When a statutory duty of care is created, the law of negligence is applicable. The legal definition of negligence is the failure to exercise reasonable care to avoid causing harm to a person or an entity to whom the tortfeasor owes a legal obligation of care. Thus, the law requires anyone who suffers losses as a result of another's carelessness to seek restitution for those damages. The losses incurred may take the shape of physical harm, property damage, financial loss, or mental illness. According to tort law, carelessness has five components. First, there has
to be a duty of care for which the defendant must uphold at all time. The second element is the breach of the said duty of care for which must be established for the negligence law to hold the third is an actual cause of the accident for which the compensation is being sought for. The fourth element is the proximate cause which should highlight the direct relationship between the risk and the cause of the accident, and then the last element is damaged. If however, a defendant in a suit fails to fulfill a responsibility as recognized by law as being beneficial to the plaintiff then, there is the legal liability. Deciding on whether the tort of negligence has occurred thus requires one to establish whether the duty of care existed before proceeding with the case.
Upon establishing the duty of care, the next step is to find out whether the duty of care was breached by the defendant and or respondent. The matter of breaching the duty of care had to be settled to determine the way forward. It’s both objective and subjective to establish breach depending on the action or knowledge the defendant ought to perform or possess to carry out a given task. Subjective is where the defendants knowingly expose plaintiffs to considerable loss whereas under objective the defendant fails to perform a given act that any reasonable person could have done to avoid the loss. The next item to be established is whether there omissions or actions by the defendant led to the damage or loss incurred. It is necessary to find out whether the risk or loss could have occurred without the defendant’s involvement. The plaintiff may not receive compensation unless; it’s proven that the plaintiff suffered pecuniary harm as a result of the defendant. Despite proof of breach of the duty thereof care, direct cause being established, the harm must be proven beyond reasonable doubt. The legal remedy must be proven and some cases a nominal damage may be issued without showing proof of damage. Once pecuniary losses are proved, it is possible for the defendant to seek for the non-pecuniary losses arising to it. Losses are assessed on the form of damages categorized as general, special and punitive. The defendant may be held vicariously liable for actions or omissions on the part of his or her agents, servant or anybody duly authorized to act on their behalf as long as such party fairly.
Application
Buddy drove the boat carelessly thereby permitting the accident to occur. The occurrence is contrary to his duty of care of ensuring a safe ride and delivering passengers to their destinations, “Buddy’s job is to maintain the boats belonging to Eco Tours at the Pine Harbour Marina and take tourists out on a large motor launch.” As a result of the accident, the passengers lost their valuable including laptops, sunglasses, fishing gear and clothing. Particulars of negligence include being behind schedule, driving excessively, listening to loud music that distracts him and unable to stop the boat in the time permitted the accident to occur. Because of Buddy’s actions, and or omissions the ECO Tours is held vicariously liable and thus must compensate the losses arising out of the accident. Buddy knew or ought to have known that, driving the boat excessively under load music would lead to the accident. In arriving at this decision, some precedence plays a pivotal role. In (Caparo Industries Plc v. Dickman, 1990), it was held that duty of care must be foreseeable and there must be proximity between the defendant and plaintiff. In (Bolton v. Stone, 1951) it was decided that Miss Stones could not be awarded damages because the ball that hit her head was not foreseeable.
Conclusion
Eco Tours are held vicariously liable for breaching the duty of care entrusted to them through their agent that permitted accident to occur thus causing harm to Buddy. They had the duty of ensuring passengers arrive safely without fault or loss of property. The cause of the accident was foreseeable by the passenger. The negligence is sufficient proof to hold the Eco Tour accountable for the damages suffered.
Task Two
2a. Your employment begins on DD/MM/YY and ends on DD/MM/YY equivalent to one year contract. The employment will automatically terminate without any notice or token of appreciation except the last month payment as may be due excluding when the termination is called earlier by either party.
As at and when both the parties sign the contract, it is at this moment agreed that the employee would be on trial for 90 days from the first day of reporting to the company.
You may be dismissed during the trial upon issuance of the notice. Either party may issue a notification of termination by issuing the notice of 7 days before the maturity of the trial period. Upon the notice, either employee or employer may pay each other as may be convenient.
An employee dismissed during the trial period cannot institute a proceeding against the dismissal. If however, the employee feels that the dismissal was unfair then, he or she may commence a legal action.
2b. To be able to get employment opportunity in New Zealand, one should be an Australian citizen or New Zealand, and such individual should possess a visa or New Zealand. Any person who possesses New Zealand’s work visa or conditions showing that an individual with a temporary visa is allowed to be employed.
For fixed contract to be valid the employer under ERA 2000, must provide reasonable ground as proof of contract being limited to the fixed term. The reasons must be genuine and must not raise any doubt and must be clearly stated. The termination of the employment of the fixed period must be stated in the agreement and that the employee must sign to validate the contract.
The doctrine of good faith requires that parties to an employment contract whether through employee or employer and unions should act at all time without malice. The codes of good faith may be approved by minister of labor under section 35-37 of ERA. The employer and union thus must observe minimum things to wit; meet each other, agreement on the process of bargaining, responding to the proposal, and information provision to support bargaining.
The annual leave-Every employee is entitled to an annual leave of four weeks provided such individual has been in continuous employment for 12 months.
The employee is further entitled to 11 public holidays a year as long as the employee was scheduled to work during such periods. The employee is further entitled to sick leave as long as the employee has been in contract with the employer for over six months on his or her prevailing contract. The minimum wage should be applicable on all time (hour) worked and the employee is bound to receive payments for any hour worked.
Employees aged 20 years and above is entitled to a gross wage of $302 per while for 16 and 20 years are entitled to $182 per week minimum. Leave 14 weeks for maternity and two weeks for paternity. Every employee is offered three weeks holiday payable on the minimum. An employee is also entitled to a special leave of 5 days. Every employee is entitled to work for 40 hours a week though an arrangement may be made.
2b.ii. Duties and Obligations of Employer
• An employer has the obligation to pay employees for their efforts.
• Ensuring that the employees’ place of work is safe
• Permitting the workers to take paid leaves
• An employer ensures that there is no discrimination at work.
• Providing written employment agreement
Duties of Employee
• Ensure performance of duty
• Taking instructions and acting without going against said rules.
• The employee has the obligation to take reasonable care while at work
• The employee must not work for competing for a firm or compete with the employer thus must show fidelity.
Task Three
FROM: Student’s [email protected]
TO: Samantha [email protected]
RE: Action on Angela Bowes
Dear Samantha Seale,
As per the contract that the company signed with Bowes, it was agreed that the ex-employee should not engage in any activity that competes with the company until the expiry of five years or as at when the parties agree to waiver the same in written communication. Going by the latest information, the ex-employee has used her previous contact to solicit for customers for a rival company, and this contravenes the agreement.
Given the preceding, there is a need to take immediate actions against ex-employee for breach of trade secrets contra to the need to uphold fidelity. The recommendation is guided by (Faccenda Chicken Ltd v Fowler, 1987), where plaintiff was held responsible for breaching confidentiality agreement. The same sentiments were upheld in the case of (Tang Siew Choy &Ors v Certact Pte Ltd, 1993).
Thank you.
Kind regards,
Name (Type name)
Task Four
Scenario 1
The inclusion of the phrase or clause, “This agreement is binding only in honor” implies that the two parties intended to behave more in a friendly manner than to create a legal binding contract. The parties may, however, be bound by their pleadings if there is proof of dealings or undertakings arising out of the said conversation, “agreement.” The phrase bars court from enforcing a contract between the parties under such arrangement unless there is a deed likely to prove the existence of a contract. For a contract however to exist, the aspect of legal binding must be present. Since no down payment has been made and also no arrangement to deliver the good has been done except agreeing to make an arrangement, the contract is not legally binding.
The decision is supported by (Rose and Frank v Crompton, 1925), in which it was held that since the defendant had engaged in supplies, the sale of a good contract was created and thus it was enforceable in a court of law despite the inclusion of the phrase, “honorable only.”
Scenario 2
Displaying of prices during exhibitions or shows is a mere invitation to treat and thus cannot be relied on as a basis of purchasing the product. To begin with, there is no contract between the FSL and the Eco Tours. Offer and acceptance become the fundamental ground of contract initiation. The two parties have not in any way offered and accepted the contracts. What is evidenced is communication intended to supply information about the price and terms of purchase. The Eco had only one option to perform for the contract to be valid, accepting to pay the down payment as stipulated by the FSL which they did not do thus, no contractual relationship. The decision is supported by authority in the case of (Harvey v. Facey, 1893). In authority, Harvey had sued Facey, and the Justice was tasked to find out whether the Facey’s response was a binding offer. It was noted that implied contract cannot exist in written communication and that mere statement of lowest price could be relied on.
Scenario 3
Bruce is not obliged to pay for the promise as this is considered past consideration. The promise is made way back after the contract had been executed. Bruce can, however, pay it out of gentleness. In this case, Helen has done nothing after the executed contract that warrants something in return, “quid pro quo.”
The contract is valid since the promise has been made before the initial contract had been executed. Furthermore, the new terms have since canceled the old contract the new contract shall take effect with $ 5500 payable as the cost of the performance. Joan, therefore, is obliged to pay the amount inclusive of the increased $100. In this case, the contract is said to be “executory” and hence valid.
Scenario Four
Issue
Is the contract between the Eco Tours and Albertina binding?
Law
The contract with a minor is binding as long as it’s for service or employment and as much as it can be proven that the contract is for life insurance entered by a minor 16 and above of age. The burden of proof lies heavily on the party that enters into a contract with a minor. Contracts with minors under section 6 of The Minors’ Contracts Act 1969 are unenforceable however if it can be proven that the said contract was fair and just then it is enforceable. Further to section 5 of the minor’s contract act, the minors in a contract are under obligations to act as if they were an adult of sound mind. Otherwise, section 7 of the said Minor’s Act relieves either party from the contract as may be deemed as appropriate. Minors can be guaranteed, and in that case, the guarantor becomes the creditor.
Application
From the case study, Bruce has entered into a contract for a service for which Albertina is supposed to pay $ 1000. However, scrutiny indicates that the brush was defective and thus the minor could not offer better quality. Furthermore, there is a nearby facility charging $ 400 a week which way cheaper than the Bruce. The contract is not based on fairness and justice, and hence Albertina will not be liable for the contract and its terms. Albertina and Bruce will be relieved of the contract as per section 7. If the father had guaranteed the creditor, then he would be liable for the debts owed to Bruce.
Conclusion
The contract is thus not binding, and Bruce serves to lose under sections 5, 6 and 7 of the Minor’s Act 1969. Albertina is at this moment discharged of her obligations.
The Eco Tours had contractual capacity to enter into the contract however the contract was voidable as they had falsified information and again it was unfair to charge high prices. The contract was for service, and thus there was nothing wrong entering into the same.
Scenario Five
Issue
Is the contract between Georgie and Hazel binding?
Law
For a contract to be binding, it must possess all the essential elements. There has to be a consideration, offer, and acceptance, and the subject must be legally binding. The parties to a contract must also possess contractual capacities. The absence of these because of mistake, misrepresentation, undue influence and duress make a contract to be void, voidable and unenforceable. It is the duty of the buyer to beware of the conditions of a good being sold under caveat emptor.
Application
The contract is not binding by utmost good faith; the seller ought to have brought to the attention of the buyer, the leaking wall. The statement of “similar houses have been sold,” had no weight in convincing Hazel to purchase the house.
Conclusion
The contract is not binding per see; Hazel can sue for specific damages, the $200,000 if it can be proven that the price excluded the cost of repair.
Scenario 6
TO: CEO Eco Tours
FROM: Company Secretary
RE: Misrepresentation Facts on the Purchased Land
DATE: 2017-03-17
Mr. CEO,
Receive my evaluation reports on the purchased land. There is no misrepresentation of facts in this case. Eco Tour had time to find more before making the purchase. Furthermore, the seller’s agent did not act on behalf of the Council. It is important for the buyer to beware of the property being purchased under the doctrine of utmost good faith. The sewerage clause did not feature meaning the Eco Tour had not based their judgment on the same.
The Eco Tour cannot cancel the contract as there is no misrepresentation of fact in the agreement but even if there were, it was not explicitly stated in the agreement that the reason for making the purchase was based on the accessibility of sewerage.
The Eco Tours cannot claim damages from Don, the sale of land and the use of land have no relationship and furthermore, the only people who could tell such planning are the city council under their city planners. Eco tours never thought to do a search and establish this fact.
The assessment of damage is arrived at after looking into two questions namely quantum of damage and remote damages. The measure of damages will look at special damages for expenses incurred and price of the land plus general damage to be quantified by the court. Interest and cost may also be awarded.
The debts can be recovered using this method, court proceeding, solicitor, debt recovery agency and amicable solution.
Regards,
Company Secretary
References
Bolton v Stone (1951) AC 850 House of Lords
Caparo Industries Plc v Dickman (1990) UKHL 2 (08 February 1990)
Faccenda Chicken Ltd v Fowler (1987) Ch. 117 (05 December 1985)
Harvey v Facey [1893] UKPC 1, [1893] AC 552
Laidlaw v. Organ, 15 U.S. 178 (1817)
P. S. Morrisson (1994)). Labour, Employment and Work in New Zealand (Conference Proceedings) Victoria University, Wellington.
Rose and Frank & Co v Crompton (1923) 2 KB 261
Tang Siew Choy and Others v Certact Pte Ltd (1993) 3 SLR 44; [1993] SGCA 35
The Judicature Act 1908 of New Zealand
The Minors’ Contracts Act 1969 of New Zealand
