Tort of Negligence - Assignment Example

 Tort of Negligence In order to establish whether clumsy can claim negligence against you, we will examine the case and will try to see if the tort of negligence applies in this case. We will also examine whether there is any defence available. Tort of Negligence means carelessly causing damage or injury to the other person. You may not have wanted to cause the injury but it happens as a result of certain task performed by you or the non-performance of a task that you needed to perform. There are basically three requirements which need to be fulfilled in order to prove that the defendant was negligent and the injury to the plaintiff was caused as a result of this negligence. Duty of Care – This is the first thing which needs to be proved .Did the defendant owe a duty of care to the plaintiff. As Clumsy was your employee; this relationship falls under the established categories and thus it is clear that a duty of care towards clumsy was present. The pool of water might have been left there by another employee but he was asked to keep the floor clean by you and thus the ultimate responsibility in the hotel to keep your employees safe lies with you.[Rog08] Was the Duty of Care Breached – To establish a breach of duty under the tort of negligence it needs to be proved that the defendant failed to do what a reasonable person would have done in similar circumstances?[Rog08] The failure to exercise required standard of care is regarded as an act of negligence under the law. In this case as the manager of the restaurant it is my duty to ensure that employees have a safe environment to work in which does not causes any injury or harm to them. As water was spilled over the floor, a reasonable person would have kept the floor clean – so there was a breach of duty. Even if water was spilled on the floor – the reasonable thing to do would have been to put up a “Wet Floor” sign in order to warn anyone approaching the area. As neither was the floor kept clean and nor was a warning sign placed; it can be reasonably proved that there was a breach of the duty of care on the part of manager of the restaurant. Damage/ Injury Caused by the Breach of Duty – The plaintiff needs to establish that due to breach of duty of care on the part of the defendant he suffered some sort of damage or injury. This damage or injury would not have been caused if there was no breach of the duty of care. Clumsy who is the plaintiff in this case suffered a broken jaw due to carelessness of the other employee who left a puddle of water on the floor. Thus broken jaw is the injury suffered by him due to the negligence. From the above three points we can easily say that Clumsy has a case against the manager. He can very well prove in a court of law that the hotel had a duty of care toward him. This duty of care was to provide safe working environment. This duty of care was breached when the puddle of water was left on the floor without any warning signs. Due to this negligence he suffered a broken jaw. Now we will examine if the manger of the restaurant has any defence available to him. According to 2 kinds of defences are available to the defendant. Voluntary Assumption of the risk – This means that the plaintiff was fully aware of the risk a voluntary assumed the risk. This defence is not at all available to the manager as clumsy was not aware of the puddle of water. Contributory Negligence – It can be established in some way that the plaintiff contributed in some way to their own injury, liability will be apportioned between you and the plaintiff. In this case Clumsy was drunk on duty. Thus it can be said that he caused damage to himself as being in an inebriated state – he was not able to perform his duty to the fullest and this fell. As an employee he was not supposed to be drunk during the office hours and this was an act of contributory negligence on his part. Thus we have proved that Clumsy has a case of negligence against the manager of the restaurant, however the defence of contributory negligence will lead only to partial liability for the defendant. Issue Irma offered the Taj manager 10% discount for the first time he ordered from her shop. However this discount was not given by the new owner to whom Irma has sold the shop. The question is if there and intention to create legal relations between the manager and Irma. Can the manager of Taj refuse to pay George? Law The parties to the agreement must intend the agreement to be legally enforceable. If there is no intention there is no contract. In deciding about the second requirement the court looks at the conduct of the parties room an objective observer and asks whether the parties were behaving in a way that they intended their agreement to be legally enforceable. Two important rebuttal presumptions are there which the courts take into account when they apply this test.[Rog08] An agreement which was made in social or domestic context; the court presumes that the agreement was not supposed to be legally enforceable. If the agreement was made in business or commercial context the court will presume that the agreement was supposed to be legally enforceable by the two parties.[Rog08] Application It is clear that there was an agreement between the manager and his sister that Irma will provide a 10% discount to the manager of the Taj for the first time he ordered from her shop. This can be clearly seen to be a commercial agreement which was made between them. As the agreement that has been made is purely commercial; it can be said that both parties wanted the agreement between them to be legally enforceable. Although manager and Irma were siblings; it cannot be said that they were making the agreement in a domestic setting. They made the promise to each other not as siblings but in their official capacity. The offer of 10% discount by Irma was made as the owner of the shop. This was accepted by the manager of the Taj and not by her brother. Thus we can safely say that the agreement has not been made in a domestic setting and hence the rebuttal will not work. The agreement between Irma and manager will be considered to have been made such that both of them intended it to be legally enforceable. Now we will consider the second part – Can the manager refuse to pay the full amount. The important point of consideration here is the capacity in which the agreement was made. This agreement was not made in a personal capacity but in the official capacity. Thus I was acting as the manager of the Taj and made the agreement on behalf of Taj; Irma was acting as owner of her shop and thus made the agreement on behalf of her shop. If the shop was now sold to George; all the liabilities and agreements made by Irma also pass on to George who is the new owner. Thus the manager of Taj can refuse to pay the full amount and claim a discount of 10 % as that was the agreement he had with Irma’s shop. Change of ownership is an internal issue of which he is not aware of .Either he should have been informed of the lapse of discount offered by George; failing which the manager is entitled to the discount and refuse to pay the full amount. Conclusion The manager of Taj and Irma did intend to create legal relations when the agreement was done between Irma and the manager. The Taj manager will be able to legally enforce the agreement and can refuse to pay the full amount even if there has been a change of ownership. Work Cited Roger LeRoy Miller, Gaylord A. Jentz (2008). Fundamentals of Business Law: Summarized Cases. 8th ed. Sydney: Cengage Learning. Read More