ACNB_A2_F08-032

Banking Academy of Vietnam Assignment Front Sheet Qualification Unit Code / Unit number and title Pearson BTEC Level HND Diploma in Business (Accounting) Y/601/0563 Unit 5: Aspects of Contract and Negligence for Business Student name (vn) Student name (en) Student ID Assessor name Phạm Gia Khánh Kevin F08-032 John M Andre Date issued Hand in deadline 21 October 2016 Assignment title Submitted on 28 November 2016 Negligence In this assessment you will have opportunities to provide evidence against the following criteria Indicate the page numbers where the evidence can be found Learning Outcome Learning outcome In this assessment you will Assessment Task have the opportunity to Criteria present evidence that shows no you are able to: Contrast LO3 LO4 liabili ty in tort with contr actua l liabili ty Be able to apply princi ples of liabili ty in negli genc e in busin ess situat ions Evidence (Page no) 3.1 Contrast liability in tort with contractual liability 3.2 Explain the nature of liability in negligence 3.3 Explain how a business can be vicariously liable 4.1 Apply the elements of the tort of negligence and defences in different business situations 4.2 Apply the elements of vicarious liability in given business situations Student declaration I certify that the work submitted for this assignment is my own I have clearly referenced any sources used in the work I understand that false declaration is a form of misconduct Student signature: ACNB A2 Date: Banking Academy of Vietnam In addition to the above PASS criteria, this assignment gives you the opportunity to submit evidence in order to achieve the following MERIT and DISTINCTION grades Grade Descriptor Indicative characteristic/s M1 Identify and apply strategies to find appropriate solutions An effective approach to study and research has been applied M2 Select / design and apply appropriate methods / techniques Complex information has been synthesised and processed M3 Present and communicat e appropriate findings The appropriate structure and approach has been used D1 Use critical reflection to evaluate own work and justify valid conclusions Self-criticism has been shown regarding analysis and recommendations D2 Take responsibility for managing and organising activities Activities have been managed D3 Demonstrate convergent / lateral / creative thinking Innovative and creative thought have been applied Contextualisation To achieve M1, you will have participated actively (showing you have done the recommended reading) during in-class discussions (Task 1) To achieve M2, you will have shown that you understand the complexities of how real cases are judged and how the factors used in judgment are interconnected (Task 1) To achieve M3, you will have presented the legal opinion document in a professional manner (proper formatting, proper use of referencing, depending only on accepted academic references and avoided referencing any public websites, using a proper structure, etc.) and appropriate for those familiar and unfamiliar with the subject of negligence Your opinions will be supported with proper academic and legal evidence (Task 1) To achieve D1, you will have evaluated your judgements against existing UK or Commonwealth case law (Task 1) To achieve D2, you will have included evidence of relevant, wide reading of academic sources within your legal opinion document (Task 1) To achieve D3, you will have used innovative and create thought with regards to analysis and legal interpretations (Task 1) ACNB A2 Banking Academy of Vietnam Assignment Brief Qualification Pearson BTEC Level HND Diploma in Business (Accounting) Unit number and title Unit 5: Aspects of Contract and Negligence for Business Assessor name John M Andre Date issued 21 October 2016 Hand in deadline 28 November 2016 Assignment title Negligence Scenario – Home furnishings store Bob Smith has owned a home furnishing store in Newcastle for years One day, in order to increase sales, Bob decided to hire a bouncy house, balloon artist, a face painter, and a few others in order to attract families to the store The idea was if whole families come, they can make a decision to buy new furniture faster Jack and Jill, with their year old son Norman, went to the store for the event While there, Jack and Jill were browsing the couches Norman was running around as usual While Jack and Jill were discussing the possibility to buying a beautiful new couch for £3,000, Bob noticed that Norman tripped over a power cord of a lamp The lamp fell and knocked over several items (including a letter opener, some scissors, and an open bottle of fish sauce) on a desk onto another couch As a result, the other couch was ruined That ruined couch retails for £4,000 and cost Bob £2,500 Bob went to Jack and Jill and showed them what Norman did Jack said “Oh, I am so sorry It will not happen again.” Then Jack scolded Norman in front of Bob Bob said that there was still the issue of the couch Norman destroyed Bob said he would like Jack to buy that couch for £4,000 because they must take responsibility for their son’s actions Jack responded, “You invite us here and then you want us to pay? Who leaves fish sauce open on a desk in Newcastle? This is not Vietnam We refuse to pay If you want, you can try to sue us but you will lose Good day to you sir!” Jack grabbed Jill and Norman and they all walked to their car and drove away For Bob, £4,000 is a lot of money He does not just want to lose this money because someone cannot control their kid Bob is planning on suing Jack and Jill for Norman’s negligence ACNB A2 Banking Academy of Vietnam Task (LO 1: 3.1, 3.2, 3.3, 4.1, 4.2 and M1, M2, M3, D1, D2, D3) You have been asked to prepare a legal opinion for Bob Your advice should include what Bob should You should clearly explain the relevant tests (outcome 3.2 and 3.3) that the judge would normally apply in negligence and vicarious liability cases like this one and what the results of those tests would be in Bob’s case against Jack and Jill (outcome 4.1 and 4.2) You should also explain if Bob has any other options to get some money Your legal opinion document should clearly explain the difference between liability in tort and liability under contract (outcome 3.1) You should use the details of the situation Bob is dealing with (including hypotheticals) to make the points very clear to him Remember, Bob does not understand the law very well, so you should help him understand how he can make his own determinations in the future To achieve M1, you will have participated actively (showing you have done the recommended reading) during in-class discussions To achieve M2, you will have shown that you understand the complexities of how real cases are judged and how the factors used in judgment are interconnected To achieve M3, you will have presented the legal opinion document in a professional manner (proper formatting, proper use of referencing, depending only on accepted academic references and avoided referencing any public websites, using a proper structure, etc.) and appropriate for those familiar and unfamiliar with the subject of negligence Your opinions will be supported with proper academic and legal evidence To achieve D1, you will have evaluated your judgements against existing UK or Commonwealth case law To achieve D2, you will have included evidence of relevant, wide reading of academic sources within your legal opinion document To achieve D3, you will have used innovative and create thought with regards to analysis and legal interpretations Evidence checklist Task Summary of evidence required by student Prepare legal opinion document advising Bob about his situations PRESENTATION ACNB A2 Evidence presented Banking Academy of Vietnam The assignment should have a cover page that includes the assignment title, assignment number, course title, module title, Lecturer name and student’s name Ensure that authenticity declaration has been signed by typing your name This is an individual assignment You are to submit the assignment in the electronic submission system and also email your legal opinion document (to Students@JohnMAndre.com) before the submission deadline in DOCX format with the filename ACNB_A2_F01-001.docx (where F01-001 is your student ID) Failure to properly submit may cause you to fail all outcomes A fully typed up professionally presented legal opinion document Use 12 point Calibri font Your legal opinion document should be word-processed and should not exceed 2,500 words in length Word count limit includes only the introduction, body, and conclusion Assignment should include an executive summary The assignment should contain a list of any references used in the report 10 Use the Harvard referencing law/regulation/case referencing system and standard NOTES TO STUDENTS FOR SUMMISSION • Check carefully the submission date and the instructions given with the assignment Late assignments will not be accepted • Ensure that you give yourself enough time to complete the assignment by the due date • Do not leave things such as printing to the last minute – excuses of this nature will not be accepted for failure to hand-in the work on time • You must take responsibility for managing your own time effectively • If you are unable to hand in your assignment on time and have valid reasons such as illness, you may apply (in writing) for an extension • Failure to achieve a PASS grade will results in a REFERRAL grade being given • Take great care that if you use other people’s work or ideas in your assignment, you properly reference them in your text and any bibliography ACNB A2 Banking Academy of Vietnam • NOTE: If you are caught plagiarizing, the University policies and procedures will apply ACNB A2 Banking Academy of Vietnam Achievement Summary Qualification Pearson BTEC Level HND Diploma in Business (Accounting) Assessor name Unit Number and title Unit 5: Aspects of Contract and Negligence for Business Student name Criteria Reference To achieve the criteria the evidence must show that the student is able to: John M Andre Achieved? (tick) LO 3.1 Contrast liability in tort with contractual liability 3.2 Explain the nature of liability in negligence 3.3 Explain how a business can be vicariously liable LO 4.1 Apply the elements of the tort of negligence and defences in different business situations 4.2 Apply the elements of vicarious liability in given business situations Higher Grade achievements (where applicable) Grade descriptor Achieved? (tick) Grade descriptor M1: Identify and apply strategies to find appropriate solutions D1: Use critical reflection to evaluate own work and justify valid conclusions M2: Select/design and apply appropriate methods/techniques D2: Take responsibility for managing and organising activities M3: Present and communicate appropriate findings D3: Demonstrate convergent/lateral /creative thinking ACNB A2 Achieved? (tick) Banking Academy of Vietnam Assignment Feedback Formative Feedback: Assessor to Student Action Plan Summative feedback Feedback: Student to Assessor Assessor Signature Date Student Signature Date FOR INTERNAL USE ONLY VERIFIED DATE YES NO : VERIFIED BY : NAME ACNB A2 : Banking Academy of Vietnam Contents ACNB A2 Banking Academy of Vietnam Abstract: This report apply both negligence and vicarious liability for examining the case of Bob Besides, it indicate the different between liability in tort and contractual liability The purpose of the research is find most suitable solution for Bod case This research also apply test for each case and specify detail in the scenario The research indicate a fairly view for reader to understand more about the situation Bod have to face However, by limitation of time, word limit and resources, this research may not bring adequately about the course decision of the Bob’s case ACNB A2 10 Banking Academy of Vietnam Introduction This research will give the reader a fair view of the Bob case with examining specific detail in case By using tests for both negligence case and vicarious liability, the research will decide whether Bob can receive money or not Besides, this report also specify the different between contractual liability and liability in tort, and apply to the Bob case ACNB A2 11 Banking Academy of Vietnam Negligence  • In Negligence case, the tort has three main elements: The defendant must owe the claimant a duty of care The defendant must breach that duty of care That failure must cause damage to the claimant Duty of Care: The course will apply Caparo test (Elliott, 2009) to decide whether duty of care exist: Was there a relationship of proximity between claimant and defendant? Jack and Jill must take reasonable care for Norman to prevent inflicting injury, intentionally or negligently on Bod (Caldwell v Zaher (1962) However, they let Norman run as usual in the store, so it may cause dangerous situation occur Therefore, it could harm to Bob - Was the damage caused reasonable foreseeable? When Norman was running as usual Therefore, he was lack of reasonable care for his action So he may negligently commit several damage Thus, Norman tripped over a power cord of a lamp Then the lamp fell and knocked over several items (including a letter opener, some scissors, and an open bottle of fish sauce) on a desk onto another couch (Scenario, 2016) - Is it just and reasonable to impose a duty? To apply this test, two others test must satisfied Bob’s case meet the requirement of foreseeability and proximity Jack and Jill lack of supervision and control for Norman’s act Then it is just and reasonable to impose a duty of care • Breach Duty of Care : - Special characteristics of the defendant: In this case, Norman was too young (7 years old) In The common practice in England, children were routinely living out of the house under the supervision of other adults before age ten - Size of the risk: Bob is the owners of the store This means Bob’s responsibility is limited to making reasonable efforts to avoid foreseeable harm In other words, Bob has to make the property safe from probable dangers (injuryclaimcoach, 2016) But in this case, he let many dangerous items (including a letter opener, some scissors, and an open bottle of fish sauce) near the couch Therefore, it have many chances of damage occurring  Jack and Jill refused to pay for the couch After that, they driven away Therefore, they breached the duty of care • Damage: - As can be seen, Norman’s tort caused physical damage to Bod property (couch), so caused economic loss • Causation: - The “but for” test: Due to lack of control and supervise Norman carefully of Jack & Jill, they let Norman running as usual So the damage for Bob happen - ACNB A2 12 Banking Academy of Vietnam Remoteness of Damage: There are two tests for remoteness in tort: - The direct consequence test: Norman was tripped over a power cord of a lamp Then the lamp fell and knocked over several items (letter opener, scissors, and an open bottle of fish sauce) which ruined the couch Although Norman action was not directly caused the couch ruined, Jack and Jill still were liable because they have not taken reasonable care to Norman according to the Caldwell v Zaher (1962) case - The reasonable foreseeability test: Jack and Jill will be liable for damage which was reasonably foreseeable at the time they breached their duty: “control Norman properly “ (according to the Caldwell v Zaher (1962) case) • Defences: - Contributory negligence: Both parties have equally argument to blame For Bod, he does not cause the couch harm, but contributes to the damage occurs (not making property safe from probable dangers)For Jack & Jill, lack of reasonable supervision for Norman According to the Law Reform (Contributory Negligence) Act 1945, Bod received 50% of the damages: £2,000 • ACNB A2 13 Banking Academy of Vietnam Difference between liability in tort and liability under contract Liability in tort Contractual liability Definition: Tort liability is the obligation of a person to repair the damage generated from an illegal act (Todea, 2006) Definition: The liability of the defendant to repair the damage caused to the claimant by the failure to fulfil the requirement of a valid contract (Todea, 2006) The defendant has the obligation to cover both the predictable and the unpredictable damages, direct or indirect The defendant is liable only for damages foreseeable upon the citing of the contract A formality not necessary in the case of tort liability Under procedural aspect, the commitment is subject to the citing the contract Tortfeasor may be hold liability for the damages which may be arise in the future The parties of contract only hold the liability based on the element of contract • If Bob’ case was liability in tort Then, when Norman’s tort caused damage for Bod Norman’s family have to compensate for Bod So Jack and Jill must pay £2,500 because it is the reasonable price since they have not purchase it (with the retails price for £4,000) ACNB A2 14 Banking Academy of Vietnam Vicarious liability case: Vicarious liability means parent is liable for damages caused by child by negligent or wrongful act Therefore, I will examine this case from the Court of Appeal in JGE [2012] EWCA Civ 938 in July 2012 and the UK Supreme Court in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 in November 2012 Then I apply two-stage test: Is there a relationship between the defendant and the tortfeasor that is capable of giving rise of giving rise of vicarious liability (the relationship requirement): • According to the Caldwell v Zaher ( 1962) case, it indicated that the present of parent in under a duty to exercise reasonable care to prevent his minor child from inflicting injury, intentionally or negligently, on others This duty of parental discipline arises when the parent knows or should know of the child’s propensity to commit tortious acts In this case, Jack and Jill let Norman run as usual They should know that Norman may negligently cause damage on others Then, they should take a reasonable care to control and supervise Norman carefully - Evidence of a close connection between that relationship and the act or omission of the tortfeasor (the close connection requirement): • In position of Norman, it was held that he was only years old Besides, In England, children under 10 years old will not liable for their tort (McIvor, 2015) • When Norman run as usual, it may be caused potentially dangerous situation However, the several items including an open bottle of fish sauce, some scissors, a letter opener is not reasonable It means the boy’s act is not directly caused the couch ruined, but these dangerous items - ACNB A2 15 Banking Academy of Vietnam - Conclusion: Through the analysis above, Bod’s damage was reasonable foreseeable for both party: Bod and Norman’s family For Bod, he is the owner of the store, so he must take responsibility to make property safe from proper dangers because of dangerous items like opening fish sauce, and scissors was placed near the couch Then, these items was highly possible fall to the couch Besides, Jack & Jill, also take responsible for supervising their child properly Therefore, both of parties have equal claim Then, Both can received 50% of damage: £2,000 - ACNB A2 16 Banking Academy of Vietnam Reference - https://casetext.com/case/caldwell-v-zaher Elliott, Catheriner; Tort Law Elliott (2009) Mcivor, Dr Claire; Reining in Vicarious Lability (2005) Todea Al, Oroian I., L Holonec; Contractual liability and tort liability (2006) ACNB A2 17