Law and Contract

Q1. Negligence

Negligence refers to reasonable care, or specifically the failure to demonstrate reasonable care where an assumed duty of care towards another is assumed. A duty of care is assessed by a 3 stage test, devised from case Donoghue v Stevenson. The first element of criteria to be assessed is to look at the relationship between the two parties involved, the second is to consider how foreseeable harm may have been to the person or situation and the last, is to assess whether it’s just and fair to enforce the duty of care on the individual/company.

Donoghue v Stevenson (1932) AC 562 was really the bench mark for creating guidance for assessing negligence upon a person/company. Up until this point Heaven V Pender (1883) 11 QBD 503 where by Master of Rolls, William Brett, 1st Viscount Esher first suggested a wider duty of responsibility to persons who might be injured where ‘ordinary care and skill’ was not exercised, the decision from the house of Lords (Heaven V Pender (1883) 11 QBD 503 ) was that the owner of the property did have a duty of care towards invitees (employees who were only on the land ultimately for the economic benefit of the owner). Later adopted and specified by Lord Atkin in the Donahue v Stevenson (1932) whereby existing laws where too wide concerning negligence; as Mrs Donahue didn’t have a direct link towards the manufacturer as the product was bought by her friend, so there was no contractual agreement between Mrs Donohue and Stevens (the manufacturer). Lord Atkin introducing ‘the neighbour principle’ taking MR William Brett’s intro and specifying it by saying ‘’ the concept of negligence is based upon “a sentiment of moral wrongdoing (for) which the offender must pay.” Not every moral wrong can have a practical effect in law so it must be limited to taking “…reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. ‘‘ The neighbour principle’ is the relationship between parties Lord Atkin said ” A neighbour is a person so closely connected with and directly affected by (proximate to) my act (or omission) that I should have had them in mind when I committed the act (or omission). It would be a grave defect in the law if a consumer could not claim in circumstances such as a manufacturer negligently mixing poison into a drink.” After this case it was seen that the 3 stage test mentioned above must be key in assessing a duty of care to determine negligence. This is tort to determine damages, and each case is seen as different and so must be individually assessed to determine the type of damages involved after negligence has been proven.

http://en.wikipedia.org/wiki/Heaven_v_Pender

http://www.safetyphoto.co.uk/subsite/case%20abcd/donoghue_v_Stevenson.htm

Contributory negligence is a defense in common law used to claim against negligence. Contributory negligence is only awarded if the defendant only contributed to the claimant’s direct injuries. Damages will be partially paid as the defendant was not fully liable for all the injury’s occurred under s1 Law Reform (Contributory Negligence act 1945).

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&PageNumber=0&NavFrom=0&parentActiveTextDocId=1088684&ActiveTextDocId=1088687&filesize=6522

links date: 20th/Mar/2010

Continued

Where a professional is involved the reasonable person involved will be a person/company with the usual level skill for the duty involved as in Bolam v Friern Hospital Management Committee (1957) 2 All ER 118, professional neglect will be seen as a breach of duty. This will be assessed on whether the defendant could reasonably foresee a risk to the claimant as in case Overseas Tank ship UK Ltd v. Mort Docks and Engineering Co Ltd, The Wagon Mound No. 1 (1961) 1 All ER 404. Liability for negligence isn’t just a civil matter, but depends on the circumstances and duty of care assessment to establish the liability involved and specific damages, as sometimes the defendant may not be liable for the claimants injury’s as in Baker v. Willoughby (1969) 3 All ER 1528 or Jobling v. Associated Dairies Ltd (1981) 2 All ER 752.

http://en.wikipedia.org/wiki/Bolam_v_Friern_Hospital_Management_Committee

http://en.wikipedia.org/wiki/Overseas_Tankship_(UK)_Ltd_v_Morts_Dock_and_Engineering_Co_Ltd

links date: 21st/ Mar/2010

Q2. Remedies

In this case a clear contract has been made between both parties and the defendant (Volvo Enterprise Ltd) is clearly in ‘Breach of Contract’ for the delivery of the furnace extractor. The remedies available would be to seek compensatory damages which are paid to compensate a claimant’s for loss, injury and harm suffered as the ‘causation’ is none disputable with this case. Arbitration is an option as the case aspects are obvious and can be settled out of court using the help of a Forensic Account (Recommended for all aspects of remedy) taking into account that all aspects for future contract damages where foreseeable, but if correct sums cannot be agreed on. We can seek to recuperate for ‘Expectation Damages’ or the Quantum/Measure of Damages (breach of contract duty ‘ex contractu’/ breach of contract tort duty ‘Ex delicto’) which are damages recoverable for ‘Breach of Contract’. ‘Expectation Damages’ are recoverable by Incidental and consequential damages (Special Damages) so will provide a means of putting the company in the position it would have been in if the contract had been fulfilled as first agreed (which does give the option to recoup for damages for lost profits). I would recommend that JTC look to recuperate firstly through Arbitration seeking full damages including lost profits accrued previous and after June 1st up until first Alternative Dispute Resolution letter is sent, with possible penalties thereafter. And If a sum cannot be agreed on within a specified date I would advise to pursue with legal proceedings to recuperate for ‘Expectation Damages’ as I feel the case would stand a good chance of success.

http://en.wikipedia.org/wiki/Damages

http://en.wikipedia.org/wiki/Binding_arbitration

http://en.wikipedia.org/wiki/Damages#Breach_of_contract_duty_-_.28ex_contractu.29

http://en.wikipedia.org/wiki/Damages#Quantum.2Fmeasure_of_damages

http://en.wikipedia.org/wiki/Expectation_damages

http://en.wikipedia.org/wiki/Ex_delicto http://en.wikipedia.org/wiki/Ex_contractu

links date: 21st/ Mar/2010

Q3. Law of Obligations

The law of obligations is a branch of civil law, seen as a necessary or must do. It covers Contract Law, Delict Law, Quasi-contract Law and Quasi-delict Law. The law of obligations aims to organize and regulate legal relations between persons under obligation to fore fill a duty under ‘different branches’. Take for example Negotiorum gestio or a form of creation of spontaneous ‘agency’, which is created as a bond or link, the agency (gestio) acts on behalf of the principle who is expectant of the agency to act under professional means. This is a legal obligation, but acting without the persons consent will lead to liability, and even was a recoverable penalty under ancient Roman law.

Modern day law develops more efficiently as specifics become clearer. Obligations will always have to be monitored and reviewed, as breaking cases like Donahue v. Stevenson (1932) for (liability), Shetland Times Ltd. v. Dr. Jonathan Wills and Zetnews Ltd (internet copyright) or Hughes v Lord Advocate (1963) UKHL 8 (Civil issue, involving duty of care). Obligations will always be paramount in the future determination of liability, an obligation is a must, as liability is dependent on duty of care and the duty of care cannot be assessed without set obligations. Obligations are case specific.

I feel that improvements to legal obligations depend on the future of public acceptance of tort and compensation, the UK’s economic climate will be a big factor as the Public v. Bank Charges case 2010 was widely reported by the UK’s media, http://news.bbc.co.uk/1/hi/8376906.stm and http://www.myfinances.co.uk/savings/news//news/bank-accounts/bank-charges/banks-win-unfair-charges-case-$1342773.htm reports like this I think show the future of obligation as; On 27th July 2007 the Office of Fair Trading entered into a court case with seven banks and one building society over the fairness and legality of unarranged overdrafts, the High Courts and Court of Appeal ruled in favour of the public, the banks then asked the house of lords to overturn the decision arguing that charges where part of a free bank account, as abroad bank accounts are not free, the house of lords overturned the decision in favour of the banks.

I think the one million plus people who put in applications for unfair bank charges where correct, the ruling from the High Court & Court of Appeals had an obligation to the public to give a correct decision, I also think the House of Lords had to take into consideration a bigger picture (viable alternatives) when assessing the details of this case. I think the House of Lords almost couldn’t rule in favour of the public taking into consideration the United Kingdom’s recent resection and the banks having to borrow up to 50 billion pounds to sort out their own finances (the payout to the public by court order would have been in excess 2 billion pounds), the obvious risk also was that UK’s ‘free’ Current Accounts would no longer be free. Now where’s the obligation to the public? In free current accounts available for 65 million (taking into consideration the UK resection) or correct compensation to 1 million, based on the House of Lords decision I think the near future of legal obligation will be largely based on the economic climate of the nation. The House of Lords know as well there are still ways for individuals to get their money back.

http://www.jstor.org/pss/1338455

http://www.internetlibrary.com/cases/lib_case194.cfm

http://www.gillhams.com/dictionary/309.cfm

http://www.guardian.co.uk/money/2009/jun/23/banks-charges-appeal

http://www.rbs.co.uk/personal/current-accounts/g4/overdraft-charges.ashx

links date:22nd/Mar/2010