LAW510 Commercial Law

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LAW510 Commercial Law

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LAW510 Commercial Law

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Course Code: LAW510
University: Nelson Marlborough Institute Of Technology

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Country: New Zealand

Discuss about the Commercial Law Freddy Foolish and Brilliant Real Estate’s.

Based on the case study provided, the following issues can be drawn:

Whether the employee Freddy Foolish is liable for the act of negligence?
Whether the employer Brilliant Real Estate’s Management is vicariously liable for the negligence done by the employee?

The term “negligence” in its ordinary senses means unable to take proper care of the given task. It could be due to carelessness or lack of care of the given person. Negligence causes harm and it could even lead to death at times. However, the application of negligence is not restricted to death it may also lead to injury (Burrows & Burrows, 2016). The injury may be mental or physical in nature.  Negligence is caused when someone is unable to take proper care of the said duty (Fletcher, 2015).
Negligence in legal term means Breach of duty of taking care causing damages.
A person is said to be negligent when he/she is unable to fulfill his/her duty properly. Negligence leads to permanent damages, temporary damages, even death (Rai, Acharya & Dave, 2013).
For instance, if person digs out a part of road just in front of the main road where some other person resides just to put a pipeline for his kitchen can be declared as an act of negligence. After completion of his work the person leaves the hole as it is without filling it. A child while crossing the road fell inside the whole causing serious injury. The person is liable for negligence in tort (Haripriya & Haripriya, 2014).  
There are four basic elements for Negligence, viz,

Breach of duty
Breach causing injury

Each of the elements are explained below:
It is the relation between the Plaintiff and the Defendant. It is the duty of the Defendant towards the plaintiff. This duty is generated automatically once the law recognizes a relationship among the defendant and the plaintiff (Robertson, 2013).
For example, if any person is working on the road, for example, cleaning the manholes it the duty of the authorized person to put a caution sign board for the safety of others. Is he fails to put it and due to that any harm is caused he is said to charge of negligence.
Breach of duty:
A defendant is legally responsible for negligence if he fails to complete his duty toward his plaintiff. He is said have done BREACH if he does not show reasonable care to the authorized task. He is even liable to be penalize for failure to fulfill his duty (Fulbrook, 2017).
Breach causing injury:
This could be stated once the negligence caused by the defendant actually causes injury to the plaintiff. The action of the defendant must cause injury to the plaintiff.
For example while loading a truck with sacs of cotton a child was hurt causing injury to his face and head as a loaded sack fell upon him.This an act of negligence (Abraham, 2017).
At certain situations when a person is found guilty of his negligence he is liable to pay damages for the injury is caused because of him. Damages leads to compensation depending upon the amount of injury (Zipursky, 2015).
The law of tort in New Zealand is prepared in the court only in the court only. They do not follow the US law so they prefer to make their own laws.
The natural law does not give any remedy to these facts so they have made their own laws for the betterment of the company (Osborne, 2015).
Negligence in other words is the breach caused to the duty given. There are very common incidents related to the breach is vehicle accidents, civil cases, accidents  caused to the visitors.
The following situations can be held for negligence :

A person recklessly driving in an busy street causing injury to many pedestrians
A doctor negligently operation the left arm of a patient instead of right arm
A car driver hits a pedestrian accidently while driving and caused damages to eggs that he was carrying with him. Almost 350 eggs got damaged. Both the car driver and owner are liable for the negligence caused and the owner is liable to pay damages.

In the given case study as well, there has been many instances wherein Freddie was negligent as one of the employees of Brilliant Estate Ltd. As a man of ordinary prudence, he had the responsibility to take preventive measures from the happening of the accident. However, he failed to abide by his duty and he breached his duty of care. As a result of his negligent act, the driver of the car, Danny Dorito suffered a head injury. Freddie Foolish did not place any cones neither did he put up any safety barriers to block the area around where he was working. Thus, it can be said that he did not take any action for preventing the accident from happening.
Intentional tort for employees includes the following:


Vicarious liability
In tort vicarious liability means the employer is also responsible for any negligence done by the employee in the course of his employment causing serious injury to others.
It is a strict liability. Vicarious liability means holding the responsibility of any act of negligence  done by someone  . It is the act done by any employee during the course of his employment.
The element of vicarious liability is that the employee or the person who did the negligence need to show the agreement that he has been authorized by his employer for that act to be done during his course of employment.
In the given case study as well, the employer of Freddie, that is Brilliant Estate Ltd will be held vicariously liable for his negligent action as the action took place during the course of his employment.  
Case references
Donoghue v Stevenson (1932)AC562(HL)
In this case the decision was held by the House of Lords. It was stated that one must be more careful toward other as it their duty to take care of it. This case is also known as ‘snail in the bottle case’.
The fact of the case was that Ms. Donoghue bought a bottle of ginger beer . After she consumed the ginger beer a dead snail was found inside the bottle. So after consuming that drink she fell ill and sued the owner of the ginger beer mr. Stevenson. It was decided by the house of lords that it is the fault of the ginger beer company . It is their duty to check every production done by them. They are held for their negligence. Due to consumption of the ginger beer the consumer  ms.donoghue fell ill, physical damage was caused to her.
Other case references:
In the case of Limpus V. London General Omnibus Company, he was working according to his employer. His duty was to deliver milk and that is what he was doing only. It  was not his fault , his employer employed him for that work  knowing the drawbacks of it.
In the case of Blyth V Birmingham Waterworks it was held that negligence is a act of doing any work with or without the guidance of a second or more person or persons. It is basically the behavior and conduct of the person. Negligence is something a man can not do with out the instigation of others. It depends upon the human behavior.
Thus going through the applicable law it can be concluded that both Freddy Foolish and the Brilliant Real Estate’s Management are liable the damages they caused and they are bound to pay damages.
Abraham, K. (2017). The forms and functions of tort law. West Academic.
Campbell, I. D. (2016). The absence of negligence in Hedley Byrne v Heller. Law Quarterly Review, 132(2), 266-277.
Fletcher, S. (2015). ‘Who Are We Trying to Protect?’The Role of Vulnerability Analysis in New Zealand’s Law of Negligence.
Fulbrook, J. (2017). Outdoor activities, negligence and the law. Routledge.
Haripriya, A., & Haripriya, V. (2014). Knowledge about medical law and its negligence among doctors: A cross-sectional study. Int J Sci Res Publ, 4, 1-3.
Osborne, P. (2015). The law of torts. Irwin Law.
Rai, J. J., Acharya, R. V., & Dave, D. (2013). Knowledge and awareness among interns and residents about medical law and negligence in a medical college in Vadodara–A questionnaire study. Journal of Dental and Medical Sciences, 3(4), 32-8.
Robertson, A. (2013). On the Function of the Law of Negligence. Oxford Journal of Legal Studies, 33(1), 31-57.
Zipursky, B. C. (2015). Reasonableness in and out of Negligence Law.

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