Business Management Affairs - Assignment Example

?Business Management Affairs (TORT) Table of Contents Table of Contents 2 Introduction 3 Principles of the Tort Law 4 Meaning of the Law 4 Recommendations to Gary 5 Defences Available to the Solicitor 6 Conclusion 7 References 8 8 8 Introduction “You’reHired”, a reality show, organised by Simon gained success over the UK in which the winner was offered a designation of Production Manager at Simons TV. Simon further approached Gary, a judge in the same show, to invest in the business in order to open an overseas office that will help the company to expand in the international market. Gary did not deny the proposal, however, made it specific that he will be financially liable to the amount he invests initially. Agreeing with Gary, Simon instructed his solicitor to prepare a partnership deed in which Gary will be liable for ?50,000, i.e. his invested amount as start-up capital. However, the solicitor drafted Gary and Simon as joint partners accountable for equal and several liabilities. Following a substantial loss, the overseas office closed and the creditors attempted to sue Gary for ?100,000. This was unknown to Gary as the partnership deed was not scrutinised by each of the two investors. In relation to the Law of Tort, this circumstance can be affirmed to be caused due to the careless behaviour of the solicitor and to a certain extent by Gary as well. Based on the Tort Law of Negligence, the paper will intend to suggest recommendations to Gary considering the options based on which he can take legal actions against the solicitor. The discussion will further elaborate on rendering advises to the solicitor, evaluating the options available to him to defend himself. Principles of the Tort Law Tort Law has been introduced to provide solutions to the victims of negligence resulting in damage to the applicant. The three elements that need to be considered while analysing a case of negligence under this particular law are ‘duty’, ‘breach’ and ‘damage’. In order to receive the applicants’ claim and make the defendant liable for the damages, these elements need to be satisfied. In other words, the defendant must be obliged to a duty of the claimant where the duty has been violated by the defendant and consequentially, damages have been caused. The damages can be described with two other sub-elements known as causation and remoteness. Causation refers to the claimant’s justification that had the duty not been infringed; damage should also not have happened. Whereas, remoteness is referred to a scenario where the claimant proves that the damage occurred was not impossible and the defendant should not be held liable for it. The tort of negligence is concerned with situations where sensible care lacked that resulted in damage to the claimant (Adams, 2010). Meaning of the Law The law has been imposed to determine the negligence factors caused either by the defendant or any other person who should be liable to compensate the financial damages to the claimant. The claimant shall intend to prove that due to the negligence of the defendant, the damages have been occurred. On the other hand, under this law, the defendant attempts to prove that the negligence was not caused intentionally and to some extent shall not be liable to the damages caused to the claimant. The law gives the opportunity to the courts to calculate the damages in references to the fault exhibited either by the claimant or by the defendant (Keenan & Riches, 2011). Recommendations to Gary It has been witnessed that due to negligence or carelessness of the solicitor, Gary has been held responsible for the liabilities to the creditors. Even though it is the solicitor’s mistake majorly, to some extent, Gary’s negligence of not reading the partnership deed can also be considered as a cause to his financial losses. In this context, Gary should take legal actions against the solicitor under the Professional Negligence Law. Gary has to prove that the financial loss, he is going to suffer, is due to the professional negligence or mistake caused by the solicitor. He should show the causation that resulted in being equally accountable to the liabilities of the creditors. A similar scenario can be witnessed in the case of Barnett V Chelsea & Kensington Hospital Management Committee [1968], where Mr. Barnet had visited the Hospital following severe vomiting. The doctor instead of treating him advised to visit his general practitioner the next morning if he continued to feel unwell. Mr. Barnet died after 5 hours due to arsenic poisoning. In this case, even though the negligence of professionalism has been witnessed, the doctor was not held liable for the loss as Mr. Barnet would have died even if he was treated in the first instance (Tufal, n.d.). Hence, the Tort Law infers that although the remoteness element has been satisfied, the claimant cannot recuperate the loss faced. Thus, if it is proved that the damage caused involved a meagre role of the defendant’s action, the consequence may be deemed as not wholly accountable for the loss. Based on these presumptions, it is suggestible to Gary that he should make sure, the solicitor does not present any evidence proving Gary as liable to the creditors irrespective of the criterion mentioned on the partnership deed. Defences Available to the Solicitor The solicitor, in order to defend himself, can prove that negligence has occurred from Gary’s part as well and thus reduce his involvement or rather his liability in the consequence. As discussed earlier, Gary had exhibited signs of negligence or carelessness in viewing the partnership deed which if done could have prevented him from facing the trail imposed by the creditors. The scenario can be well understood with reference to the case of Morris V Murray [1990], where the claimant and defendant (i.e. the pilot) both were engaged in drinking before taking a flight, and the plane crashed killing the defendant and injuring the claimant seriously. Along with the defendant, the claimant was also held equally responsible for the negligence of avoiding the risk of an accident that may have caused due to their negligence (Law Gazette, 1990). Hence, it can be suggested that the solicitor should make use of the ‘defence of consent’ where he has the option of proving that Gary voluntarily accepted the risk of errors by not verifying the partnership deed before getting involved in the business. Thus, the defendant has the option of reducing the claim if he can prove that the claimant was equally responsible for the negligence that resulted in loss to the applicant. Conclusion The above case in the context of Tort Law of Negligence indicates that with regard to the professionalism, the solicitor should be held responsible due to the careless mistake conducted by him. However, considering the fact of human error it can be stated that Gary was irresponsible in reading the partnership deed before signing it. Knowing the consequences of violating the contract, Gary should not have performed such negligence act before signing an agreement with a partner. Therefore, it can be affirmed that both parties have the chances of winning the case considering the negligence performed by both the claimants and defendants. References Adams, A., 2010. Law for Business Students: UK Edition. Trans-Atlantic Publications. Keenan, D. J. & Riches, S., 2011. Business Law. Pearson Education. Law Gazette, 1990. Tort; Negligence -- Morris V Murray and Another. News. [Online] Available at: http://www.lawgazette.co.uk/news/tort-negligence-morris-v-murray-and-another [Accessed July 24, 2012]. Tufal, A., No Date. Negligence – Causation and Remoteness Cases. Law Teacher. [Online] Available at: http://www.lawteacher.net/PDF/Negligence%20causation%20Cases.pdf [Accessed July 24, 2012]. Read More