商务契约关系outcome3.doc

1

a.

Explain the duty of care

The meaning of duty of care 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.

For

example,

the

provisions

of

the

Health&Safety At Work Act1974. The duty of care is therefore someone whom

the

defender

ought

to

have

contemplated

as

within

sufficient

proximity

to

the

defender to be owed a duty of care.

you must take reasonable care to avoid acts

or

omissions

which

you

can

reasonably

foresee

would

be

likely

to

injure

your

neighbour.

Who,

then,

in

law

,

is

my

neighbour?

The

answer

seems

to

be

:

persons

who

are

so

closely

and

directly

affected

by

my

act

that

i

ought

reasonably to have them in contemplation when i am directing my mind to the

acts

or

omissions

which

are

called

into

question.

In

the

Donoghue

v

Stevenson(1932) case, in this case, Mrs. Donoghue bought an opaque bottle of

ginger beer for her friends in a cafe in paisley, and the shopkeeper poured some

ginger

beer

over

ice

cream

in

a

glass

which

Mrs.

Donoghue

drank. Then

,her

friends

find

out

the

decomposed

snail

in

the

bottle. Mrs.

Donoghue

alleged

because

drunk

the

contaminated

ginger

beer,

she

suffered

a

serious

illness. Because Mrs. Donoghue

didn't have a contract with the seller nor with

the manufacturer of the goods, So the only saving way is the

manufacturer not

taking care in the production of the product.( Business Contractual Relationships

F84N 34 P279-283)

b.

Is Carla correct? The common law and statutory law.

It

not

correct,

The

definition

of

Common

Law

Duty

is

a

personal

one

to

take

reasonable care for the employee

’

s safety. He is required to take the same care as

a reasonable and prudent employer would take in the same circumstances. This

includes a duty to provide safe working premises. And about the Statutory Duty,

the

main

statute

here

is

the

Health

and

Safety

At

work

Act

1974

(HASAWA).

This was imposed on earlier existing safety legislation which was not repealed,

and so earlier legislation regulating safety in the workplace can still be relevant.

And the implied terms are those which are not actually stated, but still impose

obligations on the parties, and the reasons such as necessary to make the contract

work,

obvious

or

assumed,

by

custom

and

practice,

by

statute.(

Business

Contractual Relationships F84N 34 P326-329)

2.

The

defences

about

the

contributory

negligence

and

Volenti

non fit injuria

About

the

contributory

negligence,

as

well

as

the

above

defences,

a

defender

may argue that the pursuer contributed to his or her own losses. And the defender

has been negligent but the pursuer’s own actions, in failing to take care for his

own safety, have partly contributed to his injuries. For example, in the case about

Sayers v Harlow Urban Council (1958), Sayers because of trying to climb out of

a

faulty

locked

toilet

cubicle,

she

got

hurt.

And

her

actions

were

not

a

novus

actus interveniens , the local authority was liable. However, because she tried to

climb

out

whilst

putting weight

on the

toilet

roll

fitting which was fragile, the

damages payable were reduced by 25%. In the case, Chris get hurts because of

he

fell

from

the

ladder

he

was

on

,

no

one

help

him

with

the

ladder.

But

the

company during him training always say when he do this work need a person to

help

him

to

with

the

ladder.

But

he

don

’

t

ask

anyone

to

help,

this

is

a

contributory

meaning

of

V

olenti

Non

Fit

Injuria

,

it

must

be

shown

that

the

pursuer

freely

and

voluntarily

with

full

knowledge

of

the

risk

involved

agreed

to

take

that

risk.

The

defender

must

establish

that the

pursuer

had free choice and this would not apply if he/she acted out of duty or out of fear

of

losing

his/her

job.

in

the

case

of

Walton&Morse

v

Dorrington(1977),

a

secretary

worked

in

an

office

where

colleagues

smoked

but

there

was

good

ventilation. When they were moved to another office without such ventilation the

smoke became an irritant and she left when the employers would not make any

changes.

The

employers

were

held

in

breach

of

a

duty

to

provide

a

working

environment

which

is

reasonably

suitable.

In

the

case,

this

work

which

Chris