure their safety while they in the bank premises. Duty of care is one of the elements that must establish in court for the successful litigation of the negligence or carelessness action. Here, the plaintiff must prove to court that there exists a duty of care provided by the law which the defendant owed to him Secondly, he should prove to court that there was a breach of duty of care by the defendant, then lastly the defendant should how the court that because of the defendants’ breach of duty of care, he suffered recoverable damages. Some of the cases that were decided basing on this obligation of duty of care include MacPherson v Buick Motor Co. (1916), Donoghue v Steveson (1932) etc. Some of the defenses the defendant can use to throw this case are; first, we have contributory negligence Andy Gibson, Douglas Fraser (2012) .As in the first case, the defendant which is the bank can argue in court basing on the provision of the contributory negligence that the customer or plaintiff was a bit careless that is why he fell and got hurt. Contributory negligence is where by the plaintiff took part in leading the situation to occur. It is obvious that most of the banking floors are slippery because of the materials used to make, the old man because he had seen his bus, he decided to run carelessly in the banking hall heading to the entrance. Unfortunately when there was some water due to the rains he slipped and fell on the floor. To an extent the plaintiff contributed to his situation. It was not right for this customer to run in the banking hall. In fact mist banking hall have some notices written “caveat emptor” which mean be aware of the dangers. The second defense is the defendant can use to evade this case is the defense of the inevitable accident. Inevitable accident that has occurred which could not have been avoided in spite of the reasonable care on the part of the defendant (Goudkamp, 2011, pg 1). Now, the defendant has the task to convince the court that he could not have avoided the injury sustained by the plaintiff in spite of the every effort he could make. When the court actually is convinced that it was hard for the defendant to avoid the accident, the case would be thrown or the defendant would get fair judgment from the court. Some of the remedies the court can award to the plaintiff after proving that actually the defendant breached the legal duty of care are; compensation of the damages. Here the court orders the bank which is the defendant to compensate the plaintiff of the damages suffered. Since the plaintiff was hurt his knee, the bank can be required to take care of the medical costs of the plaintiff until recovers fully. Another decision by the court would be injunction where the court orders the bank to put some safety measures at the entrance of the bank o avoid future accidents by the customers and employees. Bibliography Andy Gibson, Douglas Fraser (2012). Foundations of business law COML 1001, Pearson Publishers. Goudkamp, James. (2011). A taxonomy of tort law defenses. Accessed on web 24th April 2013. Retrieved from http://www.law.harvard.edu/programs/about/privatelaw/related- content/goudkamp. taxonomy-of-tort-law-defences.pdf Harpwood, V.H. (2008). Modern Tort Law. 7TH Ed. Routledge publishers .UK. Lawteacher.net. Misrepresentation. Accessed on web 124th April 2013. Retrieved from http://www.lawteacher.net/PDF/Misrepresentation%20Lecture.pdf Oliphant, Ken & Lunney, Mark. (2008). Tort law: text and materials. 3rd ed. Oxford University press. UK. Read More