Aspects of Contract and Negligence for Business - Essay Example

? Aspects of Contract and Negligence For Business Liability Tort According to Bergelson (2009, p. 57), tort liability is a situation where a person is lawfully held responsible to a casualty due to civil mistake. This liability occurs where the party breaches the rights of the party and contravention of the communal duty hence causing injury to other person or persons. The case is charged in the court in order to establish the liable party and assess the damages the wrongdoer is supposed to pay to the wronged party. According to common-law doctrine, employers are held responsible for the mistakes or carelessness of their workers (Engel & Mccann 2009, P.234). Under the contract law, the parties to the agreement are directly responsible for their performance or failure to discharge their duties as stipulated in the contract (Engel & Mccann 2009, P.146). Therefore, under contract law, individuals are responsible for failing to accomplish their promises to the other party while in tort liability arises due to commitment of civil wrong or breach of other peoples civil rights. Negligence Liability Under the law of contract, parties to the contract are considered careless where they partially, wrongly or totally fail to discharge their obligations according to the conditions of their agreement (Macqueen & Zimmermann 2006, p.145). For example, if a transporter was hired to ferry some goods belonging to another individual and fails to deliver the goods, then that transporter is liable for not . However, under the law of tort, a person is careless if he or acts wrongly or fails to act where they were required to do so hence causing another person harm. For example, in Vaughan – v – (Menlove 1937) 3 Bing N.C. 468 the defendant was given a warning that the stack he had kept would catch fire, but he said he could manage them (Macqueen & Zimmermann 2006, p.171). However, the stack essentially the stack caught blaze that spread to the neighbour’s farm. The person was held responsible for the damage suffered by his neighbour due to his carelessness. Vicarious liability Vicarious liability refers to responsibility borne by a person for the act or omission committed to a third party by another person with whom the bearer of the responsibility had authority to prevent that other person from committing the tort (Macqueen & Zimmermann 2006, p.159). A business may be vicariously liable for tort committed by their workers to other people during the normal processes of discharging their official duties. For example in the case of Cassidy – v – Minister of Health 919512 K.B.343 where a patient was operated his left arm by the employees of the hospital, but out of the carelessness of the employees, the patient hand sustained permanent damages hence rendering it ineffective (Bergelson 2009, P. 58). The patient sued the hospital, and the hospital was held responsible for their workers’ carelessness. However, in order for the employer to be responsible for their employee’s tort, the employees should have acted under their usual way of discharging their duties and must be under full control of their employers who also pays their salaries. Scenario Tort refers to commission of wrongful act to other people or failure to do right to other people when one has a responsibility to do it, hence causing injury to others whom he owned duty to serve responsibly (Engel & Mccann 2009, P. 149). For a plaintiff to succeed in a legal suit against defendant for tort, he or she has to prove that the defendant was in charge of protecting the act or omission from happening. The plaintiff is also liable to prove to the court that the defendant actually defied his or her responsibility to protect the plaintiff. However, it is not enough that the defendant acted irresponsibly or failed to act as required b the law, but the plaintiff should confirm that it was through defendants conduct they sustained injuries. At times, the conducts of the defendants my cause injury to the plaintiff without defendant committing tort, if the injury as a result of defendant’s conducts could not be predicted with precision before the occurrence of the damage Macqueen & Zimmermann (2006, p. 168). Therefore, it is apparent that for plaintiff to succeed in charge against the defendant for tort, the injury resulting from defendant’s actions must have been predictable at the time of acting. In the scenario Miss Z as the owner and manager of Banzai Health and Fitness Centre ran an extension cable across the floor from the gym and passed it across the door used by client. In this scenario, Miss Z acted carelessly by not putting precaution to warn the clients against possible risk of tripping over the cable. According to Engel & Mccann (2009, P.154), she had a duty of care for all the visitors in the premises and since this was a business where clients are expected to visit any time during business hours, it is apparent that the manager was liable for any injury caused to the clients. The clients who may suffer injury in the premises may sue the manager or the business for the injury caused at their premises (Bergelson 2009, P. 75). Mrs X cannot succeed in her case since there was no injury caused to her by the cable. However, Mrs Y should sue Miss Z because she actually sustained harm due to managers’ carelessness. Since she cannot continue with her contracts, she should recover the earnings she would get from her contracts and any other amount she would probably earn from her work during that time she rested from work. Since there is no proof that she would win the other contracts worth ?2,100 hence she may not succeed in claiming for that amount. According to Macqueen & Zimmermann (2006, p.203), the court may request the business manager to grant an amount it deems appropriate for her according to the nature of her work and hourly rate or average monthly income. Mr W may sue Miss Z for misleading him when he felt pain in his chest and she requested him to continue with the exercise. Since it was her duty to take care of her client’s physical wellness, she acted carelessly to Mr W who after experiencing an unusual pain she encouraged him to continue with the exercise. She convinced him that pain was part of the exercise and this may have made Mr W to believe that the pain was normal in such a situation. In the case of Mr V a paramedic injured by the ladder that fell on his head, he can succeed in suing Miss Z under vicarious liability. This is because the man responsible for centre maintenance was her employee and was under the normal duty when ladder fell and caused injury to Mr V. Since Mr V was on emergency to rescue the life of Mr W, it is apparent that he could not be able to exercise necessary caution and that he feared to slide due to coffee spill on the floor hence he had to pass under ladder to avoid sliding. According to Bergelson (2009, P.84)), the worker acted carelessly by failing to pave way for the emergency rescuers. Therefore, since he was discharging his ordinary duty at the premise, Mr. V can sue Miss Z under vicarious liability since the maintenance man was her employee hence must have been acting under her instructions. She was the one responsible for paying his salary hence he was under her full control (Macqueen & Zimmermann 2006, p.213). Therefore, Miss Z should have requested the maintenance man to take away the ladder from the area during the time paramedics were in the premise attending an emergency issue. STU being the advertising agency had responsibility to invite the exterior decorators to the premise. Similarly PQR as the invitee of the STU had authority to use the lift. However, on that particular day, electric lift defaulted causing power failure that inconvenienced Miss Z. Miss Z may not succeed in a case against STU since they did not act carelessly. Though the agency was responsible for the failure of the power, they acted responsibly since they used electric lift for its usual work. Therefore, Miss Z may not be able to prove that the advertising agency acted carelessly. In the issue where PQR knocked a tin of paint off the lift that feel towards a car parked below the lift, Miss Z can sue PQR for careless action. PQR was responsible for the fall of the tin of paint and that led the owner of the car to deflect the paint to Miss Z’s car by using a briefcase. According to Bergelson (2009,p. 87), PQR may deny the liability under novus actus interveniens by arguing that it was the owner of the car who was directly involved in tort against Miss Z car. Scenario 5 Under vicarious liability, a person is held liable for tort committed by one person against a third person where that person who committed tort was under the control of the bearer of responsibility. In the case where Mr O works as a receptionist though part time in exchange for free use of weight room, he used to sell drugs to sell illegal drugs to other weightlifter and the drugs had effects on the users by causing impotence. However, it appears that Mr O was not discharging his official duty at the time of committing tort hence weightlifters may not succeed in charge against Miss Z. The issue of vicarious liability arises where Mr O is an employee of Miss Z at the time of committing tort. In the situation where Mr O hurt Mr N when preventing him from breaking into his car, Mr N may not succeed in charge against Miss Z under vicarious liability since Mr O did not commit tort while discharging his official duty (Engel & Mccann 2009 p.174). However, the issue of vicarious liability arises by the fact that Mr O is an employee of Miss Z. Mr O was working according to the instructions given by his employer as requested to work overtime. Therefore, his charge against Miss Z for direct tort may succeed since he was a part time hence could be assigned some work during odd time. There is no issue of vicarious liability since the tort was committed by the employer herself. Bibliography Bergelson, V 2009, Victims' Rights and Victims' Wrongs: Comparative Liability in Criminal Law, Stanford University Press Stanford, CA pp. 56-98 Engel, D, M & Mccann, M 2009, Fault Lines: Tort Law as Cultural Practice, Stanford University Press Stanford, CA pp. 123-197 Macqueen, H, L & Zimmermann, R 2006, European Contract Law: Scots and South African Perspectives, Edinburgh University Press, Edinburgh, 111-235 Read More