Negligence, Duty of Care, Breach of Duty Care and Damages - Assignment Example

Q. 1 Negligence, Duty of Care, Breach of Duty Care and Damages In law, negligence means a failure to perform what a rational person would have done in certain circumstances. In order to establish liability, a complainant must first show that the defendant owed duty of care toward the complainant. This means that liability arises in the event that there is duty of care and where failure on the part of the defendant to honour that duty results in damage to the plaintiff. As a tort (where a tort means a civil wrongdoing for which the aggrieved party has a right to make a claim for damages), negligence comprises three aspects, all of which must be proved by the complainant in order for the case of negligence to be successful. These elements are described below. i) Duty of care  Duty of care refers to the responsibility to take rational care that is owed at the time of an action of negligence by the defendant to the complainant. When a court makes a determination on whether the defendant owes the plaintiff a duty of care, it will consider a wide array of legal policy factors and legal principles. In case a situation is an unfamiliar one, i.e. when the relationship is not a proven relationship that includes duty of care, the court will consider several factors. These include the nature of harm suffered by the complainant, the respondent’s control over the scenario that led to the harm, the kind of relationship between the defendant and the plaintiff in comparison to other duty associations, moral and ethical considerations, and coherency and consistency of legal relationships and principles. In Australia, employers have a duty of care toward their employees since they have an obligation to ensure the employees’ safety. For instance, in O’Connor v Commissioner for Government Transport (1959) 100 CLR 225 at 229 the High Court imposed upon each employer, an obligation to take reasonable care for the safety of employees. ii) Breach of duty of care In order for a complainant to prove that there was a breach of duty of care, three elements must be satisfied: That the person was aware of or ought to have been aware of the risk – also sometimes referred to as reasonable foreseeability; That the risk was not inconsequential; and That a rational person in that person’s (defendant’s) position would have acted so as to offer protection against the risk. iii) Damages Damages refer to the actual remedy for a breach of contract. This requires that the court compensate the complainant for his or her injury. Q. 2 Exclusion Clause An exclusion clause is a term of a contract which aims to exclude or limit liability for a breach of contract. It can also be defined as a clause that is revealed to one of the parties after the contract that is sealed fails to become effective. For instance, a contract between parties X and Y may provide that Y will not be held responsible in case there is a contractual breach as a result of its workers, or that if found guilty of breaching a contract, Y will not be held responsible for more than a specified sum of money in damages. An exclusion clause like this one, if properly written, will generally be effective. Nevertheless, there are some statutory conditions that limit or prevent the application of exclusion clauses in a number of cases (particularly in regard to consumer contracts). There are various examples of cases in which the exclusion clause has been used in different ways. For instance, in Olly v Marlborough Court Ltd [1949], P and her husband made a booking at D’s hotel. Due to negligence on the part of D’s staff, P’s furs went missing. However, D had a notice on the hotel room which exempted the hotel from any responsibility in case clients’ property was stolen from their rooms. It was held that the contract had been made at the reception desk of the hotel and an exclusion clause that excluded D from liability for lost clients’ lost property was displayed in the room. Thus the defendant could not rely on the exclusion clause since it was not part of the contract. There are also cases when an exclusion clause in which a document that could be considered to be merely a voucher or receipt will be rendered ineffective. For example, in Causer v Browne [1952], P took a dress to D ( a drycleaner) and was given a docket that looked like a voucher for collection of the dress, but which also had a clause that exempted D from damage to goods or loss. D’s defence that there was an exemption clause written on the docket was rejected because the docket was not a document that contained terms of the contract between P and D, including an exclusion clause. In both of the cases above, it can be seen that in order for the exclusion clause to be effective, it must be drawn to the attention of the other party prior to or at the time of entering into a contract. Q. 3 Consumer Law and Consumer Guarantee The Australian Consumer Law (ACL) is the new national consumer law of Australia. It was consented to by the Council of Australian Governments (COAG), which is a body that represents all federal, state and territory governments of Australia. The new law has replaced more than 900 provisos and approximately 20 territory state and Commonwealth laws with a single national consumer law that gives all consumers in Australia the same rights. ACL has overcome the restrictions faced by the Trade Practices Act (TPA) of 1974 (Commonwealth). Such limitations were caused by the Commonwealth Constitution. They were carried over from the colonial politicians as well as representatives who came up with the provisions of the Commonwealth Constitution during the 1890s when they protectively guarded their existing colonial authority for the states and reduced the powers of the Commonwealth in regard to legislating to some areas like migration and defence. The ACL is a schedule to the Competition and Consumer Act (CCA) of 2010 (Commonwealth), which prohibits unfair restrictive as well as anti-competitive business acts that affect the market in general. The ACL and the CCA regulate the manner in which businesses carry out transactions and /or with consumers and with each other. The CCA as well as the territory and state application Acts stipulate that the ACL is a law of the pertinent jurisdiction. In particular, they: Govern the manner in which consumers are able to access state, national and territory tribunal and courts, Deal with judicial and administrative review procedures in regard to the acts of the regulators under the ACL, and Deal with particular matter of enforcement (procedures and issues) that embody various policy approaches to the enforcement and administration of the law in Australia. The ACL outlines consumer rights that are referred to as consumer guarantees. These consumer guarantees include consumers’ right to repair, refund or replacement and even compensation for loss and damages as well as being in a position to cancel a service that is faulty. Under ACL, consumers are also guaranteed that when they buy services and products, the services/products come with an automatic guarantee that they will work and do what the consumer expects them to do. In addition, products must be safe, able to last and with no faults; look acceptable; and do all the things that a consumer would normally expect them to. For services, they must be offered with acceptable skill and care or technical knowledge, which includes taking steps to avert damage and loss; they must be fit for the purpose; and they must be provided within a reasonable period in case there is no agreed date. Q. 4 Is There a Contract? In law, contract is an agreement that has a lawful subject entered into on a voluntary basis by two or more entities, each one having an intention to make one or more legal commitments between them. The features of a contract include an offer as well as an acceptance by competent people who have a legal capacity, who then exchange their consideration to establish an obligation that is mutual. Intention A contract does not arise merely due to the fact that there is an accord between people. Rather, the parties to the contract must have an intent to enter an agreement that is legally binding. It is not always that this is outlined explicitly but the notion of an intention will normally be deduced from the situation in which the agreement was made. Agreement In order for a contract to exist, there has to be an agreement, which usually comprises an offer as well as an acceptance and involves a consensus between two or more entities. There are complex rules that have been set to determine when offer and an acceptance are valid. Consideration Consideration refers to the price that the promissor asks for in exchange for the promise that they make and is a fundamental requirement in Australia prior to a contract becoming binding. As such, unwarranted promises are by and large not enforceable. Ending a Contract When contract elapses, the parties to the contract do not have any further obligations to each other, except for issues of confidentiality as well as provisions such as warranties. A contract should only be brought to a premature conclusion after meticulous evaluations and having explored all other alternatives. Contract can end or be brought to an end in several ways as follows: The actions taken by the parties in the contract Due to some unanticipated event The contract is perceived to be unfair or constituting an uneven agreement. Q. 5 Landlord and tenant breaking a lease When a tenant signs a fixed term tenancy lease, he or she is committing to stay for the full term. If the tenant’s circumstances change and they intend to move out prior to the expiry of the full term, some potential costs are involved. However, there are some situations where a fixed term lease agreement can be ended without penalties being involved. In case a lease agreement is terminated prematurely, there are instances in which landlords or real estate agents ask their tenants to keep on paying for rent subsequent to the tenant leaving the property until such a time when the agent/landlord has found another tenant to occupy the property. However, this is not what the law provides for in the case of breaking a lease. Tenants can be asked to compensate the landlord for the loss suffered because of ending tenancy prematurely. This can include the rental income that the landlord would have received during the time the property is vacant upon the tenant’s departure. Another possible cost for the tenant is a percentage of the costs incurred in advertising the property to new tenants as well as the agent’s re-letting fees (in cases where the landlord has employed an agent). However, the tenant is required to only pay the compensation in case the Tribunal orders so. A tenant does not have to keep on paying rent prior to the Tribunal’s decision. The tenant and the landlord can also agree to include a break fee clause in the conditions of the tenancy agreement. Break fee is a penalty that the tenant agrees to pay if they move out of a building before a fixed term comes to an end. Where a break fee is included in the agreement, the fee represents the amount that the tenant has to pay if they move out early. Nonetheless, even if the agent or landlord finds a new tenant quickly, the tenant will not be given back the break fee since it is a fixed fee. In cases where the landlord does not comply with the stipulations of a tenancy agreement, the tenant may be able to end the lease agreement easily without having to pay for any damages. This requires the tenant to notify the landlord of the intention to move out 14 days in advance. Read More