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Assignment 2: Report

Business Law Workshop 1


Husain Khamis
201201558
Ahmed Albahrani
201101571
MahmoodShehab
201100897
Narjes Husain
201201579
RuqayaSaleh
201102843

TABLE OF CONTENTS

PART 1: Company and International Legal 3


Environment
Company Structure
3
FTA Implications
3
PART 2: Intellectual Property
5
Copyright
5
Trademark
5
Patent
6
PART 3: Tort
8
Azizs Case
8
Fatimas Case
10
APPENDIX
13
Part 1
13
Part 2
13
Part 3
15

PART 1: COMPANY AND INTERNATIONAL LEGAL ENVIRONMENT


Issue: What are the legal implications of the current company structure and what is the
most suitable company structure when considering OT expansion plan?
Rule: Article 25 states that the partners of a General Partnership are jointly liable to the
extent of all their assets for the companys obligations. Article 50 states that a Limited
Partnership Company can include general partners who are fully liable to the extent of their
entire property for the companys obligations, and limited, sleeping, partners, who have
shares in the company but are not involved in management, and are only liable to the extent
of their interest in the capital.
Application: This current company structure of a General Partnership Company means that
all partners (Mr. and Mrs. Al Mansoor and their two adult children, Zainab and Yaser) have
unlimited liability. OT is not a separate legal unit from the partners, this means that the
partners are all equally liable for any debt or potential loss OT may incur. The business
errors, decisions, and business debts incurred by one partner are considered to be the
responsibility of all of the partners. In addition, if OT were to fail, then all partners are
equally liable for all the costs financial and legal that the failure would incur.
Furthermore, if OT were sued for negligence or fraud, then the partners would be held
liable.
Conclusion: Since Mr. and Mrs. Al Mansoor have expressed their wish to have very little
input in the running of OT, a Limited Partnership Company is a better company structure for
OT. This company structure aligns with the desire of the parents of having little input in
managerial decisions. Additionally, this company structure will substantially lower the risks
of expanding into the US for the parents, as they will only be liable for the capital they have
put forth in OT.
Issue: What are three implications of the Free Trade Agreement that could affect OT?
Rule: The Free Trade Agreement between the Kingdom of Bahrain and the United States has
been studied and analyzed to determine its possible implications on OT.
Application:
1. Eliminating 96% of the trade barriers between Bahrain and the US means a lot of US
businesses will set up bases or branches in Bahrain. Consequently, this increases
OTs competition and potentially compromises its market share. OT will have to up
its game, because it will not be competing on level ground with US businesses. US
businesses have many advantages over Bahraini businesses, like OT, that include
stronger bargaining power with suppliers due to their reputation as international
businesses. Also, these US businesses are internationally known and recognized;
therefore, they will attract more consumers. They will also attract Bahraini
customers due to the principle of conspicuous consumption (the spending of money
on different, special products and services to publicly show economic power and
status). This will make it more difficult for OT to attract new customers, retain its
current customers, and to attain and maintain the same standards required to
compete with international businesses.
2. Free international trade increases the size of an industry, creating economies of
scale for the businesses in that industry (lower average costs, increased productivity,
and higher profits).The FTA led to an increase in trade between Bahrain and the US
by 44%, totaling US $1.1 billion (Bahrain.com, 2014). OT will gain economies of scale
because all of the new US businesses will increase the size of the market. This lowers
OTs costs, leading to higher profits. As a result of operating becoming economically
cheaper, OT can reinvest its higher profits by expanding through new services or
new branches. This will enlarge OTs customer base and strengthen its brand.

3. As the agreement protects trademarks, patents and copyrights by following the


most updated international standards, OT should not be facing any kind of problems
regarding protecting its logo, distinctive signs, matters regarding copyright or patent
or counterfeit goods. This will be a positive for OT as it will be more legally
protected, not only nationally but also internationally.
Conclusion:The FTA can affect OT both positively and negatively. OT should analyzeFTAs
implications. OT must study its potential international competition and devise new
strategies on how to gain a competitive advantage. Moreover, OT should make plans for
future development in a market that will exponentially grow with the US businesses. Finally
we recommend that OT examine its logo and trademarks, patents and trademarks so it
would comply with international standards applied in the US.

PART 2: INTELLECTUAL PROPERTY


Any IP infringement committed in relation to the photograph:
Issue:
Does copyright law include the artistic works or photographs?
Who has the literary right and the economics right for the photographs?
Does Hasanhas the right to publish the photographs that he took during the OT event to a
local magazine?
Rule:
- Article 2 (I) (copyright law 2006) see appendix, There are many things that can be
protected by copyright law such as artistic and scientific works, including works of
photography and similar works.
- Article 5 (copyright law 2006) see appendix, the creator has the continuous literary rights
which are absolute.
- Article 36 (copyright law 2006) see appendix, the economic right belongs to the party
who commissioned the person who created the work.
- Article 70(copyright law 2006) see appendix, the photographer has the right to publish
the photographs if they were taken in public or it involves international celebrities, except if
there is an existing written agreement that state the opposite.
- Article 64 (2) (copyright law 2006) see appendix, there are several punishments for
infringing the copyright law, for example article 64(2), states that a compensation to remedy
the damage including profits gained by the violator.
- Article 37 (copyright law 2006) see appendix, the creator economic right last for seventy
years, starting from the first day of calendar.
Application:The copyright law includes photography works, this means all the photographs
Hasan took at the event are copyrighted.Hasans photographs are original because they are
taken by him; they are unique, not copied from another source, and are recorded in a
tangible form.Therefore, the photographs meet the requirement of being protected by
copyright law. In addition, the economics right of the photographs belong to OT (Yasser), he
is the party who commissioned Hasan to take the photographs in the international event. In
addition, due to his written contract with OT (Yaser) which forbids Hasan from publishing or
selling the photographs, Hasan cannot pubished or sell the photographs. Thus, Hasan
breached the contract.
Conclusion:Despite Hasan being the owner and having the literary rights of the
photographs copyright, OT has a contract with Hasan stating that the photographs must not
be published elsewhere. Because Hasan published the photographs in the magazine, he may
face legal punishment.OT may request a compensation,ranging from 500 to 9000 BHD, to
remedy the profits gained by Hasan from selling the photographs to the magazine. He may
also be penalised for breaching the written contract. Also, for additional information OT has
the economics rights for the photographs thatis protected for seventy years.
Any IP infringement in relation to the Shampoo (Trademark and Patents):
Trademark:
Issue:
Has OT infringed Dove trademark?
Does OT has the right to include the Bahraini flag in the trademark?

Rule:
- Article 3 (k & c) (trademarks law 2006) see appendix(K) A trade mark must be sufficiently
unique, clear and not confusing to the public, it must not be similar to a registered
trademark, (C) Also, in order to register a trademark, the country flag must not exists on the
logo where it belongs to Bahrain.
Application:To protect any trademark, you must register the mark, in either verbal or nonverbal form, to distinguish your goods and protect them from others. In this case, the logos
form is non-verbal trademark.OTs Royal Heavenly Airs logo isclearly sufficiently distinctive
from Dove shampoos logo, despite both companies using the bird symbol in their products.
It is clear to the public that there is a big difference between the two marks; they are not in
the same shape or form and it is not confusing. However, OT using Bahraini flag next to the
flying dove in their logo is not allowed under law, using it will prevent the registration of the
trademark.
Conclusion:Dove has no right to take legal actions toward OT for using the bird symbol
because it is to generic and it is not similar to Doves design.It is easy to distinguish the
difference between OTs and Doves marks. However, OT have to remove the Bahraini flag
from the mark where by law it is not allowed. Also, just to be careful, it is recommended for
OT to remove the crown figure on the mark and change the name or the word (Royal) in the
shampoos name. Also, for further notice the trademark registration is valid for ten years
from the date of filing the application in the Kingdom of Bahrain.
Patents:
Issue:
Can a shampoo considered to be a new invention? Does it involve an inventive step, and is it
considered as industrially applicable?
Does Dove has a patent on the ingredients of their product?
Can Dove stop OT from manufacturing Royal Heavenly Airs?
Can OT have a patent on their shampoo?
Can OT ask the permission from Dove to use their patent?
Rule:
- Article 1 (patent law 2004) see appendix, a patent that is new involves an inventive step
and it is industrially applicable shall be given and protected by patent.
- Article 7 (patent law 2004) see appendix, in order to register a patent, the right of the
patent shall be given to the inventor.
- Article 11 (B) (patent law 2004) see appendix, the party who own the patent has the
right to prevent manufacturing or offering to sell the patented item. Also prevent the use of
their manufacturing method.
- Article 22 (patent law 2004) see appendix, the possession of the patent could be
transferred fully or partly also a license could be granted for using the patent with terms
agreement.
Application:A shampoo in general can have a patent, if it was some revolutionary new
product that will help to solve something big, was an original inventive step, and industrially
applicable.Dove has patented mix of mild cleansers and moisturising cream (Unilever, n.d.).
Whether this patent is still applicable does not matter because OTs shampoo is not a new
invention, and there are a lot of products that are similar to Royal Heavenly Airs in the
market. Also, because OTs shampoo does not involve originality of thought, it does not

involve inventive step where the ingredients used to manufacture the product are similar to
Doves. Therefore, OT cant have a patent on their shampoo. Also, Dove has the right to
prevent the manufacturing process of royal heavenly airs for all the previous reasons.
However, OT can ask the permission to use Doves ingredients and manufacturing process
where Dove can grant OT a license to use their patent to manufacture the shampoo.
Conclusion:Considering all facts, it is recommended that OT should not go forward in the
manufacturing of the shampooas it will lead to infringing the patent law. However, OT has
the opportunity to have the patent ingredients of dove after 20 years of the filing date of the
application where if Dove does not pay the annually renewal fees they will lose the right to
keep their patent confidential or OT can simply ask Dove for the permission to mortgage,
buy
or
rent
the
patent.

PART 3: TORT
Aziz's Case:
Issue:
1) Was there a duty of care?
o 1.1) was the Tort reasonably foreseeable?
o 1.2) was there a Proximity between Aziz and Jamil?
o 1.3) is it fair, justice and reasonable to impose a duty of care on
Jamil?
2) Has there been a breach of duty?
3) Did the breach of this duty cause an injury?
4) Was Aziz Aware of his Actions?
5) IS there a vicarious Liability on OT?
o 5.1) was a tort or crime committed?
o 5.2) WasJamil an employee to OT?
o 5.3) Was Jamil acting in the course of employment when the
tort was committed?
6) Can Aziz Claim damages from OT?
Rule:
Civil Code:
-According to Rule 158 see Appendix- a person who committed a fault is
responsible to pay compensation to the injured party.
- According to Article 166 See appendix the person who contributed into an
injury shall pay compensations to the injured party to the extent of the effect of his
fault.
- According to Rule 173 See appendix- a person may pay compensation to the
injured party to the extent that his acts leads to that injury
-According to Rule 175 (a) - See appendix the person in charge of things that
requires supervisions shall pay compensations to the damages caused by this thing
unless he proves something else such as a sudden accident, act caused by the
injured person and force majeure.
Since the British Law has a persuasive influence over the Bahraini Law, Common cases
were used in this scenario.
Common Law:
- The Lord Atkins in 1932 developed the ' Neighbor principle' see appendix - people
who are affected by a person's act are expected to be his neighbors (i.e. Donoghue v
Stevenson Case See appendix-). Therefore, they are responsible for any acts that
injured their neighbors.
- Contributory negligence: people can pay a portion of the damages caused,
depending on factors that takes place in the accident. See Froom v Bucher Case in
Appendix.
- The "Volenti non fit injuria" Principle suggest that qualified people are fully liable
for their acts caused by their own negligence. See ICI v Shatwell case for more
information See appendix-.

Application:
1:
1.1 :
Experts in this field suggest riding the horse in close environment when using bitless bridle,
the horse must slow down, trot and canter. They also suggests to first practice the horse in a
closed environment (i.e. home ride or familiar routes are suggested). In addition, they
suggest to evaluate the horse in a progressive stage until the rider is confident that the
horse is under control. There is no specified time for each stage but the rider should
evaluate the performance of the horse accordingly. Dr Robert Cook states a 1% of risk when
using the bitless bridle for the first time with horses. In this case, the bitless bridle was just
fitted on the horse and Aziz take 15 minutes ride in a closed environment when he noticed
difficulty in controlling the horse in various stages. Therefore, damage is reasonably
foreseeable in this case as the horse might be out of the control of the rider at any time.
1.2:
A relationship between Jamil, an employee for service in OT, and Aziz, the customer, exists.
1.3:
Putting in mind ICI and Shatwell case, when the claimant is experienced in this field and has
been noticed for the danger of his acts the defendant is not responsible to pay damages for
unlawful act. Therefore, it is not fair to impose duty of care over Jamil. But in the second
scenario, he should insure safety and security to the customers. Therefore, it is fair and
justice and reasonable to impose duty of care over him.Therefore, duty of care on Jamil
exists in the situation.
2:
Aziz was an experienced jockey and Jamil has warned Aziz for not riding the horse for longer
distances. But, Aziz ignored Jamil's advice and he took the horse for a long ride According to
Article 175(a) there has been lawful act by the injured party which prevents him from
receiving any compensation. There is a serious harm in this case but it was not caused by the
duty of care. However, the second scenario suggests Jamil should insure safety to the
customers. Therefore, any negligence to this act leads to a breach of one of his duties.
3:
In the first scenario, there is no duty of care imposed on Jamil. But for the existence of Aziz's
negligence, the injury occurred. The second scenario imposes a duty of care on Jamil.
Thereafter, the injury that happened to Aziz was resulted from the negligence of Jamil in
maintaining safety to customers.
4:
Aziz is an expert jockey. He noticed some difficulties when he was riding the horse for the
first time. But, he persisted on riding the horse for a longer destination.
5:
5.1:
In this case, the main cause of the injury is carelessness. It did not arise from guilty mind.
5.2:

No, Jamil is an employee for a service. He is running an activity for specialist. Therefore he is
considered as a specialist who has independent contract with OT.
5.3:
Yes, he was there at the end of the practice session.
6:
No, he cannot claim damages from OT, because vicarious liability does not exists in this
scenario.
Conclusion:In conclusion, there are two options in this case. The first one is ' non volenti non
fit injuria' where Aziz cannot claim any damages from OT as the injury resulted from his
actions. However, it obvious that Jamil should insure the safety of the horse riders and take
the horse from Aziz in order to prevent him from taking the risk of riding the horse.
Therefore, the second option will impose 'contributory Negligence' on Jamil to pay a portion
of BD500.000 in accordance to articles 166 and 173.
Fatima's Case:
ICI Shatwell Case
Issue:
1) Was there a duty of care?
o 1.1) was the Tort reasonably foreseeable?
o 1.2) was there a Proximity between Fatima and Shereen?
o 1.3) is it fair, justice and reasonable to impose a duty of care on
Shereen?
2) Has there been a breach of duty?
3) Did the breach of this duty cause an injury?
4) IS there a vicarious Liability on OT?
o 4.1) was a tort or crime committed?
o 4.2) WasShereen an employee to OT?
o 4.3) Was Shereen acting in the course of employment when the
tort was committed?
5) Can Fatima Claim damages from OT?
Rule:
-

Civil code:
o Article 158, see Aziz's Scenario
o Article 160 See appendix- , suggests the liability is shared among different
people when they contribute into an injury.
o Article 161(a) See appendix-, puts the responsibility on the person who
makes unlawful acts to compensate the injured party by the loss suffered.
o Article 166, See Azizs scenario.
o Article 170 (a) and (c) See appendix- imposes a vicarious liability to minor,
people who are under 15 years old, on his/her supervisor at the time of
their supervision.
o
Article
173,
See
Aziz's
Scenario.

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Common Law:
o Contributory negligence, Froom v Bucher Case. See Aziz's case.

Application:
1:
1.1:
Yes, because Shereen was required to maintain a safe and secure environment to run the
activity. Her failure to maintain these components made Fatima's injury. Therefore, the
injury was reasonably foreseeable.
1.2:
Yes, Shereen, is the activity runner at OT, and Fatima is one of the customers or attendees.
1.3:
Although she does not have enough experience, she was supervising the activity. According
to Articles 170 (a) and (c) Fatima, who is seven years old, was under the supervision of
Shereen. Therefore, it is fair, justice and reasonable to impose the duty of care over
Shereen.
2:
Yes, there was serious harm in this case.
3:
Yes, Fatima suffered from major injuries.
4:
4.1:
Tort exist in this case because negligence in maintaining a safe and secure environment
caused Fatima's injury.
4.2:
Yes, although shereen collects money directly from the customers and she decides her
working hours. OT has a permanent contract with her. Therefore, Shereen is considered as
an employee to OT.
4.3:
She was running one of OT's activities when the injury happened.
Overall, Vicarious liability exists in this situation because Shereen has a contract of
employment with OT. In cases similar to this, the employer (OT) is responsible for any acts
caused by the employee.
5:
Yes, because vicarious liability over OT exists because Shereen is one of their employees.
Conclusion:In conclusion, although article 161(a) suggests that Shereen has contributed to
the Fatima's injury. However, she is not fully responsible for the whole injury because Fatima
was not wearing the seat belt during the accident time but she contributed through not
insuring safety conditions for the activity. Therefore, According to article 160 and
contributory negligence principle Fatima cannot claim full compensation. According to
(Articles 166 and 173) and Froom v Bucher case, She might claim (25%-40%) of the total

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damage from Fatima or OT. Fatima might sue OT instead of Shereen because she might not
have enough money to compensate her.

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APPENDIX
Part 1:

Bahrain.com,. (2014). Bilateral Trade Agreements. Retrieved 10 May 2014, from


http://www.bahrain.com/en/about-the-gulf/Pages/Bilateral-TradeAgreements.aspx#.U26Gzl6pUds

Ustr.gov,. (2013). Bahrain Free Trade Agreement | Office of the United States Trade
Representative. Retrieved 10 May 2014, from http://www.ustr.gov/tradeagreements/free-trade-agreements/bahrain-fta

DECREE LAW NO. (21) OF 2001 PROMULGATING THE COMMERCIAL COMPANIES LAW
Article 25:A General Partnership company is a company established by two persons or more
under a certain name, and in which the partners are jointly liable to the extent of their all
property for the companys obligations.
Without prejudice to the provisions of laws regulating self-employment professions, general
partnership companies may be formed regardless of its type among Bahraini or Non Bahraini
partners in accordance with the rules and guidelines decreed by the Minister of Commerce
and Industry.
Article 50:A limited partnership company is a company set up by one or more partners, who
shall be jointly liable for the companys obligations to the extent of all their property, and by
another or more partners, who have shares therein but are out of its management. The
latter partners are called sleeping partners and shall be liable for the companys obligations
only to the extent of their share in the capital.
Part 2:

Unilever (n.d.). Dove | Brands in action | Unilever Global. Retrieved from


http://www.unilever.com/brands-in-action/detail/Dove/292077/

Article 2 (I) (copyright law 2006) Protection under this Act is accorded to literary, artistic
and scientific works, merely by virtue of their having been created and with no need for any
formal measures, irrespective of the value, type or purpose of those works, or their form or
manner of expression. In particular,
protection includes the following works:
(i) Works of photography and similar works.
Article 5 (copyright law 2006) The author enjoys perpetual literary rights which are nonprescribable and inalienable. These are:
(a) The right to decide on the first publication of his work, and to designate the means and
timing of such publication.
(b) The right to have the work attributed to him; specifically, the right to have his name
placed on all copies of the work when that is possible in the customary manner.
(c) The right for his name to remain unknown, or to use a pseudonym.
(d) The right to prohibit any distortion, defacement, modification or infringement of his
work which could damage his honor or reputation.

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(e) The right to prohibit his work being put into circulation, or to withdraw it from
circulation, even if he has already surrendered his economic rights, if serious reasons arise
which justify such an action. In this case, the author must request the competent court to
issue a judgment to prevent his work being put into circulation, or to withdraw it therefrom.
If the court accepts the author's application it shall require him to pay adequate advance
compensation to the party to whom the rights have devolved, within a deadline established
by the court. If he fails to do so, the court's judgment shall be null. Alienation, either with or
without compensation, of any of the author's literary rights is invalid.
Article 36 (copyright law 2006) The economic rights laid down in this Act belong to the
employer, or to the party who appointed by the employer and in his interests undertakes to
create the work, performance or phonogram, if this is the result of implementing a contract
or a pledge to create the work, performance or phonogram, unless written agreement exists
to the contrary. The provisions of this article apply to civil and military State functionaries,
and to parties of equivalent status.
Article 70 (copyright law 2006) Anyone taking a photograph of a third party has no right to
publish, exhibit or distribute the original, or reproductions thereof, without the permission
of the party portrayed in the photograph, unless written agreement exists to the contrary.
Nonetheless, photographs may be published if they relate to events that take place in
public, official or public figures of local or international renown, or if the public authorities
have authorised such publication to serve the public good, on condition that the display or
circulation of the photographs does not infringe the honour, reputation or standing of the
person concerned. The party portrayed in the photograph may authorise its publication in
newspapers or other media, even without the photographer's permission, unless written
agreement exists to the contrary.
Article 64 (2) (copyright law 2006): Rather than requesting compensation to rectify the
harm (including the profits accrued by the violator as per the preceding paragraph), the
rightful party may, at any time before the case is decided, request compensation of between
500 and 9,000 dinars for each violation or forbidden action.
Article 37 (copyright law 2006): An author's economic rights are protected throughout his
lifetime and for seventy years beginning on the first day of the calendar year following the
year of his death, except where other provision is made in this subsection.
Article 3 (k, b, c) (trademarks law 2006):
(K): Marks that are identical or similar to a mark previously registered by others to be used
in distinguishing all or certain goods or services for which the mark was registered , or marks
that are similar to a mark previously registered by others which would create confusion to
the public, or marks the registration of which for other products and services may cause
diminishing the value of the goods or services distinguished by the mark previously
registered by others.
(C): Armorial bearings, flags ,public slogans, and other insignia belonging to the Kingdom ,
Arab or international organizations, or one of their agencies or any imitation of such
armorial bearings, flags, slogans or insignia.

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Article 1 (patent law 2004): In accordance with the provisions herein stipulated, a patent
shall be given for every invention that is new, involves an inventive step and is industrially
applicable whether it is related to new industrial products imported or locally produced-,
industrial methods or a new application of already known industrial methods. The granted
patent shall be given independent of any modification, improvement or addition introduced
by a previously patented invention, and it shall be granted to the one who affected the
modification, improvement or addition in accordance with the provisions of this law.
Article 7 (patent law 2004): The right of a patent shall be granted to the inventor or the one
who has acquired the rights thereof. Should the invention be a result of joint efforts of a
number of persons, the ownership of the patent shall be equally assigned to them, unless
otherwise agreed. He shall not be considered as a participant in the invention that whose
role was confined to the mere implementation thereof. Should there be more than one
applicant for the patent, each independent form the other, the right to a patent shall be
given to the first one to apply.
Article 11 (B) (patent law 2004): The patentee is entitled by virtue of the subject patent the
right to prohibit others from any of the following actions without prior permission:
1- Manufacturing, exploiting, using, offering for sale or selling the patented product or
importing the same for any of the aforementioned purposes, should the subject patent be a
product.
2- Using the manufacturing method, using the product directly made through this way,
offering it to sale, selling or importing the same for any of the aforementioned purposes,
should the subject patent be a method for manufacturing a product.
Article 22 (patent law 2004) Ownership of a patent may be transferred partly or fully with or
without compensation including inheritance. It may also be licensed for exploitation and
may be mortgaged and may be decided on in terms of the utilization thereof. Without
detriment to the provisions pertaining the sale and mortgage of commercial stores, the
assignment, mortgage or utilization determination thereof shall not constitute an argument
against others before the same being recorded in the register and the publication thereof in
the manner prescribed by the Executive By-laws.
Part 3:
BAHRAINI CIVIL LAW:
Article 158:Every fault which causes injury to another imposes an obligation to make
reparation upon the person by whom it is committed.
Article 160: When several persons are responsible for an injury, they are jointly and
severally liable to make reparation for the injury. The liability will be shared equally between
them, unless the judge fixes their individual share in the damages due
Article 161:
(a) An injury caused by the person responsible for the unlawful act for which he shall
make reparation shall be determined by the loss suffered and the loss of profit so
long as this is the natural result of the unlawful act.
Article 166:If the wrongful act of a person contributes with the fault of the aggrieved person
in causing the injury, he shall, not be liable to make reparation except to the extent of the

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effect of his wrongdoing to the occurrence of the injury in proportion to the fault of the
injured person.
Article 175:
a) Whoever is in charge of a thing whose supervision requires special care for
preventing injury, is liable for damage caused by such thing, unless he shows that
the damage was due to a cause beyond his control due to a force majeure, sudden
accident, act of the injured person or act of a third party.
Article 170
a) A person who is, by law or by agreement, entrusted with the supervision of a person
who, on account of his minority or his mental or physical condition, requires
supervision, is liable for damages for injuries caused to a third party by unlawful acts
of the person under his supervision. The responsibility exists unless he proves that
he has exercised his supervision duty as he should or that the injury was inevitable
even if he properly carried out this duty.
b) The supervision of a minor is the responsibility of his school teacher or of the person
under whose supervision he works during the time he is under the case of such teacher
or of such person under whom he works
ICI v Shatwell(1964, HL)
The claimant shot firer was injured when helping to carry out a controlled explosion. The
claimant was
experienced in the work and had encouraged the team leader to use inappropriate
equipment.
Held: the claimant had consented to the risk of injury by acting recklessly in regard to his
own safety.
The Neighbour Principle:
In these consumer conscious days it comes as a surprise that prior to the decision in
Donoghue v Stevenson a person in Mrs Donoghues position had no rights in tort. Before
1932, liability in negligence was restricted to harm caused by defective products which were
dangerous in themselves, such as guns or explosives. Donoghue v Stevenson established a
general principle of product liability in negligence known sometimes as the neighbour
principle. This is because Lord Atkin said that a duty was owed only to ones neighbour,
which in law means: persons who are so closely and directly affected by my act that I ought
reasonably to have them in my mind as being so affected when I am directing my mind to
the acts or omissions called into question.
Contributory negligence
Under the Law Reform (Contributory Negligence) Act 1945, the court may reduce the
damages
payable by the defendant if the claimant has failed to take reasonable care for their
own safety and so aggravated the damage suffered. In cases where failure to wear a seat
belt has aggravated injuries to a claimant it is usual to reduce damages by 25% (Froomv
Butcher (1975, CA)). The defence may succeed where consent fails and is applicable to any
tort not based on intentional behaviour, e.g. deceit.

Additional information:

The agreed expert evidence [This has been complied by experts from previous cases
concerning liability with regard to horses.]

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The experts had set out the extent of their agreement and disagreement on relevant
issues. They were in agreement as follows:
"We agree that both Claimant and Defendant should have known that all horses can
be unpredictable on occasions and that such unpredictable behaviour can include
running away/bolting and that riding is a risk sport and the risk is that the rider may
be unbalanced and fall or in some other way receive injury
We agree that the fitting of a bitless bridle to allow a horse to be ridden
while his sore mouth healed was a sensible decision
We agree that the only way to tell whether a horse will go well in a bitless
bridle is by trial. It will be important that the horse's first ride is in the
relatively controlled environment of a riding arena or some such enclosed
area in case the horse is difficult to control.
We agree that quite how long that the horse should be ridden in the
enclosed area must be a matter of judgment but the horse must show that
he will slow down and stop from walk, trot and canter. He should then be
ridden outside of the area on routes and in areas with which he is familiar
and show that he will slow down and stop from walk, trot and canter. When
cantering is first practised this should be in a place and direction where the
horse will not be inclined to charge off, for instance going away from home
or in an area where the horse is familiar with being ridden in that area.
We agree that it is common sense that the horse is taken progressively
through each stage and that the next stage is only moved on to when the
rider is confident that the horse is under control. It is not possible to
stipulate a length of time for each stage. The length of time for each stage
must be a matter of judgment.
We agree that the claimant as the rider should have been in a better
position than the Defendant to assess how Star Gazer was responding to
being ridden in the bitless bridle."
The experts produced a manual called The Bitless Bridle by Dr Robert Cook. It
contained these words of caution:
"When first introduced to the bitless bridle, it sometimes revives a horse's
spirits with a feeling of 'free at last'. Such a display of exuberance will
eventually pass but be prepared for the possibility even though it occurs in
less than 1% of horses. Begin in a covered school or small paddock rather
than an open area. Consider preliminary lungeing [a long rope used to hold
a horse while it is being trained] or a short workout with in the horse's
normal trail. These and other strategies familiar to horse people can be used
to reduce the small risk of boisterous behaviour."

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