HND BCR 商务契约关系 outcome1

Case 1

Question 1

General principles of the law of delict

The 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.

Negligence and the duty of care

Negligence 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: 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 defender s 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 defender s 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 2

Standard of care

The 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 McGregor s car. In the case of Hughes v Lord Advocate(1963) and Muir v Glasgow Corporation illustrates this point.

Breach of the duty of care

Contributory negligence. Where the defender has been negligent but the

pursuer s actions have partly contributed. The burden of proof is with the defender. (Sayer V. Harlow urban Council (1958).

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)).

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 McGregor s car. After listening to Danny s worries, Tom, the garage owner, has reassured him that he did everything that could be expected of a reasonably competent mechanic.

Case 2

Question 1

Liability applies to the keeper of an animal

The 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 defender’s 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 another s 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 employee s 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 …… 此处隐藏：6173字，全部文档内容请下载后查看。喜欢就下载吧 ……