Law and Contract

Q1. Negligence

Negligence refers to reasonable care, or specifically the failure to demonstrate reasonable

care where an assumed duty of care towards another is assumed. A duty of care is
assessed by a 3 stage test, devised from case Donoghue v Stevenson. The first element of
criteria to be assessed is to look at the relationship between the two parties involved, the
second is to consider how foreseeable harm may have been to the person or situation and
the last, is to assess whether it’s just and fair to enforce the duty of care on the
individual/company.

Donoghue v Stevenson (1932) AC 562 was really the bench mark for creating guidance for
assessing negligence upon a person/company. Up until this point Heaven V Pender (1883)
11 QBD 503 where by Master of Rolls, William Brett, 1st Viscount Esher first suggested a
wider duty of responsibility to persons who might be injured where ‘ordinary care and skill’
was not exercised, the decision from the house of Lords (Heaven V Pender (1883) 11 QBD
503 ) was that the owner of the property did have a duty of care towards invitees
(employees who were only on the land ultimately for the economic benefit of the owner).
Later adopted and specified by Lord Atkin in the Donahue v Stevenson (1932) whereby
existing laws where too wide concerning negligence; as Mrs Donahue didn’t have a direct
link towards the manufacturer as the product was bought by her friend, so there was no
contractual agreement between Mrs Donohue and Stevens (the manufacturer). Lord Atkin
introducing ‘the neighbour principle’ taking MR William Brett’s intro and specifying it by
saying ‘’ the concept of negligence is based upon “a sentiment of moral wrongdoing (for)
which the offender must pay.” Not every moral wrong can have a practical effect in law so it
must be limited to taking “…reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. ‘‘ The neighbour principle’ is the
relationship between parties Lord Atkin said ” A neighbour is a person so closely connected
with and directly affected by (proximate to) my act (or omission) that I should have had
them in mind when I committed the act (or omission). It would be a grave defect in the law
if a consumer could not claim in circumstances such as a manufacturer negligently mixing
poison into a drink.” After this case it was seen that the 3 stage test mentioned above must
be key in assessing a duty of care to determine negligence. This is tort to determine
damages, and each case is seen as different and so must be individually assessed to
determine the type of damages involved after negligence has been proven.

http://en.wikipedia.org/wiki/Heaven_v_Pender

http://www.safetyphoto.co.uk/subsite/case%20abcd/donoghue_v_Stevenson.htm
Contributory negligence is a defense in common law used to claim against negligence.
Contributory negligence is only awarded if the defendant only contributed to the claimant’s
direct injuries. Damages will be partially paid as the defendant was not fully liable for all
the injury’s occurred under s1 Law Reform (Contributory Negligence act 1945).

http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&searchEnacted=0&e
xtentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&PageNumber=
0&NavFrom=0&parentActiveTextDocId=1088684&ActiveTextDocId=1088687&filesize=6522

links date: 20th/Mar/2010

Continued

Where a professional is involved the reasonable person involved will be a person/company

with the usual level skill for the duty involved as in Bolam v Friern Hospital Management
Committee (1957) 2 All ER 118, professional neglect will be seen as a breach of duty. This
will be assessed on whether the defendant could reasonably foresee a risk to the claimant
as in case Overseas Tank ship UK Ltd v. Mort Docks and Engineering Co Ltd, The Wagon
Mound No. 1 (1961) 1 All ER 404. Liability for negligence isn’t just a civil matter, but
depends on the circumstances and duty of care assessment to establish the liability
involved and specific damages, as sometimes the defendant may not be liable for the
claimants injury’s as in Baker v. Willoughby (1969) 3 All ER 1528 or Jobling v. Associated
Dairies Ltd (1981) 2 All ER 752.

http://en.wikipedia.org/wiki/Bolam_v_Friern_Hospital_Management_Committee

http://en.wikipedia.org/wiki/Overseas_Tankship_(UK)_Ltd_v_Morts_Dock_and_Engineering
_Co_Ltd

links date: 21st/ Mar/2010

Q2. Remedies

In this case a clear contract has been made between both parties and the defendant (Volvo
Enterprise Ltd) is clearly in ‘Breach of Contract’ for the delivery of the furnace extractor. The
remedies available would be to seek compensatory damages which are paid to
compensate a claimant’s for loss, injury and harm suffered as the ‘causation’ is none
disputable with this case. Arbitration is an option as the case aspects are obvious and can
be settled out of court using the help of a Forensic Account (Recommended for all aspects
of remedy) taking into account that all aspects for future contract damages where
foreseeable, but if correct sums cannot be agreed on. We can seek to recuperate for
‘Expectation Damages’ or the Quantum/Measure of Damages (breach of contract duty ‘ex
contractu’/ breach of contract tort duty ‘Ex delicto’) which are damages recoverable for
‘Breach of Contract’. ‘Expectation Damages’ are recoverable by Incidental and
consequential damages (Special Damages) so will provide a means of putting the company
in the position it would have been in if the contract had been fulfilled as first agreed (which
does give the option to recoup for damages for lost profits). I would recommend that JTC
look to recuperate firstly through Arbitration seeking full damages including lost profits
accrued previous and after June 1st up until first Alternative Dispute Resolution letter is
sent, with possible penalties thereafter. And If a sum cannot be agreed on within a
specified date I would advise to pursue with legal proceedings to recuperate for
‘Expectation Damages’ as I feel the case would stand a good chance of success.