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Business Law Coursework - Essay Example

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Abraham has at least two possible claims in the law of tort. The first is Abraham's claim of negligence against the shop manager (as personal liability) and against the shop manager's employer under the principle of vicarious liability for the personal injuries sustained when he crashed into the windows left open to the pavement without any visible warning or danger sign…
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Download file to see previous pages (or "Divies") under the principle of vicarious liability. Crates may likewise have a claim for consequential economic loss.
For Abraham and Crates to successfully claim under the law of tort, it must be shown that the elements making up a successful claim of negligence exist: duty, breach, causation, and damage. In the case of Lochgelly Iron and Coal Co. v M'Mullan (1934), it was stated that the tort of negligence 'properly connotes the complex of duty, breach and damage thereby suffered by the person to whom the duty was owing'. It was likewise stated in Burton v Islington (1992) that 'it is now elementary that the tort of negligence involves three factors: a duty of care, a breach of that duty and consequent damage.' Based on the foregoing decisions, the tort of negligence to be actionable must have the following elements: (1) there is a legal duty of care owed by defendant to the plaintiff; (2) a breach of that legal duty of care consisting of an act or omission by the defendant; and (3) consequent damage on the part of the plaintiff as a result such act or omission by the defendant. [see also Markesinis, p. 69 (1999)]
In the recent case of Jones v BBC, 2007 WL 2187023 (QBD), Jones, a freelance sound recordist for defendant BBC, claimed that he suffered personal injury caused by the negligence of the defendants. During a recording of the lowering of a windmill mast, and while Jones was walking under the inclined mast, the windmill rotor fell onto his back causing severe spinal injury rendering him paraplegic. In ruling for the claimant, the court stated that the BBC, as employer, had assumed responsibility for the health and safety of freelancers when they work on BBC productions. Since the safety crew had identified a risk of the falling mast, a discussion before filming should have been made to warn the crew not to go beneath it. But the safety crew did not give the warning. Such failure of BBC, through the safety crew, is considered negligent which caused Jones' accident. It had been held that it was incumbent upon BBC, its safety crew and the owners of the farm as occupiers of the site to take steps further to those they had taken to ensure that the BBC crew did not pass under the mast during its lowering. In the instant case, the shop manager breached the legal duty of care required of him under the circumstances when he failed to give a safety warning or danger warning after opening the windows onto the pavement because it is reasonably foreseeable that such window obstructs the path of the pedestrian and is most likely to cause an accident. Thus, in the case of Crowther v Kirklees Metropolitan Council (2006), the claimant ambulance driver claimed damages for personal injuries she sustained when she went to the house of a patient where the street was a narrow cul-de-sac with no footpaths. When plaintiff got out of the ambulance and placed her right foot on the step, as it was a high drop to the road, and her left foot on the ground, it entered a large defect centred around a circular utility cover measuring 5cm in depth, 40cm in width and 46 cm in length. When her foot entered the defect, she went over on her left ankle, which she strained. In ruling for the plaintiff, the court stated that it was reasonably foreseeable that the defect could result in injury to pedestrians. The ...Download file to see next pagesRead More
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