HND BCR 商务契约关系 outcome1.doc

Case 1 Question 1l General principles of the law of delictThe law of Delict, like the law of contract, is a part of the law of obligations. A delict has been defined as: “a civil wrong committed by a person in deliberate or negligent breach of a legal duty, from which liability to make reparation for any consequential loss or injury may arise”. Delict is also known as the law of civil wrongs and applies to much of the same area of law as the English law of tort. General principles of delictual liability is that a loss or injury, such as physical or personal injury, the loss of earnings, nervous shock, distress, damage to a reputation; caused by a legal wrong; caused by culpa on the part of the wrongdoer. Two exceptions will be discussed is that vicarious liability, where the defender is liable for the actions of another; and strict liability, where liability can arise without fault through statutory provision. Liability is transferred to the person benefiting or gaining by the actions of the wrongdoer and they are more likely to be able to pay and/or be covered by insurance. Vicarious liability is an example of joint and several liability as the injured party can sue both the employee and the employer.l Negligence and the duty of careNegligence is the most common delict and an action in delict arise where harm is caused carelessly or inadvertently. The law of negligence has developed to protect individuals from physical harm to the person and to property. Financial interests are only protected where the financial loss is consequential to the harm of the person or property. For a claim to arise in negligence, the following points must be considered: duty of care owed; breach of the duty of care; caused and causation and remote. And this is judged on what the reasonable man would or would not have done had he been in the defenders position to eliminate the risk which in the exercise of his reasonable foresee ability he had identified. In the case of Scott V London and St Katherine Dock Co (1861). Six bags of sugar fell on a custom house officer as he was passing under a warehouse loading bay. The bag were being lowered to the ground by a crane and there was no explanation for the accident. In the absence of an explanation the presumption was that the accident arose from the defenders negligence. And in the case of Smith v Leech Brain and Co Ltd (1961), a man was burnt on his lip by a splash of molten metal and his employer was held negligent in not providing adequate protection for the employee. This led to cancer although there was already a premalignant condition in his ;op tissue. The employers were held liable for his subsequent death.Question 2l Standard of careThe standard of care varies according to the particular circumstances, in this case Mrs McGregor was seriously injured in a car crash because her brakes failed.Danny feels dreadful about this he should have spent more time working on Mrs McGregors car. In the case of Hughes v Lord Advocate(1963) and Muir v Glasgow Corporation illustrates this point.l Breach of the duty of careu Contributory negligence. Where the defender has been negligent but the pursuers actions have partly contributed. The burden of proof is with the defender. (Sayer V. Harlow urban Council (1958). u Consent and volenti nofit injuria (one consenting no wrong can be done). When the pursuer freely and voluntarily with full knowledge of the risk involved agrees to take the risk no delict (Morris V. Murray (1991).u Damnum fatale. An act of God and would be outside the control of man. Example is cyclone, hurricane, and earthquake.In this case Danny feels dreadful about this he have spent more time working on Mrs McGregors car. After listening to Dannys worries, Tom, the garage owner, has reassured him that he did everything that could be expected of a reasonably competent mechanic.Case 2Question 1l Liability applies to the keeper of an animalThe duty of care:There is no liability for a failure to take due care unless there was a duty to take care in the first place. A duty of care is imposed by both the common law and by statutory law. There is a breach of the duty of care. This indged on what the reasonable man would or would not have done had he been in the defenders position to eliminate the risk he had defined. For example, the provision of the Health&Safety At work Act 1974.The burden of proof:The burden of proof is the obligation on a party to establish the facts in issue in a case to the required degree of certainty (the standard of proof) in order to prove their case. There is a rule of evidence known as res ipsa loquitur or the facts speak for themselves and here the burden of proof shifts to the defender. There are three conditions necessary for res ipsa loquitur to apply: the offending thing must have been under the control or management of the defender or his employees such accidents do not normally happen where due care is taken there is an absence of explanation for the accident. Vicarious (in place of another) Liability: Someone can be liable for anothers delictual act. This can come as a result of agency, partnership and employment. Liability is transferred to the person benefiting or gaining by the actions of the wrongdoer. Vicarious Liability of the employer for his employees Actions Vicarious liability is an example of joint and several liability as the injured party can sue both the employee and the employer. To bring an action against the employer the pursuer must prove: That the wrongdoer was an employee of the defender, and that the delict (wrongful act) was committed within the scope or course of his employment. If the employer is sued and found liable, then the insurance company can sue the employee for the amount that has been paid in damages which is unusual unless conduct has been willful, it is illustrated by the case of Lister V Romford Ice and Cold Storage Co (1957).Strict liability: The liability Where can arise without fault through statutory provision.The principle of no liability for pure economic loss has been qualified by some development in case law where there is financial loss caused by negligent misstatement and where financial loss is caused by careless acts in limited circumstances. In the case of Hedley Byrne & Co v Heller & Pareners(1964)In the case of Smith v Eric Bush (1989), the House of Lords held that such disclaimers could not exclude the liability of surveyor for negligent report as under the Unfair Contract Terms Act 1977 it was not fair or reasonable to expect the purchaser to take the risk for losses arising form the incompetence of a surveyor. Question 2l Defences The following defences are available when concerned with liability in relation to both dangerous and non-dangerous species:Ø Contributory NegligenceWhere the damage caused is due wholly to the fault of the person suffering it is said to be a defence under Section 5 of the Animals Act 1971. Ø Violent Voluntary assumption of the risk is a defence under Section 5 of the Animals Act 1971 but not if this risk is ordinarily incidental to that persons employment. An example of this would be someone working as a lion tamers assistant. Ø Trespasser Under Section 5 of the Animals Act 1971 there will be no liability where the keeper can prove that the animal was not deliberately kept to protect persons or property from trespassers of if it was that this protection was not unreasonable.In the case, the employer can use contributory negligence, consent and volenti non fit injuria and damnum fatale. In the case of Lister v Romford Ice and Cold Storage Co (1957), and in the case of Morris v Murray (1991),The defence of volenti was successful. Question 3l Careless ActsThis is also known as the junior books liability after the leading case of Junior Books v Veitchi & Co(1982). That pure economic loss is generally irrecoverable, unless there are exceptional circumstances such as negligent misstatement or a special relationship akin to contract as in junior book. In addition, it should be noted that the junior book decision has been criticlsed in many subsequent court cases and should be read with caution.Case 3 Question 1There are various defences available to a claim in delict and specifically covers the following: contributory negligence; consent and volenti non fit injuria; damnum fatale; immunity and prescription.There are many defenses available to be argued by a defender to an action. For example, defender could claim a defense on point of low. The defender could also claim that the pursuers case was factually incorrect, i.e. A defense on point of fact.In the case(a), the Rap can use contributory negligence, consent and volenti non fit injuria and damnum fatale. In the case (b), the Margaret can use contributory negligence. In the case (c), He wants to use immunity to escape his liability. Question 2In the case(a), Jamesie intends to sue Rab for the injuries that he suffered as a result of his dangerous driving. the Rap can use contributory negligence, consent and volenti non fit injuria and damnum fatale to escape liability.In the case (b), Margaret attempted to apply the brakes as quickly as possible, but the bus driver was much slower to react, the defender is the bus driver, but his vehicle was unable to stop in time so the bus collided head on with Margarets car. It is unexpected. At the same time, Margaret was not wearing her seat belt at the time of the collision, it is Margarets negligence. So the defender coule use contributory negligence to escape liability.In the case (c), obviously, the Knockbuckle players, lost his temper脾气 and kicked Gavin in the face during a scrum and he makes a excuse for this called that accidents will happen and anyone who plays the game knows this only too well. He wants to use immunity to escape his liability.Question3In the case(a), Jamesie got to the car and screamed at Rab to drive the car as fast as he could, so Jamesie has liability on the subsequent car crash, and in the case, we could find that Rab lost control of the vehicle, it is damnum fatale. Thus, Rap might successfully by use contributory negligence, volenti non fit injuria and damnum fatale to escape liability. In the case (b), the defender is the bus driver, he had out of control of his vehicle when the accident happened, so the bus collided head on with Margarets car. It is unexpected. At the same time, Margaret was not wearing her seat belt at the time of the collision, it is Margarets negligence. So the defender coule use contributory negligence to escape liability successfully.In the case (c), the Knockbuckle players, lost his temper and kicked Gavin in the face during a scrum and he makes a excuse for this called that accidents will happen and anyone who plays the game knows this. It is an intentional act, he wants to use immunity to escape his liability. I think It is chicanery and it never would have succeed.