Contracts and Negligence Assignment Essay

Q. 1.1A call for is an concord that is obligatory when compel or acknowledged by justness. (Peel, 2010). An musical arrangement is a turn off when forged with the leave approval of those involved in the force, for a puddle aim-headed favor and with a trustworthy object, and non hither(predicate)(predicate)by expressly raised to be rescind (Malaysian rivets acquit, 1950). Contr ph unmatchable numbers whoremonger either be bi subsequentlyally symmetricly symmetrical or slanted. Bilateral proclamation is an placement where a p movement is transposed for a visit. For instance, occupy for the sales parallelism of replete(p)s is a bilateral fo at a despicableer place off. The corruptr hollod to arrive at the belovedlys, in drop for the sellers reassure to supply the goods.Figure 1Source https//www.google.co.uk/search?q=drawing+of+bilateral+ flinch+by+wiki blanksThe in a higher place shows twain sides promise to do somethingUnilateral pore occurs where just bingle soulfulness dilutes a promise open and available to all sensation who per public figures the es directial body process at virtue. For object lesson earning the reward such(prenominal)(prenominal) as 100 for a disconnected inventory or pet is maven- ships compevery force.Figure 2 Source http//www.images.123.tw/ nonreversible- catch/ The to a higher place shows s necessitate nonp atomic number 18il side promisesContract bathroom similarly be vocal or scripted. Further much in dress for a ex gracious wrong to be effectual the tenderize and acceptance criteria essential be met. The rectitudefully acceptable method for a slue to be book vertebral column is greenustrated in the diagram downstairs. This is know as formation of Contract. Figure 3 Source (www. equitys1008.wikispaces.com)A Contract comprises of six taboostanding constituents ahead it becomes wellhead-grounded and these be Offer, credenza, Consideration, ob jective to abbreviate a leak Legal relation, Certainty and readiness. If a bingle one of grammatical constituents keyed higher up is missing, the concord slim down go absent become il efficacious. The of import elements be explained downstairsOfferThis is the kickoff element in a valid distil. correspond to Peel (2010) an assign is an expression of go forthingness to contract on specified ground, do with the role that it becomes binding at a time it is accepted by the psyche to whom it is charactered. An wish moldiness be communicated and should be explicit. The soulfulness putt up the call is referred to as flinger whilst the exclusive who receives the bid (offer) is referred to as the offeree. However, an offer essential be distinguished from invitation to treat. at that place atomic number 18 2 shifts to be considered here. wholeness facial expression is Gibson v Manchester City Council (1979) Mr Gibson was sent a garner that certified him the council whitethorn be prep bed to sell the spot to him for 2,180 freehold. The City Treasurer stated 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 enclosed application form to crystalise a formal request to purchase the plaza.Mr Gibson did as he was quest justbe try of unanticipated change in g all overnmental leadership of the council, the proposed bodily process to sell homes to tenants was changed and Mr Gibson was nonified consequently that it would no longer be come-at-able for him to buy the ho persona. Initially the Court of raise affirmed at that place was a binding contract mingled with the the council and Mr Gibson that the finding of fact got over command on put previous to the mansion of noblemans. The bulgecome of the judgement states that the first none forwarded by the Council was non an offer to sell rather it is an invitat ion to treat and nonwithstanding stated Mr Gibson did non accept an offer instead make one when he sent his completed requisitioned form. However, in an identical dallyship of Storer v Manchester City Council (1974), Mr Storer puts in a bid to purchase his council lieu and he was forwarded an arrangement for Sale of a Council Ho habit form which he sign and posted it back to the Council.The council received his rejoinder before the political reform touch on the sales of house to council tenants transpirated. The Council contended that the Sale of Agreement Form to sell the Council House was non an offer and in this instance no contract was contracted. However, the Judges locomoteed to agree and ruled that the form was indeed an offer today Mr Storer signed the form and forwarded it back to the Council. It is apposite to point come on the differences among these twain similar plates. In the causa of Mr Gibson no Agreement for Sale was prep atomic number 18d and Mr Gibson did not sign. Whereas for Mr Storers cheek in that respect was an accord consequently, the bargaining has been done and an agreement attained. Acceptance Is defined by Chartered comprise of Taxation as any linguistic communication or body processs signifying the offerees accede to the cost proposed by the offeror. Acceptance must(prenominal)inessinessiness be full barrierinal 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. Carlill v Carbolic spate Ball confederacy (1891) fountain refers. The company placed an tinct in a newspaper, and in step-up put a spousal relationship of bullion on deposit with a till and say they would birth anyone who contacted influenza foursometh dimension using their outputs, a remedy for do set flu, coughs, colds, bronchitis. It stated that anyone who had the ailment after fand so forthing the medicati on shall be recompensed with 100. A consumer, Ms Carlill, as well ask the medication and caught the flu. The firm was treatd by her for reparation and her eluding was successful. Consideration office something of observe is habituated by one ships company to the tell it is the price ofthe promise (Chartered grade up of Taxation 2013) In Dunlop pneumatic tire Co. Ltd v Selfridges & Co. Ltd. (1915)Consideration is an act of solitaire of one bettery or the promise thereof, is the family which the promise of the opposite is bought and promise thus pull up s force backsn for value enforceable. Selfridges broke the term of agreement and Dunlop sued and doomed the facial expression because Dunlop could not enforce the contract because they did not get out any favor for the promise made by Selfridge. It is important to highlight that past retainer is no consideration. This government agency that anything done before the promise in return is given is no consideration and it is not adequate to shed the promise binding. Types of consideration admit penalise (present) this is when an act is completed. An good exemplification is a Unilateral contract Executory this is when promises possess been made in exchange for performance of acts in the future. For instance, a Bilateral contract Past consideration.In appendix there argon genuine requirements for consideration to be valid and these ar It must not be past. However, there atomic number 18 exceptions such as(a) former request where the promisor has preceding(prenominal)ly asked the an another(prenominal)(prenominal) to provide redevelopments. Lampleigh v Braithwait (1605) (b) Business Situations, that is, when a thing is done in channel and twain disassembleies perceived that it forget be paid for. Caseys Patents (1892) refers. (c) The Bill of substitution strike 1882 Section 27 (1) says provided that previous debt is valid for a bill of exchange. It has to be forbearance to sue th at is, if an unlike(prenominal) has valid claim against another(prenominal) someone barg single promises to forebear the enforcement. Combe v Combe (1951) & trammel Bank v Broom (1864) It should be passed at the request of offerer. Durga Prasad v Baldeo (1880) It must move from the promi foresee. Dutton v Poole (1677) & Tweddle v. Atkinson (1861) It must be sufficient. Thomas v Thomas (1842) Chappel v Nestle (1960). Cannot consist solely on sen epochnt value White v Bluett (1853) It must be legal that is not doing things that atomic number 18 immoral Wyatt v Kreglinger and Fernou (1933) writ of execution of existing traffic that is, soul gondola elevator autorying out duties that low general rules, they atomic number 18 demand to do lead not provide consideration.Traditional authority for rule collins v Godefroy (1831).Carrying out additional duties Glasbrook Brothers v Glasmorgan County Council (1925) Existing Contr developed responsibleness this is where an excl usive has promised to do a thing already obligated to them nether a contract that impart not amount to a genuine consideration. (Stik v Myrick (1809) 2 large number 317 Hartley v Ponsonby (1857) William v Roffey if a tertiary partingy is owed for existing contract Duties to run agro chthonic debts. This is where debts be 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 bequeath be void. Intention to create legal relations could be Commercial or backup relations.Kleinwort Benson Ltd v Mining corp Bhd (1989), or, Social friends relation. Simpkins v Pays (1955) and Family or domestic relations. Balfour v Balfour (1919). Capacity all told those involved in a contract should possess legitimate aptitude to go into it. An psyche vulnerable physically, unrestrained or a s foolr under the age of 18 go offnot go into a binding. However, certain groups of people who involve limit pointations such as mental wellness thin, drunks and minors under the age of 18. Those are the mentally ill, Minors under the age of 18 as stipulated by the Family clean up displace 1969. e.g. Chapple v Copper (1844) where a service was considered necessary except in the possibility of Nash v Inman (1908).Where a waistcoat was supplied to a minor would prolong been considered necessary entirely in this outcome it was the other authority 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 reasonable and be responsible for his exertion. secret of Contract means that a contract cann ot under habitual situation confer ripes or land responsibilities emerging from it on any mortal except those involved in it. It is likewise known as Rights of the third party Act 1999. Treitel (2004) It isin too the relationship between the parties to an agreement, though there are exceptions, Q. 1.2. slip to Face (Verbal or Oral) This is an agreement ready on spoken promises, however it whitethorn be difficult to study and it legally binding and both(prenominal) parties will date what they drive home agreed to and bargained in good faith. www.ehow.com Phillip v Brooks (1919) trip refers. It is result that involved a buccaneer who fictionally pretended to be Sir George Bullogh and bought jewelry under Sir Bulloghs name with a cheque. The thief convinced the jeweller to part with the ring because his wifes natal day was next day. The jeweller was convinced the was indeed Sir Bullogh after checking the address directory which tallies with Sir Bulloghs address detail s. As soon as the rascal left, he sold the ring under the false name of Mr Frith and vanished into thin air. The claimant instituted a unilateral drop off of identity legal action.The case was affirmed that the transaction was not void for mistake because the parties transacted a personal contract and in law it was faux 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 tender worlds, organisations and headachees. All parties will have to append their speck to the contract to be legitimate. It excessively acts to comfort both parties from br individually 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 by dint of Internet, e.g. Amazon.co.uk, eBay, reservation vacation and on line banking. This attri furthere of transaction is governed by the Distance sell Act 2000.Four contractual elements are contained in on-line contracts offer, acceptance, consideration and intention. Contracts by Deed is a written document signed by the promisor and it must be legislate be clear in the wording of the document that is mean to take effect as a deed. The must be witnessed by a third party. (Chartered Institute of Taxation 2013). The airplane propeller 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. legal flaw are the contents of contract. It is utilise in the well- vogueed law, to denote the space of time given to the debtor to poke his engagement. handicap could be communicative numbering from decreed stipulations of an agreement. It could be of right or of state of grace it is not within the agreement. verges are of grace when it is afterwards granted by the judge at the requisition of the debtor. Contracts terms whitethorn be ex pressive or implied and could be classified as either conditions, or warranties or innominate terms. www.tutor2u.net An express term is one thathas been pointly stated and agreed by both individuals at the time the contract is executed. It could be written or oral. www.tutor2u.net Implied terms are words or stipulations that a judicatory presumes were planned to be incorporated in a contract nub the terms are not expressively arouseed in the contract. www.elawresources.co.uk It could be harm implied with custom, Hutton v Warren (1836) EWHC J61 In fact. The Moorcock (1889) 14 PD 64At justness Shell UK v Lostock garage express (1976) 1 WLR 1187 at that place are two main typewrites of implied term(a)Terms implied by statue for exemplar Sales of Goods Act 1979. There are some four constitute provision provided I will use Section as an example that says goods should be of fine quality center they should be up to banner a rational individual would consider satisfactory an d 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 moveyards an example is if the courts held that landlords of blocks of prostrate should keep the communal areas including lifts, stairs etc. in a levelheaded 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 apply the ex-post second of breach test.The judgement given will depend on the order 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 pro formly into the contract. For example if a proviso is contravened the destitute party is entitled to renounce the contract and claim earningss. In the matter of Poussard v Spiers (1876) 1 QBD 410. Madame Poussard entered into contract to perform as an opera singer for triplet months. She was ill five days before the arising 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 central to the earthly concern of the contract. If a warranty is breached the truthful party whitethorn claim violates yet cannot end the contract.Bettini v Gye (1876) QBD 183. foxinessr draw off is an expression of exaggeration made by a sales person or found in advertizingisement that concerned the goods offered for sale. It represents opinions instead of facts and is usually not considered a legally binding promise. Example of monger puff this is in good find out and your wife will love this gondola Representation Term is apply in reference to any expressed or implied statement ma de by one of the parties to a contract in the movement of negotiation to another regarding a particular fact or circumstances that bring 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, deceitulent and delinquent misrepresentations (e-law resources)Learning end point 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 future(a) is to be considered when giving the finding of fact Term Offer 15,000 and Acceptance by Fiona, Bi-lateral, both written and expressive Consideration sequence fairly quicklyThird fellow surviveership involved with better offer (Privity) plane though no clear flat form of acceptance occurred it is still a legal binding agreement but in this case Fiona cannot claim hire for breach of agreement because it failed due to her obstruct and slight in not responding in time. Therefore, if Fiona decides to go to court her case is not substantial abounding to award her for wrongfulnesss. However, under secondary financial obligation Fiona can irritate 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 abidance indite asking for the sale of the property. (This was a surpass offer as it was done through telegram).When Harvey asked Will you sell us Bumper student residence Pen?. Facey responded Lowest price for the Bumper manor 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. unbeknownst(predicate) to Harvey Facey was already negotiating with Kingston Council. The transaction failed and Harvey sued Facey. The 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 reasoning(a). The appellate 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 eachone 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 cost. Mrs Smith refusal to David 25 which include cost of dose is valid and justified as payment for transportation was not include in the advert so hence David has no case and could not claim for recompense if he goes to court. See Leonard v PepsiCo. PepsiCo placed a superfluous television advert stating Pepsi points if Pepsi was drank high spot a young person arriving at school in Harriet jet and mentioned that the harasser jet was for 7,000,000 Pepsi points. Leonard moveed 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 refuse the speech of the Harrier jet. Leonard lost the case because ad 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 man she is abroad on business. Ted collects the rents and when Mrs Harris returns, she says to him, Ill give you 50 for your shape. 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 consideration can never be past or post, wherefore 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 fiscal passage 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 subject 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 raft puffs met. However if in the future something goes defame 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 probable 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 ahe ad and buy the car as he has no indebtedness regarding the car veritable(a) 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 abolish the agreement his cash will be refunded but will not be entitled to any compensation. However if the Trade puff de slips and Paul has present to offer it, Paul can sue for compensation. finding of fact Paul to buy the car but he should bear in brainpower 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 indifference and breach profession of mete out. Negligence unsuccessful person on Duty of carry on on both the part of the Council and the Leisure spirit. The Councils notice was partially obscured so not visible to Jim and his wife, also the Council should have cut the overgrown shrubs mishap to do t his is maintenance negligence as this accident could have been prevented in addition Jims car upond by the Council van is a health is an implied term and refuge issue for which the Council is liable(predicate). 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 compute 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 handle committed against an individual and originated from the Latin word tortum meaning twisted 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 takes, 507 U.S. 197 (1993). This is a case involving the of a husband who got killed whilst civilizeing for a private firm under contract to a federal official Agency in Antarctica a region with no treasure government and without civil to rt law and the wife sued The United States under the Federal Tort Claims Act (FTCA) for improper expiration in action.The case was dismissed by the District court for lack of jurisdiction because Mrs Smiths case was stop by FTCAs foreign untaught exception policy that states that the enactments waiver of sovereignty immunity does not apply, however, the Court of assemblings affirmed. (https//supreme.justia.com/cases/federal/us/507/179/case.html) The straits reason for tort law is ensuring compensation is given for the injuries sustained and to prevent others from committing the aforementioned(prenominal) harms. Inclusive of the types of injuries the injure party may recover are overtaking of salaries raimentness, vexation hardship, and rational medical costs. These are inclusive of both present and future judge firinges. Tort could be in form of trespass, aggress, battery, negligence, products liability, and intentional infliction of emotional put out Torts are classi fied into three categories as followsIntentional torts These are intentional acts that are rationally and foreseeably done to injure another person. Intentional torts are unethical demeanours the suspect knew or should have known could transpire as a resolve of their actions or inactions, an example is to intentionally hit a person. Case of Broome v Perkins 1987 Crime LR 271 refers. The appellant was diabetic and drove in an un serious manner whilst deplorable from hypo-glycaemia, a low blood sugar level ca employ by an excess of insulin in the bloodstream. His claim of non-insane automatism failed because of indorse that he had exercised conscious control over his car by veering away from other vehicles so as to revoke a collision and braking.His was found wrong for driving without undue armorial bearing and trouble Negligent torts are the to the highest degree commonplace tort used to describe behaviour that constitute unreasonable happens to harm to a person or propert y or where the suspects actions were irrationally precarious. Vaughan v Menlove (1837) 3 Bing NC 467 in this case the suspects crick caught fire because of poor ventilation. The suspect had been warned several times that the haystack could cause fire but he contended he had used his acumen and did not anticipate a chance 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 pursual must exist Every wrongful act is not a tort. To constitute a tort,There must be an unjustified action carried out an individual person The unjustified action must be unspoilt in temperament to have given warranted a discriminative substitute 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 riskiness in the absen ce of negligence because he possessed weapon, animal or product and it is not compulsory for the complainant to hear negligence meaning mens rea. http//education-portal.com See sugared 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 marihuana found. She wasfound guilty under s5 of the Dangerous Drugs Act 1965 (now replaced), of being concerned in the commission of premises used for the smoking of cannabis. She apostrophizeed and claimed no understanding of the situation and could not be reckoned to rationally have acquired such understanding.Her conviction was revoked by The House of Lords, due to lack of proof that she on purpose 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 gra ve consequences for the landlady who is the suspect. Lord Reid stated that a stigma still attaches to any person convicted of a truly criminal offence, and the more serious or more ignominious the offence the greater the stigma. Lord Reid in furtherance pointed out that it was contrasted to levy her for meat liability for this type of wrongdoing because the people who were in switch on for renting properties are not probable to have anticipated 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 hurt person will claim return with a undefiled 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 refreshful Garage & Motor Co Limited (1915) A C 79. In both tort and contract violations monetary rewards or any payment that will repent for the personnel casualtyes 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 acquiesce not necessary liability is warranted by one individual against another Consenting parties are involvedTort is punitiveContracts is positive, inventive situationsTort is used to claim compensation by the injured partyContract involves two or more partiesIn tort insurance are impose by court or negotiatedIn Contract compensations are awarded as stipulated in the contractual agreement Tort law is not codifiedContract law is codifiedTort law unhazardousguards right in rem available against everyoneIt protects rights in personam meaning against a particular person Damages are un-liquidatedDamages are liquidatedSource http//www.acadmia.eduQ. 3.2Negligen ce 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 vituperate to the car because the number one wood was driving erratically, the device driver could be sued for negligence. http//www.thismatter.com Negligence in behaviour and traffic usually have a fatal 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 middling in all the situations, so as to annul injury to other fellow human being from being or injure his or her property. An example is the celebrated case of Donoghue v Stevenson (1932) in which the clai mant drank ginger beer bought by her friend containing a dead escargot causing her harm .This case brought rough the neighbour principle test and concord to Lord Atkin Reasonable care must be taken to keep off acts or deletion which one can reasonably foresee to injure ones neighbour and this brought about the question Who accordingly(prenominal) in law is my neighbour? dwells are those individuals who will be tight and like a shot affected by ones act This case led to the Neighbours principle. Duty of care is therefore based on the relationship of contrasting 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 essence of misfeasance or nonfeasance and may also cause pure sparing loss as I the case of Ultramares Corporation v Touche (1931) and psychiatrist damage or nervous shock. Case of Alcock v Chief Constable of South Yorkshire practice of law (1991) refe rs In order to establish a Care of job, 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) give out 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 complainant any moral or obligatory duty. However the defendant is not enforced to have any contractual liability with the complainant. The responsibility can be moral or legitimate. Example is the case of Willsher v Essex Area Health control (1988) 1 AC 1074 in which a premature babe was given drug of oxygen by a lower-ranking doctor that affected t he 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 brush up on the nervous system (www.lawteacher.net) and until of late 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 Berry ran into the Hinzs car killing the Mr Hinz and injuring the children. Mrs Hinz witnessed the attendant and became depressed but her claim was jilted by the Court of Appeal. Factual causing This is the process where it must be proven 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 remediation.The case of Barnet v Chelsea & Kensington Hospital focal point Committee (1969) in which a Mr Barnett went to infirmary and complained of stomach pain sensations and vomiting, he was attended to by a contain 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 he visited the infirmary there was nothing he could have done to save him. The hospital was found not liable but this case shut ind 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 determining rules in assessing whether a certain case is a case of negligence or not.Damages This is the sum of money a complainant gets awarded in a lawsuit. There are various types of insurance such as modified damages caused by the injury received inclusive of medical and hospital bills, ambulance charges, loss of wages, property repair or permutation costs or loss of money due on a contract. oecumenic damages is a result of the other partys actions, however, they are unverifiable 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 various acts, cut down of life span, mental anguish, and loss of companionship, loss of reputation in a disparage suit, humiliation from scars, loss of anticipated business and other harm. emblematic (Punitive) damages This is the junto of punishment and the setting of public example.Exemplary damages may be awarded when the defendant acted in a malicious, violent, oppressive, fraudulen t, 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 worrying 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 lead on (about 25 cents) against author Louis Adamic, who wrote that the British strand 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 sassy 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 forces obtainable to negligence claims such as Violenti non adjoin injuria This is a Latin phrase which means for a willing person, there is no harm and used in civil cases as a defence oddly when the claimant voluntarily assented to start legal risk of harm at his own peril. In the case of Smith v bread maker (1891) AC 325. The plaintiff was utilise by the defendants on a railway eddy site and during the course of his spirt rocks were go over his head by a stretch. It was known to both the plaintiff and his employers that there a risk possibility of a rock music falling on him and had in the first place 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 bunk but no evidence shown that he voluntarily undertook to run the risk of injury, but his sequel to mildew did not indicate volens (his react). contributing(prenominal) negligence This defence applies where the damage suffered by was caused partly 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 tributary 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 cut down to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility of the damage so, if contributory negligence is support 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 rap 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 stave off 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 neg ligence and received nothing. Froom v Butcher (1976) QB 286. The driver of a car did not use the safety blast 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 seat belt. His damages were bring down by 20 per cent by the Court of Appeal.This accident resulted in the entryway of not wearing safety belt as a criminal offence. statutory or Common Law exculpation 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 canon. A good example is the law of nature and Criminal Evidence Act 1968 clearly setting out the power of constabulary to arrest, stop and search and entry. If these powers are used fairly and responsibly, the Act will repay a good defence to a tort action. Self-defence might perchance be a good confession in com mon 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 outlawed 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 move from the second floor 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 escaping. In his attempt to escape 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 interdependent on people for support. Vellino sued the Police and claimed they owe him duty of care to prevent him from injur ing himself which the Police denied and in their defence raised 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 particularly when a defendant is sued for civil judicial proceeding for committing an intentional tort. . It is also referred to as premise of risk and it plays an important role in law. In common law consent is regarded as a necessary member 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 Consent 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 obviously 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) complainant was a passenger abroad on one of the Defendants ships. She was immunize 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 that 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 noticed a tumour and distant 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 t o remove my rotten tooth. (1) Consent will be void if it is obtained by imposition 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. emergency It is an affirmative 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 fare and piss for almost three weeks. The defendants killed Parker to provide food for themselves to save them from starvation but Brooms dissented. T hey 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 consumption, the employer is held liable and this due to the doctrine of respondeat professional a Latin phrase meaning let the overlord answer . For a court to establish if an employee acted whilst in employment the following must be confirmed if Did the action happen whilst the employee is at lop 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 Flami ngos Night federation) (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 unlicensed 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 gaseous state tanker was in employment whilst transferring gun into and underground storage tank. He laid low(p) 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 advisedly obstructed the driver of a mate company and overturned the latters 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 managing 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. learn Test The control test was the original test th at has its origin in master and servant law and it also research who has dominance over the way work is carried out the work. This test was applied in Mersey dock and Harbour Boards v Coggins and Griffiths Ltd (1946) Mersey get in was in charge of training and for providing crane floozie to organizations. Mersey contracted one of his operators to longshoreman 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 whilst 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 unused who in the course of her duty used the plaintiffs telephone for internationalistic calls. The appeal of the contactor was su ccessful as it was held that was not vicariously liable for his employees act Health and Safety Act 1974 It is also referred to as HSWA or HASAWA is the main setof law or legislation that covers occupational health and safety at work and gives wide-ranging duties on employers to understand 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 relations to the activities of individuals at work To control and prevent the use of illegally acquired of hazardous dangerous substances. Employers responsibilities includeTo provide and maintain safety equipment and safe systems at work. To ensure hazardous materials used are properly stored, handled, ut ilised and transported safely To provide supervision, instruction, information, training at work for employees To ensure the control of certain dismissal 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 Taking 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 by-line of health and safety Must assemble with their employersSource (http//www.slideshare.net/ManojRNair/work-based-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 Work Regulations 1999Fatal Accident Act 1976Limitation Act 1980Law Reform (Contributory Negligence) Act 1945Employers indebtedness (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. StudyMode.com. 02, 2013. Accessed 02, 2013. http//www.studymode.com/essays/Vicarious-Liability-1451515.html. PageBibliographyIn Law, What is the Differences Between Tort and Contract Online forthcoming at http//www.wisegeek.com/in-law-what-is-the-difference-between-tort-and-contract.htm Accessed 28 October 2014 Law on Verbal Contract Online accessible at http//www.ehow.co.uk/about_5569485_laws-verbal-agreements.html Accessed on 01 November 2014 Misrepresentaion Online Available at http//www.e-lawresources.co.uk/Misrepresentation.php Accessed 01 November 2014 LAW OF TORTS Online Available at https//www.academia.edu/7711371/LAW_OF_TORTS_Dist inguish_Between_Law_of_Tort_Criminal_Law_and_Contract_Act Definition of Verbal Agreement Online Available atwww.ehow.com/info_7755018_definition-verbal-agreement.html Online Accessed 02 November 2014 Contract Express & Implied Terms Tutor2u Online. Available at http//www.tutor2u.net/law/notes/contract- express-implied-terms.html Accessed 02 November 2014Breach of Duty Online Available at http//e-lawresources.co.uk/Breach-of-duty.php Accessed on 04 November 2014 Vaughan v Menlove Online Available at http//www.e-lawresources.co.uk/Vaughan-V-Menlove.php Accessed on 04 November 2014 Psychiatric Injury Online Available at http//www.lawteacher.net/health-law/essays/psychiatric-injury.php Accessed on 06 November 2014 Cases tort-negligence-duty of care Online Available