Contracts and Negligence Assignment Essay

Q. 1.1A Contract is an concord that is obligatory when imposed or acknow leadged by rectitude. (Peel, 2010). An capital of New Hampshire is a film when forge with the willing approval of those entangled in the contract, for a legal consideration and with a legitimate object, and non hereby expressly decl ard to be toilettecel (Malaysian Contracts Act, 1950). Contracts can either be Bilateral or Unilateral. Bilateral Contract is an agreement where a sh fall out out is exchanged for a call. For instance, contract for the sale of goods is a two-sided contract. The purchaser askd to purchase the goods, in return for the sellers promise to supply the goods.Figure 1Source https//www.google.co.uk/ lookup?q=drawing+of+bilateral+contract+by+wikispacesThe above shows both sides promise to do somethingUnilateral Contract occurs where just wiz somebody makes a promise open and usable to both single who performs the required do. For mannikin collecting the reward such as 100 fo r a lost document or pet is unilateral contract.Figure 2 Source http//www.im jump ons.123.tw/unilateral-contract/ The above shows lone(prenominal) angiotensin-converting enzyme side promisesContract can likewise be oral or scripted. Furthermore in rig for a contract to be legitimate the crack cocaine and acceptance criteria must be met. The law of naturefully acceptable method for a contract to be natural c everywhereing is illustrated in the diagram under. This is known as Formation of Contract. Figure 3 Source (www.laws1008.wikispaces.com)A Contract comprises of six important elements before it becomes valid and these ar tin, credence, Consideration, objective to create Legal relation, Certainty and Capacity. If a single one of elements re bed above is missing, the agreed contract will become illegal. The main elements atomic number 18 explained belowOfferThis is the first element in a valid contract. According to Peel (2010) an put forward is an expression of will ingness to contract on specified scathe, made with the intention that it becomes ski attach once it is accepted by the person to whom it is addressed. An offer must be communicated and should be explicit. The person putting up the offer is referred to as offeror whilst the one-on-one who receives the bid (offer) is referred to as the offeree. hitherto, an offer must be distinguished from invitation to treat. There are two causal agents to be considered here. One consequence is Gibson v Manchester metropolis Council (1979) Mr Gibson was displace a letter that sensible him the council whitethorn be prepared to sell the property to him for 2,180 freehold. The City Treasurer say in his letter that This letter should non be regarded as firm offer of a mortgage. Included in the letter was the instruction on how to complete and return the envelop application form to make a formal pass along to purchase the property.Mr Gibson did as he was prayered butbecause of unanticipated ch ange in governmental leadership of the council, the proposed action to sell houses to tenants was changed and Mr Gibson was nonified fit inly that it would no longer be possible for him to buy the house. Initially the Court of Appeal affirmed in that respect was a binding contract amongst the the council and Mr Gibson but the finding of fact got over decreed on appeal to the menage of Lords. The outcome of the idea states that the first note forwarded by the Council was not an offer to sell rather it is an invitation to treat and further stated Mr Gibson did not accept an offer instead made one when he sent his completed requisitioned form. However, in an identical causal agent of Storer v Manchester City Council (1974), Mr Storer puts in a bid to purchase his council property and he was forwarded an bargain for barter of a Council House form which he signed and posted it back to the Council.The council received his reply before the political reform affecting the sales o f house to council tenants transpired. The Council contended that the Sale of Agreement Form to sell the Council House was not an offer and in this instance no contract was contracted. However, the Judges failed to agree and ruled that the form was thence an offer immediately Mr Storer signed the form and forwarded it back to the Council. It is pertinent to point out the differences amid these two similar cases. In the case of Mr Gibson no Agreement for Sale was prepared and Mr Gibson did not sign. Whereas for Mr Storers case there was an agreement consequently, the bargaining has been by means of and through and an agreement attained. Acceptance Is defined by Chartered make for of revenue as whatsoever words or actions signifying the offerees consent to the terms proposed by the offeror. Acceptance must be final and unqualified. Acceptance should be conveyed to the offeree.The wordings contained in the terms of the acceptance must be exact wordings in the terms of offer. Carl ill v Carbolic Smoke Ball Company (1891) case refers. The caller placed an advert in a newspaper, and in addition put a hit of cash on deposit with a bank and govern they would pay anyone who contacted influenza patch using their products, a remedy for curing flu, coughs, colds, bronchitis. It stated that anyone who had the ailment after taking the medication shall be recompensed with 100. A consumer, Ms Carlill, took the medication and caught the flu. The firm was bleed ond by her for damages and her case was successful. Consideration means something of value is given by one party to the order it is the price ofthe promise (Chartered Institute of Taxation 2013) In Dunlop Pneumatic Tyre Co. Ltd v Selfridges & Co. Ltd. (1915)Consideration is an act of forbearance of one party or the promise thereof, is the party which the promise of the other is bought and promise thus given for value enforceable. Selfridges broke the term of agreement and Dunlop sued and lost the case because Dunlop could not enforce the contract because they did not win any consideration for the promise made by Selfridge. It is important to highlight that past consideration is no consideration. This means that anything done before the promise in return is given is no consideration and it is not adequate to make the promise binding. Types of consideration includeExecuted (present) this is when an act is completed. An framework is a Unilateral contract Executory this is when promises clear been made in exchange for performance of acts in the approaching. For instance, a Bilateral contract Past consideration.In addition there are trustworthy requirements for consideration to be valid and these are It must not be past. However, there are exceptions such as(a) Previous request where the promisor has previously asked the other to pull up stakes services. Lampleigh v Braithwait (1605) (b) Business Situations, that is, when a thing is done in business and both parties perceived that it wi ll be paid for. plateys Patents (1892) refers. (c) The Bill of Exchange Act 1882 Section 27 (1) says provided that previous debt is valid for a bill of exchange. It has to be forbearance to sue that is, if an individual has valid telephone call against another person but promises to forebear the enforcement. Combe v Combe (1951) & Alliance Bank v Broom (1864) It should be passed at the request of offerer. Durga Prasad v Baldeo (1880) It must move from the promisee. Dutton v Poole (1677) & Tweddle v. Atkinson (1861) It must be sufficient. Thomas v Thomas (1842) Chappel v Nestle (1960). Cannot consist solely on position value White v Bluett (1853) It must be legal that is not doing things that are immoral Wyatt v Kreglinger and Fernou (1933) Performance of existing concern that is, person elevator political machinerying out duties that under general rules, they are required to do will not provide consideration.Traditional authority for rule Collins v Godefroy (1831).Carrying out redundant duties Glasbrook Brothers v Glasmorgan County Council (1925) Existing Contractual craft this is where an individual has promised to do a thing already obligated to them under a contract that will not amount to a genuine consideration. (Stik v Myrick (1809) 2 Camp 317 Hartley v Ponsonby (1857) William v Roffey if a 3rd party is owed for existing contract Duties to pay debts. This is where debts are paid in instalment. This is not a valid consideration and it is known as Pinnels Case. Foakes v Beer (1884) Intention to create legal relations Parties to the agreement must intend to go into a legitimately binding agreement or contract. This is an intention from the two involved parties to go into a lawful and binding association. If there is no intention the agreement will be vanity. Intention to create legal relations could be Commercial or business relations.Kleinwort Benson Ltd v Mining Corporation Bhd (1989), or, Social friends relation. Simpkins v Pays (1955) and Fa mily or domestic relations. Balfour v Balfour (1919). Capacity All those involved in a contract should possess legitimate ability to go into it. An individual unsafe physically, demented or a minor under the age of 18 cannot go into a binding. However, certain groups of people who find limitations such as mental health cater, drunks and minors under the age of 18. Those are the mentally ill, Minors under the age of 18 as stipulated by the Family Reform Act 1969. e.g. Chapple v Copper (1844) where a service was considered inevitable but in the case of Nash v Inman (1908).Where a waistcoat was supplied to a minor would have been considered necessary but in this case it was the other way round as, purchase of the waistcoat is not necessary because the father had already provided the minor with several waistcoats. If a minor procure a luxurious thing and did not acquire because of necessity, the minor is liable(p) and be responsible for his action. Privy of Contract means that a con tract cannot under normal situation confer skilfuls or impose responsibilities emerging from it on any person except those involved in it. It is also known as Rights of the third party Act 1999. Treitel (2004) It isin also the relationship between the parties to an agreement, though there are exceptions, Q. 1.2.Face to Face (Verbal or Oral) This is an agreement based on spoken promises, however it may be difficult to prove and it legally binding andboth parties will understand what they have agreed to and bargained in good faith. www.ehow.com Phillip v Brooks (1919) case refers. It is case that involved a burglar who falsely pretended to be Sir George Bullogh and bought jewellery under Sir Bulloghs name with a cheque. The thief convinced the jeweller to part with the ring because his wifes birthday was next day. The jeweller was convinced the was indeed Sir Bullogh after checking the address directory which tallies with Sir Bulloghs address details. As soon as the rogue left, he change the ring under the false name of Mr Frith and vanished into thin air. The claimant instituted a unilateral mistake of identity legal action.The case was affirmed that the transaction was not void for mistake because the parties transacted a face-to-face contract and in law it was assumed they dealt with the person before them and not the person they claimed to be. Written Contract This is a written document indicating an agreement between two individuals. The parties can be human beings, organisations and businesses. All parties will have to append their signature to the contract to be legitimate. It also acts to protect both parties from fail of contract. www.wisegeek.com On-line This is also known as Distance Selling when goods are sold to consumers void of face-to-face contact and done through Internet, e.g. Amazon.co.uk, eBay, booking vacation and on line banking. This type of transaction is governed by the Distance Selling Act 2000.Four contractual elements are containe d in on-line contracts offer, acceptance, consideration and intention. Contracts by Deed is a written document signed by the promisor and it must be pull be clear in the wording of the document that is intended to take effect as a deed. The must be peached by a third party. (Chartered Institute of Taxation 2013). The property title will not be given to the potential buyer until the final payment is made. It is also referred to as Sales Contract. Q. 1.3. Terms are the contents of contract. It is apply in the civil law, to denote the space of fourth dimension given to the debtor to discharge his obligation.Terms could be expressive resulting from positive stipulations of an agreement. It could be of right or of grace it is not within the agreement. Terms are of grace when it is afterwards granted by the judge at the requisition of the debtor. Contracts terms may be expressive or implied and could be classified as either conditions, or warranties or innominate terms. www.tutor2u.ne t An express term is one thathas been particularly stated and agreed by both individuals at the time the contract is kill. It could be written or oral. www.tutor2u.net Implied terms are words or stipulations that a court of law presumes were planned to be incorporated in a contract meaning the terms are not expressively mentioned in the contract. www.elawresources.co.uk It could beTerms implied through custom, Hutton v Warren (1836) EWHC J61 In fact. The Moorcock (1889) 14 PD 64At Law Shell UK v Lostock Garage Limited (1976) 1 WLR 1187There are two main types of implied term(a)Terms implied by statue for example Sales of Goods Act 1979. There are about four key provision but I will use Section as an example that says goods should be of satisfactory quality meaning they should be up to standard a intelligent individual would consider satisfactory and if the purchaser says the good is being purchased for a distinct reason, there is an implied terms the products are suitable for the intended purpose. www.tutor2u/net (b) Terms implied by law courts an example is if the courts held that landlords of blocks of flat should keep the communal areas including lifts, stairs etc. in a reasonable state of repairs so that the term was implied into the rent contract. an example case is Liverpool City Council v Irwin (1977) AC 236 HL Innominate term this when the parties involved fail to classify the commitments in the contract, the court will hold that they are unattested and go through the ex-post consequence of breach test.The judgement given will depend on the magnitude of the breach. Case of Hong Kong Fir Shipping v Kawasaki Kaisen Kaisha (1962) 2 QB 26 refers. Condition is a paramount term of the contract that goes deeply into the contract. For example if a proviso is contravened the guiltless party is entitled to renounce the contract and claim stipends. In the matter of Poussard v Spiers (1876) 1 QBD 410. Madame Poussard entered into contract to perform as an op era singer for trio months. She was ill five days before the open night and unable to perform for four days, held that she breached condition and that Spiers were entitled to end the contract. Warranties are minor terms of a contract which are not telephone exchange to the existence of the contract. If a imprimatur is breached the innocent party may claim damages but cannot end the contract.Bettini v Gye (1876) QBD 183.Trader puff is an expression of caricature made by a sales person or found in advertisement that concerned the goods offered for sale. It represents opinions instead of facts and is usually not considered a legally binding promise. exemplar of trader puff this is in good shape and your wife will love this car Representation Term is used in reference to any expressed or implied statement made by one of the parties to a contract in the course of negotiation to another regarding a particular fact or circumstances that influence the consummation of the deal and if not honoured the innocent party may bring an action for misrepresentation. (There are three types of misrepresentation as follows Innocent, fraudulent and indifferent misrepresentations (e-law resources)Learning Outcome 2Mini-case AThe case above is an expressive term Bi-lateral case one involving Fiona and her uncle which involves offer and acceptance. Uncle Arnold was the offerer and Fiona the offree. The offer here was 15,000. The main element of this case was that of acceptance. The agreement failed due to non-acceptance and time as consideration because the uncle said fairly quickly with a third party involved I have already had a good offer from my colleague so the following is to be considered when giving the verdict Term Offer 15,000 and Acceptance by Fiona, Bi-lateral, both written and expressive Consideration Time fairly quicklyThird Party involved with part offer (Privity) point though no clear straight form of acceptance occurred it is button up a legal binding agre ement but in this case Fiona cannot claim compensation for breach of agreement because it failed due to her delay and sloppiness in not responding in time. Therefore, if Fiona decides to go to court her case is not substantial enough to award her for damages. However, under vicarious liability Fiona can make a claim in court if she wishes. An example is Harvey v Facey (1893) AC 552 Privy Council. This was a case between Harvey and Facey in which correspondences were exchanged regarding sales of bumper Hall write asking for the sale of the property. (This was a distance offer as it was done through telegram).When Harvey asked Will you sell us BumperHall Pen?. Facey responded Lowest price for the Bumper Hall Pen 900 to which Harvey responded We agree to purchase Bumper Hall Pen for 900 asked by you. Please forward your title deed so that we may get early possession. Unknown to Harvey Facey was already negotiating with Kingston Council. The transaction failed and Harvey sued Facey. T he issue in this case is was that there was no clear offer from Facey to sell the property to Harvey so the Privy Council ruled that An offer cannot be implied by writing. It can only be concrete and sound. The appellant Harvey cannot imply that Facey made an offer when he did not (www.casebriefsummary.com) Mini case BThis is a distance, face-to face executed consideration and unilateral case involving offer of intention made by Mrs smith open to everyone so no need for acceptance in this instance. The offer here is the reward of 10 if her lost cat is found which did not involve transport monetary value. Mrs Smith refusal to David 25 which include cost of transportation is valid and justified as payment for transportation was not included in the advert so therefore David has no case and could not claim for compensation if he goes to court. See Leonard v PepsiCo. PepsiCo placed a superfluous television advert stating Pepsi points if Pepsi was drank highlighting a young person arrivi ng at school in Harriet jet and mentioned that the Harrier jet was for 7,000,000 Pepsi points. Leonard attempted to collect the Harrier jet by forwarding 15 Pepsi points accompanied with a cheque for $700,000.00 in order to obtain the Harrier jet. PepsiCo refused the delivery of the Harrier jet. Leonard lost the case because advertisement was not an offer. Mini-case CMrs Harris, the owner of three rented houses in Extown, asks her next-door neighbour, Ted, to collect rent from the tenants for her while she is abroad on business. Ted collects the rents and when Mrs Harris returns, she says to him, Ill give you 50 for your work. Later Mrs Harris refuses to pay Ted. Here is a bi-lateral verbal, expressive offer and acceptance case between Mrs Harris and Ted. The main contract element issue here is consideration because the act has already been performed by Ted before the agreement was met. Even with no binding agreement, the rule of consideration applies in this case because considerat ion can never be past or post, therefore in this case, Ted can sue Mrs Harris for consideration and breach of Contractfor his claims. For example see the case of Labriola v Pollard Group, Inc. (2004) Mini-case DThe above is an offer and acceptance bi-lateral expressive written contract case between Lynx Cars Ltd and Roadstar Ltd though the agreement is not legal binding. The offeror is Lynx Cars Ltd whilst the offeree is Roadstar Ltd. The contract term as stated here are the quantity of cars (2000), time limit of five years with no financial hurt incurred. Roadstar Ltd was informed in good time of just four weeks cancellation into the agreement. My verdict is that for Roadstar Ltd to make a claim the agreement must be legally binding which is missing in this case. Therefore Roadstar can withdraw from the agreement but cannot make any claims for compensation because of reasons given above. Mini-case EThe above case was initially a unilateral case because it was advertised and opened to all but after the agreement was signed between Slick Cars and capital of Minnesota it became Bi-lateral. The agreement was also an expressive one with contract term of conditions, warranty and trade puffs met. However if in the future something goes wrong with the car, Paul is not entitled too claims because all the sales conditions were met as of the time of purchase. Also if the car was discovered to have been stolen, Slick Cars Ltd and not Paul will be liable for prosecution. The warranty on the car includes the refund of road tax payment and an implied term of buying a car from their hundreds of cars.All the conditions regarding the sales of the car have been met bargain including the traders puff. My advice to Paul is to go ahead and buy the car as he has no liability regarding the car even if the car was to be a stolen one. However if the Trade puff does not represent what the advert says, or any of the condition is missing, Paul has the right to terminate the agreement hi s money will be refunded but will not be entitled to any compensation. However if the Trade puff defaults and Paul has evidence to support it, Paul can sue for compensation. Verdict Paul to buy the car but he should bear in mind that the warranty cannot end the contract but again, he could be compensated. Carlill v Carbolic Smoke Ball Company (1891) case refers. Mini-case FThe above is a clear case of tort sloppiness and breach duty of palm. Negligence failure on Duty of Care on both the part of the Council and the Leisure Centre. The Councils placard was partially obscured so not visible to Jim and his wife, also the Council should have cut the overgrown shrubs failure to do this is maintenance negligence as this accident could have been prevented in addition Jims car damaged by the Council van is a health is an implied term and rubber eraser issue for which the Council is liable. The Leisure Centre on the other hand did not show any Duty of Care when the accident happened and therefore liable to pay for injuries and other related costs. In good deal of the above, it is my considered advice that Jim and his wife get compensated. See Blake v Galloway (2004) CAQ. 3.1Tort is a civil wrong committed against an individual and originated from the Latin word tortum meaning perverse wrong and also conceded in court law as arguments for a legal action that can be resolved through compensations. See, e.g. Smith v. united States, 507 U.S. 197 (1993). This is a case involving the of a husband who got killed whilst working for a private firm under contract to a Federal Agency in Antarctica a region with no recognised government and without civil tort law and the wife sued The United States under the Federal Tort Claims Act (FTCA) for wrongful final stage in action.The case was dismissed by the District court for lack of jurisdiction because Mrs Smiths case was stopped by FTCAs contrasted country exception policy that states that the statutes waiver of sovereignty immunity does not apply, however, the Court of Appeals affirmed. (https//supreme.justia.com/cases/federal/us/507/179/case.html) The principal reason for tort law is ensuring compensation is given for the injuries sustained and to prevent others from committing the same traumas. Inclusive of the types of injuries the wound party may recover are loss of salaries fitness, pain hardship, and rational medical costs. These are inclusive of both present and future expected losses. Tort could be in form of trespass, assault, battery, negligence, products liability, and intentional infliction of emotional distress Torts are classified into three categories as followsIntentional torts These are intentional acts that are rationally and foreseeably done to injure another person. Intentional torts are unethical behaviours the suspect knew or should have known could transpire as a result of their actions or inactions, an example is to intentionally hit a person. Case of Broome v Perkins 198 7 Crime LR 271 refers. The appellant was diabetic and drove in an unsafe manner whilst suffering from hypo-glycaemia, a low blood sugar level caused by an surplus of insulin in the bloodstream. His claim of non-insane automatism failed because of evidence that he had exercised conscious control over his car by veering away from other vehicles so as to repeal a collision and braking.His was found guilty for driving without undue keeping and attention Negligent torts are the most common tort used to cast behaviour that constitute unreasonable risks to harm to a person or property or where the suspects actions were irrationally precarious. Vaughan v Menlove (1837) 3 Bing NC 467 in this case the defendants haystack caught fire because of poor ventilation. The defendant had been warned several times that the haystack could cause fire but he contended he had used his acumen and did not anticipate a risk of fire. The court held his logic was inadequate. He was adjudged by the standard of a reasonable man. (www.e-lawresources.co.uk) However, it pertinent to mention that not all wrongful act is a tort. In order for a tort to be constituted the following must exist both wrongful act is not a tort. To constitute a tort,There must be an inordinate action carried out an individual person The unjustified action must be serious in nature to have given warranted a judicial relief and Such judicial relief should be in the manner of an action for un-established injuries.Strict liability torts are when a person places another in danger in the absence of negligence because he possessed weapon, animal or product and it is not compulsory for the plaintiff to prove negligence meaning mens rea. http//education-portal.com See Sweet v Parsley 1970 HL This is a case involving a landlady who lets rooms to tenants however she kept a room for herself and visits once in a while to collect her letters and the rent. In her absence the house was raided by the police and cannabis found. S he wasfound guilty under s5 of the Dangerous Drugs Act 1965 (now replaced), of being concerned in the management of premise used for the smoking of cannabis. She appealed and claimed no understanding of the situation and could not be expected to rationally have acquired such understanding.Her conviction was revoked by The House of Lords, due to lack of proof that she purposely rented her house to be used for drug-taking, since the statute in question created a serious, or truly criminal offence, the judgement convicting her would have grave consequences for the landlady who is the defendant. Lord Reid stated that a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more disgraceful the offence the greater the stigma. Lord Reid in furtherance pointed out that it was inappropriate to levy her for total liability for this type of computer error because the people who were in charge for renting properties are not likely to have anticipate d everything that their tenants were doing. It is imperative to mention that there are both similarities and differences in torts. Similarities between tort and contract lawsThe above two laws share the same similarities in that they are both civil wrong. In tort the injured person will claim damages with a classical example of Donoghue v Stevenson (1932) whilst in contract the injured person will sue for compensation an example is the case of Dunlop Pneumatic Tyre Co. Limited v New Garage & Motor Co Limited (1915) A C 79. In both tort and contract violations monetary rewards or any payment that will atone for the losses Differences between tort and contract laws are shown in the table below Tort LawContract LawNo relationship with the claimant, could be total strangerClaimants could be known to each other and parties to the contract react not necessary liability is warranted by one individual against another admiting parties are involvedTort is punitiveContracts is positive, creat ive situationsTort is used to claim compensation by the injured partyContract involves two or more partiesIn tort damages are imposed by court or negotiatedIn Contract compensations are awarded as stipulated in the contractual agreement Tort law is not codifiedContract law is codifiedTort law safeguards right in rem available against everyoneIt protects rights in personam meaning against a particular person change are un-liquidatedDamages are liquidatedSource http//www.acadmia.eduQ. 3.2Negligence is the failure to take reasonable care or exercise the required amount of care to preventing harming others. An example is where an accident occurs that injured another person or cause damage to the car because the driver was driving erratically, the driver could be sued for negligence. http//www.thismatter.com Negligence in behaviour and duty usually have a disastrous effect on individuals and the society as whole, and in order to protect the society from these dangerous acts, legal steps are taken such as included in the elements of negligence. Consequently, elements of negligence as explained below Duty of Care is the statutory obligation made mandatory on every rational human being of sound mind to exercise a level of care towards an individual, as reasonably in all the situations, so as to avoid crack to other fellow human being from being or damage his or her property. An example is the celebrated case of Donoghue v Stevenson (1932) in which the claimant drank ginger beer bought by her friend containing a dead snail causing her harm .This case brought about the neighbour principle test and according to Lord Atkin Reasonable care must be taken to avoid acts or omission which one can reasonably foresee to injure ones neighbour and this brought about the question Who then in law is my neighbour? Neighbours are those individuals who will be almost and directly affected by ones act This case led to the Neighbours principle. Duty of care is therefore based on the r elationship of different parties involved, negligent act or omission and the reasonable foreseeability of loss to that person http//.www.carewatch.blogspot.co.uk. The loss here may arise as a result of misfeasance or nonfeasance and may also cause pureeconomic loss as I the case of Ultramares Corporation v Touche (1931) and psychiatrist damage or nervous shock. Case of Alcock v Chief police constable of South Yorkshire Police (1991) refers In order to establish a Care of duty, the listed bullet points below also known as the tripartite contained in negligence must be met The element must be reasonably be foreseeableThere must be a relationship between the claimant and the defendant It must be fair, just and reasonable in such environment or situation for a duty of care to be sanctioned. Example is the matter of Caparo v Dickman (1990) HL a case involving auditors certifying false account for the company. (www.sixthformlaw.info) Breach of Duty is where the defendant fails to meet the standard of care as stipulated by law and to confirm if the defendant owed the plaintiff any moral or obligatory duty. However the defendant is not enforced to have any contractual liability with the plaintiff. The responsibility can be moral or legitimate. Example is the case of Willsher v Essex Area Health Authority (1988) 1 AC 1074 in which a premature babe was given overdose of oxygen by a junior doctor that affected the babys retina and made him blind. The case was affirmed as the defendant was in breach of duty (www.e-lawresource.co.uk) Psychiatric Injury This arises from sudden assault on the nervous formation (www.lawteacher.net) and until recently was uncertain in tort of negligence.For claimants to make claims regarding psychiatric injury he or she must be able to prove that the injury was genuine. However emotions of grief or sorrow are not enough to cause psychiatric injury Hinz v Berry (1970) 2 QB 40 The Hinz family went out for a day trip when a jaguar driven by Berr y ran into the Hinzs car killing the Mr Hinz and injuring the children. Mrs Hinz witnessed the incident and became depressed but her claim was jilted by the Court of Appeal. Factual Causation This is the process where it must be proved reasonably in the law that the defendants action led to damage. This in some cases, applying but for test in most cases resolve the disputed torts law cases but if it was proved, the fact must go hand in hand with the other elements, in order to make the case valid and if established, then the defendant is said to be liable to damages.The case of Barnet v Chelsea & Kensington Hospital Management Committee (1969) in which a Mr Barnett went to hospital and complained of stomach pains and vomiting, he was attended to by a nurse whoinformed the doctor on duty. The doctor told the nurse to send him home and visit his GP in the morning. Mr Barnet passed away five hours later due to arsenic poisoning. Even if the doctor had examined Mr Barnett at the time h e visited the hospital there was nothing he could have done to save him. The hospital was found not liable but this case introduced the but for test that is, the hospital was not negligent for the death of Mr Barnett. Bermingham. (2005). However, there is no need to prove negligence has a certain pattern or order. The elements are principally the determine rules in assessing whether a certain case is a case of negligence or not.Damages This is the sum of money a plaintiff gets awarded in a lawsuit. There are various types of damages such as Special damages caused by the injury received inclusive of medical and hospital bills, ambulance charges, loss of wages, property repair or replacement costs or loss of money due on a contract. public damages is a result of the other partys actions, however, they are subjective both in nature and in determining the value of damages. These include pain and suffering, future problems and crippling effect of an injury, loss of ability to perform va rious acts, shortening of life span, mental anguish, and loss of companionship, loss of reputation in a libel suit, humiliation from scars, loss of anticipated business and other harm. Exemplary (Punitive) damages This is the combination of punishment and the setting of unexclusive example.Exemplary damages may be awarded when the defendant acted in a malicious, violent, oppressive, fraudulent, wanton or grossly reckless way in causing the special and general damages to the plaintiff. On occasion punitive damages can be greater than the actual damages, for example, in a sexual harassment case or fraudulent schemes, though these damages are often requested for, they are rarely granted. Nominal damages These are damages awarded when the actual harm is minor and an award is necessitated under the circumstances. The most famous case was when Winston Churchill was awarded a shilling (about 25 cents) against author Louis Adamic, who wrote that the British Prime Minister had been drunk at a dinner at the White House. The Times. (1947) Liquidated damages are damages pre-set by the parties in a contract to be awarded in case one party defaults as in breach of contract. The case of Dunlop Pneumatic Tyre Company v New Garage & Motor co (1915) AC 70 refers.Defences forNegligence This is where the defendant tries to introduce evidence that he did not cause the plaintiffs damage or injury. (www.injury.findlaw.com) There are several defense mechanisms gettable to negligence claims such as Violenti non fit injuria This is a Latin phrase which means for a willing person, there is no harm and used in civil cases as a defence especially when the claimant voluntarily assented to start legal risk of harm at his own peril. In the case of Smith v Baker (1891) AC 325. The plaintiff was employed by the defendants on a railway construction site and during the course of his work rocks were moved over his head by a crane. It was known to both the plaintiff and his employers that there a risk possibility of a stone falling on him and had foregoing complained to his employer about the risk A stone fell and injured him and he sued his employers for negligence.His employer pleaded violenti non fit injuria and declined by the court because although the plaintiff knew about the risk and continued to work but no evidence shown that he voluntarily undertook to run the risk of injury, but his continuance to work did not indicate volens (his consent). Contributory negligence This defence applies where the damage suffered by was caused part both by the claimant and the defendant. Here the defendant must prove that the claimant failed to take reasonable care for his own safety and this caused the damage. This was enacted in the Law Reform Contributory Negligence Act 1945 according to Cracknell (2001) that (1) Where any person suffers damage as the result is partly of his own fault and partly of the fault of any other person or persons, a claim in respect in respect of the damage shall not be defeated by by reasons of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such consummation as the court thinks just and equitable having regard to the claimants share in the responsibility of the damage so, if contributory negligence is confirmed the claimant would be awarded the cost proportional to his own fault of the damage.For example if the claimant was entitled to 20,000.00 (Twenty thousand Pounds and he was responsible for 25 per cent of the damage, the claimant would be awarded 15,000.00 (Fifteen thousand Pounds only). However, sometimes contributory negligence operates in complete defence as in Common law where the court found the claimant to be partially blame for their injuries they might receive nothing. In the case of Butterfield v Forrester (1809) 11 East 60the plaintiff was injured when rode his horse erratically and ran into a post obstruction negligently left on the road by the defendant near his house with the intentions of carrying out repairs. A witness confirmed the plaintiff (Butterfield) was riding dangerously and could not avoid the post. The witness further testified that if the plaintiff was not riding dangerously he would have seen the post and the accident would have been avoided. The plaintiff was found guilty of contributory negligence and received nothing. Froom v Butcher (1976) QB 286. The driver of a car did not use the safety belt and was seriously injured in the accident with the defendants car as a result of the defendants negligence. The injuries sustained by the driver would not have been that serious if he wore the ride belt. His damages were reduced by 20 per cent by the Court of Appeal.This accident resulted in the introduction of not wearing safety belt as a criminal offence. Statutory or Common Law Justification In certain situation a person may have a worthy defence to a tort action if he has valid evidence that his actions are covered by statutory rule and applicable law or legislation. A good example is the Police and Criminal Evidence Act 1968 distinctly setting out the power of Police to arrest, stop and search and entry. If these powers are used fairly and responsibly, the Act will yield a good defence to a tort action. Self-defence might possibly be a good justification in common law for tortious actions as in the case of R v Gladstone Williams (1984) 78 Cr. App. R. 276. Ex turpli causa non oritur actio (Illegality) This is coined from Latin to mean of an illegal act there can be no lawsuit (www.legal-glossary.com) In the case of Vellino v Chief Constable of Greater Manchester (2002) 1 WLR 218 Court of Appeal Vellino was a regular offender with history of convictions. He was arrested and as usual tried to jump from the second beautify window and got himself injured seriously.The Police were aware of his several attempts in the past and knew this to be dangerous but did nothing to stop him from esc aping. In his attempt to bunk from the second floor he injured himself and suffered fractured skull resulting in brain damage and quadriplegia also known as tetraplegia, a paralysis caused by the injury he sustained making completely dependent on people for support. Vellino sued the Police and claimed they owe him duty of care to prevent him from injuring himself which the Police denied and in their defence raised(a) ex turpi causa that it was a criminaloffence for an arrested person to attempt to escape. The claimants appeal was dismissed. Consent Is a full defence raised in civil cases especially when a defendant is sued for civil litigation for committing an intentional tort. . It is also referred to as assumption of risk and it plays an important role in law. In common law consent is regarded as a necessary ingredient for creating a binding contractual bargain.In addition Consent is very closely linked with volenti non fit injuria. Below are the types of Consent Express Consen t Is when the defendant agreed to willingly submit to plaintiffs action. For example, Tom willingly takes part in a tackle football game and Henry tackled Tom, Tom suffers a knee injury. Henry is not liable because Tom manifestly consented by agreeing to take part in the game. Implied Consent is deduced from plaintiffs conduct. (OBrien v Cunard S. S. Co., 28 N. E. 266 (1891) Plaintiff was a passenger abroad on one of the Defendants ships. She was vaccinated whilst on the ship and suffered complication resulting in injury. She sued for assault and injury. Her case was dismissed on the grounds that she did not object when the defendants doctor indicated he wants to vaccinate her.Informed Consent This is an individuals agreement to allow something to occur made with full knowledge of the risks involved and other options to his chosen course of action. However, consent by the plaintiff does not authorise the defendant to do whatever he wishes to the plaintiff because of the contact tha t the defendant made with the plaintiff should not go beyond what the plaintiff consented to. For example, if I visited my Dentist to remove a rotten tooth and in the process he observe a tumour and removed it without my consent. I could sue my GP for assault and injury because I did not consent to him to remove the tumour I only consented to him to remove my rotten tooth. (1) Consent will be void if it is obtained by trickery or by fraudulent means. Bartell v. State 82 N.W. 142 (Wis. 1900). Case refers.(2) Consent will be void if it is given under duress or threats of physical force.(3) Consent will also be void if it was given as a result of a mistake and the mistake was(a) Caused by the defendant, or(b) The defendant was aware of the mistake and he did not alert the plaintiff.Necessity It is an approving defence that is raised when a tortious act is committed by an individual, for the prevention of greater harm or injury from occurring to the community, defendant or defendants property. Regina v Dudley & Stephen (1884) 14 QBD 273 DC. In this case, Dudley and Stephen the defendants and Brooms were ship wrecked with Parker, a fellow young seaman. They have been without food and water for almost three weeks. The defendants killed Parker to provide food for themselves to save them from starvation but Brooms dissented. They were found guilty of murder (www.casebriefs.com) Q. 3.3Vicarious liability is one which on one individual as a result of an action of another. Rutherford and Bone. (1993). For example, is the liability of an employer for the acts and omission of his employees. It can be regarded as strict liability due to the defendant not being at fault. The most popular vicarious liability is when the employee otherwise the tortfeasor commits a tort while in his employers employment, the employer is held liable and this due to the doctrine of respondeat superb a Latin phrase meaning let the master answer . For a court to establish if an employee acted wh ilst in employment the following must be confirmed if Did the action happen whilst the employee is at work and during working hours? Did the employer employ the employer when the incident occurred? Was the injury due to the actions of the employee in the role the employed was hired? Example is the case of Mattis v Pollock (t/a Flamingos Nightclub) (2003) EWCA Civ 887 The bouncer was employed by Flamingo night club and in the course of performing his duty he got into a fight with one the customers and stabbed the customer.His employer were held liable for the injuries caused to the customer. Other case example is Other was in which a business can be liable in vicarious manner is when the employee acted in an unauthorised ways whilst performing the contractual duties, or when the employee acted against his employers instruction, or if the employee commits fraud andacted against his work boundaries. In all the above, the employer is still liable vicariously. Examples of different cases are enumerated below In the case of Century Insurance Co. Road Transport Board (1942) AC 509 HL and Limpus v. capital of the United Kingdom General Omnibus Co (1862). The driver o a petrol tanker was in employment whilst transferring petrol into and underground storage tank. He struck a match to light a cigarette resulted in explosion that caused a lot of damage. It was held negligent the driver was negligent in carrying out his duties and his employer was found negligent. Limpus v. London General Omnibus Co. (1862) in this case the driver was speeding to collect passengers and purposely obstructed the driver of a rival company and overturned the latter(prenominal)s bus despite that the bus driver had been warned strictly not to cause obstruction.His employer LGOC was found liable Employee committing a fraud whilst in employment is illustrated in the case of Lloyd v Grace, Smith and Co. 1912 in this case the plaintiff wants to sell some cottages and went to the solicitors. The mana ging clerk of Lloyd conned the plaintiff to transfer the cottages to him and embezzled part of the mortgage money. Lloyd was sued by the employee and they were found liable for the fraud committed by the clerk even though it was only the clerk who benefited from the fraud. Control Test The control test was the skipper test that has its origin in master and servant law and it also explore who has dominance over the way work is carried out the work. This test was apply in Mersey dock and Harbour Boards v Coggins and Griffiths Ltd (1946) Mersey Dock was in charge of training and for providing crane operator to organizations. Mersey contracted one of his operators to Stevedore Company and caused injuries through his negligent in operating of the crane. Mersey Dock was found liable as it was assumed the crane operator was in their employment as a contractor.Finally, the Employees criminal behaviour is one of the positive factors of how a business can be vicariously liable because if wh ilst in employment commits any criminal action his employer is liable vicariously the case of Heasemans v Clarity Cleaning (1987) Court of Appeal where the defendant employed an office cleaner who in the course of her duty used the plaintiffs telephone for international calls. The appeal of the contactor was successful as it was held that was not vicariously liable for his employees act Health and asylum Act 1974 It is also referred to as HSWA or HASAWA is the main pieceof law or legislation that covers occupational health and safety at work and gives large duties on employers to ensure in a reasonable practical manner the health, safety and welfare at work of all employees, likewise it also expect some degree of responsibilities from employees. Source (http//www.hse.gov.uk/legislation/hswa.htm)The main purpose of this Act is to ensureThe security, of health and safety as well as the welfare of individuals at work To protect individuals against risk to health and or safety in rela tions to the activities of individuals at work To control and prevent the use of illegally acquired of unsettled dangerous substances. Employers responsibilities includeTo provide and maintain safety equipment and safe systems at work. To ensure hazardous materials used are properly stored, handled, utilised and transported safely To provide supervision, instruction, information, training at work for employees To ensure the control of certain emission into airTo provide a safe working environmentTo provide a written safety policy/risk assessment for employees Look after the health and safety of others such as the members of public. On the other hand, the employees responsibilities include victorious care of their own health and safety and that of others, failure to do this makes the employees liable Must avoid interfering with things provided by the employer in the interest of health and safety Must cooperate with their employersSource (http//www.slideshare.net/ManojRNair/work-bas ed-learning-health-and-safety-act-1974) Finally, it is worth mentioning that there are other several relevant legislations amongst which are Management of Health and Safety at wreak Regulations 1999Fatal Accident Act 1976Limitation Act 1980Law Reform (Contributory Negligence) Act 1945Employers Liability (Compulsory Insurance) Act 1969Employers Liability (Defective Equipment) 1969Civil Procedures Rules (as amended by the Woolf reforms)Sources (www.leeds.ac.uk)In conclusion the above report has critically and chronically been done and analysed to reflect on all the relevant issues affecting Aspects of Contracts and Negligence.Vicarious Liability. 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