Negligence and Duty of Care - Assignment Example

Assignment 1: Negligence and Duty of Care Student’s Name Institution Supervisors Name Date 1. The tests for causation and remoteness. (5 marks) Negligence is defined to as the failure to use reasonable care in a professional practice. When it comes to the law of negligence, the term stands for action in which the courts will take whenever one party contradicts with what an ordinary and reasonable member from an organization of society would be asked to do if he or she was faced with the same type of situation. (Dunham, July 14, 2008) This is especially judged when the negligence of this type is the cause of damage for the person. In this case, the court will judge as to whether the negligence that is proven is the root cause of damage that is experienced by the complainant. 2. Duty to mitigate the loss. (2 marks) When we are looking at the law of negligence, three things usually come in mind; one of them is the breach of the duty, the duty of care and the damages that come as a result of the form of ignorance that is experienced. On the side of duty of care, the law will determine whether the single person who is involved in the negligent act was in a position to take reasonable care in order to avoid the said act of negligence. This means that during the preparation of the item in question of the plan to execute, the person was able to exhaust any foreseen mistake or misstatement before finally making the end presentation to the complainant or the boss of the company. 3. Defences. (4 marks) When we look at the common law, the rule with regard to the rule of contributory negligence, when we have a plaintiff whom due to his or her own negligence has cause the harm will always be barred from recovering from a negligent defendant. This means that, if for example, we have a driver who enters an intersection in the path of a moving car, due to his own action, there will be a collision. The other driver on the other hand, might have been driving and an excessive speed, meaning that if he had been driving slowly, then he might have been in a position to avoid the accident. In a situation like this, it can be said that both the drive and the victim have all contributed to the negligence. This is because, the doctrine of contributory negligence dictates that neither the driver not the victim would be able to recover the ends from the other since they both contributed to the negligence that caused the accident. 4. Proportinate Liability. (3 marks) In the law of negligence thus, the complainant is the person who is affected highly by the act of ignorance of misstatement that in the end he or she suffers a big loss in terms of accounts. The loss can be in terms of financial or losing corporate clients. However as said above, before the accused is put into blame, there should be an investigation to ensure that the person did act with maximum standards of care to avoid causing harm to the complainant. In this case, the accused the complainant should be able to show the court that the defendant did in fact breach all standard of care that contributed to such a loss (Jones, 23 Jun 2011). The legal framework in Australia also provides for a regulation bodies that ensure any form of negligence is dealt with the right way. These bodies are usually initiated by the in ICAA and the Certified Public Accountants under the disciplinary committee of each state in Australia (Louwers, Ramsay, Sinason, Strawser, & Thibodeau, January 23, 2012). According to the law in Australia, this displinary committee have been given the mandate to impose sanction on auditors who show an act of breach of professional conduct or have been involved is some form of negligence which preparing financial reports The law provides for penalties that may include among other things suspension of membership, a fine of up to $100,000, orders for payment of costs if the mistake was his, reprimands (Dunham, July 14, 2008). 5. Statutory modifications. (6 marks) When it comes to the running og government activities, this will be looked in the view of the law on negligence this means that a person is able to find good reason for accepting. It is however, in the same way, submitted there is seldom a good reason to duty of care, this is because the defendant in this case will be the government itself, or in other cases, because the government happens the be the statutory authority, or has statutory duties or powers. When we look at either of these reasons, we find out that they are either narrow or general with regard to the law on negligence. The generality in this case will appear it a situation where all government entities perform their duties differently with regard to each function. The they will also appear narrow when we look at the private sector, meaning that they will deserve to be given a special attention. In the same way, there are acceptions from the government, when it comes to its liability. This has already been proven to be real. The case is the same everywhere even in private sector analogue. With this regard therefore, there is need to find a better approach like for example, having to stop asking what it means to have special rules for the government and how this can be applied with regard to the government actions. There is also need for the government to focus more directly on the judicial role in the case of negligence and ask for example, some of the factors that can be judged as being so difficult for the courts, or those that are found to be inappropriate for their resolution with regard to the government ignoring its statutory duty. 6. Heads (types/categories) of damages. (4 marks) Damages in negligence will occur in thein different categories. However there are the most commonon ones, for example, the first main damage will come about when it is proven that the defendant was in breach of duty and thus negligent. For example, if the plaintiff was exposed to what can be referred to as unreasonable risk of harm, the only solution in with this regard will be for the courts to look at several factors that might bring about the imbalance. As the cause of harm increases, so will be the precaution to fight it. Here thus, there one needs to ensure a balance with regard to the magnitude of risk and the burden to the defendant with respect to what the defendant should or should not have done is assured. To add on the above, the risk of harm should also consider the likelihood of the harm and the depth or the gravity. Under magnitude of risk; likely hood of harm; In Bolton v Stone1; where in this case, the ball that was hit from the cricket ground and hit the Plaintiff. In this kind of situation, the plaintiff cannot be in a position to claim for damages because there was no negligence. If looked at correctly, what a reasonable man would have done was to take into account the degree of risk thus should not have acted upon a bare possibility like would have been the situation if the risk was in all ways substantial. However, when we look at cause of damages, the greater the ability to prove on the side of the plaintiff, the greater it would be for the defendant to be liable, for example, in .Paris v Stephey2; the case involved the risk of an eye injury, the duty of care in this case would be owed to the plaintiff if the damages would include him suffering from a form of disability, this means that when filing for damages, the disability will definitely be taken in to account so long as it is or should be in any case be known to the defendant. 7. Role that disclaimers play. (1 mark) A disclaimer is a document that can specify a mutually agreed and a privately planned terms and conditions as being part of the signed contract. In other words, a disclaimer may also specify warnings or expectations to the public or a specific class of people so as to fulfill the required duty of care that is owed by defendant in order to prevent any type of harm. A disclaimer is usually very important as it enables one limit the exposure that can be caused by damages after some sort of harm of injury that is already suffered[Ken14]. Sources Ken14: , (Adams, 2014), Ans11: , (Anson & Reynel, 2011), Phiic: , (Clarke & Clarke, 2012), Hug08: , (Beale, 2008), Ans11: , (Anson & Reynel, 2011), Assignment II: Discuss how express and implied terms can be incorporated into a contract. 1. Entirely written contract. (5 marks) A contract can be defined as an agreement between two parties with a common interest to create an obligation enforceable by law to do or refrain from doing an activity (Frey, 2007). A contract has the purpose of establishing the agreements of the parties involved and to fix them in accordance with the agreement. It is only enforceable by law only after the parties involved have come to an agreement. The courts can only ensure that the terms of the contract are followed and cannot be involved in their creation[Ans11]. The binding force of a contract is normally based on minds of two parties in good faith and does not contemplate a right of either party to reject it. Once in a contractual agreement the terms can only be set aside without the consent of the parties involved. A legally binding contract involves a process in which one party makes a proposal to the other party who accepts or rejects the proposal. The parties involved then sit down and agree on the terms and conditions of the contract. When an agreement is reached, the terms of the contract can either be written down or recorded and made to be legally binding through the law (Orford, 2005). 2. Signed contract. (3 marks) In a signed contract, an offer has to be by one party which is a proposal to make a deal and outlines the terms to which both parties must adhere. The offer should also outline the time frame for which the contract is effective, the pricing involved, and the general terms of the contract. The offer can be valid for a certain period of time or remain open indefinitely. In general terms, one has top follow the procedure well. It is upon the other party to decide whether to accept it or not. After this, the parties involved then come together to review and if in agreement the contract become legitimate according to its terms and conditions. For a contract to be valid, parties involved should be competent and must have a complete legal capacity to become liable for duties under the contract unless they are mentally challenged, infants, insane or intoxicated, at this they will sign the contract showing acceptance of offer. 3. Part written part verbal. (3 marks) In a written verbal contract, here must be an offer and this must be accepted to make an agreement. The verbal contract can appear to be self-explanatory, however, it is still of great important that the parties distinguish between what the law says amounts to a valid offer. In any contract an offer can be made verbally, in writing or by way of conduct. Even be it a written or verbal contract, it usually the result of the person making the offer intending to do so, of the that is considered, this means that a verbal contract is in most cases very subjective. 4. Entire verbal contract. (7 marks) In a verbal contract as observed above, there will always be a subjective offer and acceptance of that offer, these are always the visible condition of such contracts. However one must not forget that there must be consideration. For example, one needs to show proof that the verbal contract was done in exchange of money for services or goods or something that was of value between the oferee and the one accepting the offer. a verbal contract is thus in most case very complex and also contentious with regard to the requirement of a valid contract. This is because there must be some form of consideration, failure to which the verbal contract will only be looked at as being nothing but a promise from the oferee and the other party, for this reason, most people will find that a valid contract is not usually enforceable in law. To add on this fact, a consideration is not the only thing that establishes a valid contract, there should be a form of contemporaneous value by way of for example exchanging two issues or items in order to show proof of agreement. The technicalities thus involving a valid contract have always led to case law with regard to the issue of what should amount to consideration of a verbal contract, with this regard, the law on contract will always be there to mediate any kind of dispute that might occure in the process. In a situation where there is an agreement between two or more people and that it has been confirmed, there should be evidence of the offer and acceptance, there should also be an exchange of amount or of money or an item that is worth with regard to value for money, there should also be intention to create legal relations between the two parties. Here the courts will draw an inference from the common knowledge and conduct that the parties will be well aware of the nature of the agreement, for example, one that exists between the owner of the shop and the shopper when buying goods, this is usually binding[Phiic]. With this regard, we are looking at a situation where one party will believe that there is no formal intention, which the other party has the knowledge that the item of goods being exchanged contain an error but fail to inform them. Here the court will apply what is usually referred to as an objective test in order to consider the facts for each of the subject. For example, a case that involved a law student who accepted an offer from the chambers of law what accepted as being binding between the trainee and the whole chamber not only with regard to the pupil master, due to the fact that the absence of specific intention on the side of the rest of the chambers was actually not relevant. There was also a clear proof of intent from the conduct of the parties. 5. Implied terms. (7 marks) A contract is an agreement that can either be an implied contract or an express contract. When one talks about an implied contract this is where some of the terms are not expressed in actual words. In contrast to this, an express contract is one in which can be either communicated orally or in writing.An implied contract for example, can be either implied in law or implied in fact. When it comes to contract tort, an implied contract or a contract that is made on implied terms is also known as a 'Quasi Contract,' this is because, at the end of the day, it is really not a contract. Treitel(2014), states,"In deciding whether to imply a term in law, the courts are guided by general policy considerations affecting the type of contract in question; and to this extent considerations of reasonableness and fairness may enter into the implication of such terms." In more simple time, this term means that the ways for which a party would not be required to compensate the other. The test for a contract implied by law is one of necessity for the agreement to be accepted. This is discussed in Liverpool City Council v Irwin3 it was held that it was an implied term of a lease of a maisonette in a Council block that the landlord should take reasonable care to keep the common parts of the block in a reasonable state of repair. The term was clearly not implied in fact: the "officious bystander" test was not satisfied; nor was the implication necessary to give business efficacy to the contract. Therefore on the facts there had been no breach of the obligation. When we discuss terms that are related to implied contract, we refer to when a court will imply to a term that they would feel is necessary to implement the parties presumed intention. To add on the above, there has always been two test what are used, first of all , one can use the business efficacy tests and the officious bystander test to prove an implied contract. In the business efficacy test, is the test that looks at whether the contract would have made sense without presence of the business[Hug08]. With regard to this, the courts will have to imply a term it order to judge as to whether it was necessary for the two parties to do so. An implied contract in any way shall not be valid until there is a very reasonable ground that proves the two parties entered in to a contract, this means that there should be documentation showing the terms and terms of breach in case one happened to have done so. An implied contract is not a defence in court since in any case, there is no proper evidence showing that it was necessary for the parties to enter in to the contract.[Ans11] Sources Ken14: , (Adams, 2014), Ans11: , (Anson & Reynel, 2011), Phiic: , (Clarke & Clarke, 2012), Hug08: , (Beale, 2008), Ans11: , (Anson & Reynel, 2011), Read More