Aspects of Contract Negligence for Business Assignment 1 BTEC Nguyen Huu Phong 2017 tại University of Greenwich Viet Nam, đây là một trong những môn rất quan trọng và cần thiết cho những người muốn theo nghành businness cụ thể là human resource management như mình. Bài assignment này được mình làm tại trường. Các bạn có thể xem và tham khảo nhưng lư
ASSIGNMENT FRONT SHEET Qualification BTEC Level HND Diploma in Business Unit number and title Unit 5: Aspects of Contract and Negligence for Business Assignment due Learner’s name Nguyễn Hữu Phong Assignment submitted 3/05/2017 Assessor name NGUYEN CHI THANG Learner declaration: I certify that the work submitted for this assignment is my own and research sources are fully acknowledged Learner signature Date Grading grid P3.1 P3.2 P3.3 P4.1 P4.2 M1 M2 M3 D1 D2 D3 Assignment title Aspects of Liability in Negligence in Business context In this assignment, you will have opportunities to provide evidence against the following criteria Indicate the page numbers where the evidence can be found Assessment criteria Expected evidence Task no Assessor’s Feedback LO3 Understand principles of liability in negligence in business activities 3.1 Contrast liability in tort with contractual liability Achieved Point out how liability in 1.2 negligence tort differs from tort contractual liability Not achieved Provide brief explanation of 3.2 Explain the nature of liability in negligence specific elements of the tort of negligence, including duty of care; breach of duty; damage– causation and remoteness of damage; personal injuries; damage to property or economic loss Achieved 1.1 Not achieved Explain definition of vicarious 3.3 Explain how a business can be vicariously liable Achieved liability Explain how a business can be vicariously liable 2.1 Not achieved LO4 Be able to apply principles of liability in negligence in business situations 2 Identify general actions to an action in the tort of negligence and give brief explanation of each of them List the sort of remedies in the 4.1 Apply the elements of tort of negligence and give brief the tort of negligence and explanation of each of them defenses in different business Explain the differences between situations defenses and remedies in the tort of negligence Conclude whether your company are subject to negligence compensation Achieved 1.2 Not achieved 4.2 Apply the elements of vicarious liability in given business situations Explain the concept of vicarious liability and identify situations vicarious can occur, i.e in the course of employment or in agency Analyze the required elements for vicarious liability that must be presented in each situation Based on the selected cases, make conclusion vicarious liability apply on each particular case, i.e vicarious liability and employment, vicarious liability and agency, vicarious liability and independent contractor Achieved 2.2 Not achieved Assessment criteria Merit descriptor No.1 (M1) Expected Evidence Identify and apply strategies to find appropriate solutions Merit descriptor No.2 (M2) Select and design Feedback (note on Merit/Distinction if applicable) Achieved Not achieved Achieved appropriate techniques Not achieved Merit descriptor No.3 (M3) Present and communicate Achieved appropriate findings Not achieved Distinction descriptor No.1 (D1) Achieved Use critical reflection to evaluate own work and justify valid conclusions Distinction descriptor No.2 (D2) Not achieved Achieved Take responsibility for managing and organizing activities Distinction descriptor No.3 (D3) Not achieved Achieved Demonstrate convergent/lateral/creative thinking Not achieved Summative feedback Assessor’s Signature IV Grading Check: Date Comments if any: Agree Disagree Modify grade to IV Signature Date 6 Contents Introduction LO3 Understand principles of liability in negligence in business activities 3.1 Contrast liability in tort with contractual liability 3.2 Explain the nature of liability in negligence 11 3.3 Explain how a business can be vicariously liable 12 LO4 Be able to apply principles of liability in negligence in business situations 4.1 Apply the elements of the tort of negligence and defenses in different business situations 12 4.2 Apply the elements of vicarious liability in given business situations 13 Conclusion 14 References 15 7 Introduction In business, it occurred many cases unplanned as something inevitable, these situations influence and cause damage to the parties involved To control and solve it, we need to grasp and understand principles of liability in negligence in business activities These factors will help us statistics and analysis clearly are situations to solve problems in the best way In this report, I will raise the concept and theory of tort law and those situations where the parties involved affect each other when the mistake and damaging to the interests of others I will analyze the theory and apply that theory to situations in order to see clearly the situation and the parties must take responsibility and compensate the damage LO3 Understand principles of liability in negligence in business activities 3.1 Contrast liability in tort with contractual liability The contract is a commitment agreement between two or more parties (legal entities) to or not to a certain task in the framework of the law The contract is usually associated with the project, in which a party to the agreement with the other party of the project or part of the project for themselves the contract may be the civil agreement for economy or society The contract may be made in writing or by word of mouth can be the witness, if the breach of contract or not according to the commitment of the two parties will jointly to court and the loser will bear all the cost According to Quora stated that:” A tort is a wrongful act that injures or interferes with another's person or property A tort case is a civil court proceeding The accused is the "defendant" and the victim is a "plaintiff." The charges are brought by the plaintiff If the defendant loses, the defendant has to pay damages to the plaintiff.” Example: In 2005, a police officer in New York City named John Florio had broken teeth, tearing her mouth and throat torn when chewing broken glass pieces hit in Big Mac of McDonald's food store After that, the culprits were discovered, Albert Garcia, an employee of McDonald's has jail in 18 years, who have deliberately put the broken glass on the pie McDonald has paid 5.5 million dollars compensation to Florio, while Garcia was accused of attacking police in a serious way 8 Causation: Any damage is the cause of it Possible causes stemming from misconduct There are many causes of damages but must search out and clearly identify the main cause leading to the damage Breaking the chain: The series went from original cause leads to damage must be considered in a general way, learn all the sources of the cause of the damage and determining the cause would be the direct cause There are the basically types of tort: • Trespass: it is the illegal infiltration behavior of a party to another party in any case for anything other party Trespass occurs with types of is human, property, land For human is the unlawful detention, vi cave assault, assault, for the property is misappropriated assets of other unauthorized people and for the land's constitute the illegal land use not permitted by the law Example: Mr.A and Mr B have a problem with the general land using, Mr.A caught Mr.B's daughter to force Mr B concessions and accept defeat in the dispute • Nuisance: Is the nuisance, disrupting and discomfort of a party to the other party Example: A family party often extends to the late, large music affected everyone around • Defamation: it is a false statement that it wrong, affecting the credibility, reputation, honor of the individual or the organization Example: Mr.A open a cake shop and Mr B is also opening a cake shop beside, Mr.A often tell clients that Mr.B's store unhygienic and poor quality of raw materials, while Mr.B's store completely ensure that all standards of hygiene and quality • Negligence: an individual or organization fails to comply with an obligation to carefully impair, damage to other people Example: A home repair and shield are supposed to cover the surrounding area to not affect to other parties around However, due to the subjectivity does not cover the back of the house leads to the construction materials from falling broke windows of cars besides • Liability: Joint in liability: the two or more people responsible for causing damage to another party Example: Mr.A, Mr.B, Mr.C together to open coffee shop in the same streets and compete with each other However, because of the right strategy and attracted many more customers, so Mr.A coffee shop shilling is more people to drink, this leads to Mr.B and Mr.C affected sales Mr.B and Mr.C has linked together to smash Mr.A In one afternoon Mr.A sat before his coffee shop, Mr.B and Mr.C throw paint on and hit on Mr.A hand However, Mr.A was taken car number of Mr.B and show it to the police investigation After 9 investigating and found Mr.B and Mr.C conspirators should have conducted process Mr.B and Mr.C must compensate for the damages and not re-offending Several or proportionate in liability: just as the Joint but in this case, the level of responsibility depending on the level of errors caused by the parties Example: under the laws in Vietnam, the nightclub was not open to 0.am midnight However, A nightclub opened to 3.am and Mr.A playing time to close the door and drunk He was still driving the car and the cops catch Nightclub bear 20% and Mr A bear 80% in the case of Mr A Strict liability: responsibility put on the parties own the dangerous sources capable of causing damage to other people Vicarious liability: it is the responsibility that the head of the management and organizational property be subject instead of the employee when the employee causes damage Example: accident of Phuong Trang driver but the responsibility first by the Phuong Trang Company before processing to the driver caused the accident Compare contract law and tort law: Similarities: Contract laws and tort laws share many similarities Both problem solving and handling violation according to the regulation, the parties concerned must compensate the damages as caused damage or adversely affect other stakeholders Differences Relationship Damages Liability 10 Contract Liability Clearly defined in the contract The offending party will take responsibility and compensation as specified Damage primarily to compensation and the related financial impact Liability in Tort No regulations contract and no The damage affected property, health, benefits, The damage is not just in the financial side The offending party and not The responsibility belongs to done right under the two or more people causing provisions of the contract damage, liability could relate to the other side of the offending custom levels of the party The company, the head of the 10 stand-out responsibility for who directly caused the damage 3.2 Explain the nature of liability in negligence According to Rotlaw stated that: “Negligence occurs when a person uses less than reasonable care to protect others from harm Most personal injury and similar tort cases are based on a claim that one person’s negligence has caused another’s injury.” A negligence case has some elements: Duty of care The duty of care is a standard in the law of negligence It is a duty owed to use reasonable care; in other words, one must act as a reasonable person It is a duty to act the way a responsible person should act in a given set of circumstances, and a deviation from this could result in negligence Example: mobile phone design engineer of Samsung must everything thoroughly if not explosive battery error occurs same as Note in 2016 If it happens again, they must bear all the responsibilities There are factors: Foreseeable, Proximity, Reasonable Breach of duty of care According to Rotlaw state that: “A breach of duty occurs when one person or company has a duty of care toward another person or company, but fails to live up to that standard A person may be liable for negligence in a personal injury case if his breach of duty caused another person’s injuries.” Damage It is the loss or damage to health, honor and property, the spirit of the victim Damage has two types: Physical damages and Nervous shock Example: X taxi carrying Mr.A caused the accident but luckily there have no damage However, Mr.A haunted about the crash affect your work He has a lawsuit about the compensation damage physically and mentally that he was causing 3.3 Explain how a business can be vicariously liable Vicarious liability is imposed on the manager or the organization responsible for the replacement of staff who caused the damage in at your service Employer-employee: responsible management party when the two parties have a labor relationship in labor contract through which the two sides have signed 11 11 Example: go back many years ago, when the driver of the singer Ho Ngoc Ha take her out, while the wait has caused the accident caused 10 deaths Ho Ngoc Ha to stand bear all damages and compensation for the damage, and the driver will be processed by law and set forth in the labor contract between the two Agent-principal: relationship between the two sides often in short period and not exist a relationship contract When the agent to follow the orders of the principal and causing damage, then the principal will be responsible for, and when the agent himself caused the damage, the principal is not liable Independent contractor: who is from labour, the action itself and solely for all the consequences, effects caused by ourselves LO4 Be able to apply principles of liability in negligence in business situations 4.1 Apply the elements of the tort of negligence and defenses in different business situations Situation: Mr A went to the shop of Mr B to purchase of an iPhone 6S old as a gift for the birthday of his wife, after checking series number on iPhone, Mr A paid and signed the bill with Mr B, then Mr A asked Mr B brought it to address XXX to give Mr A's wife and make her surprise However, after Mr A left, other person has brought an iPhone 6s faulty heater battery and have the same color with the color of the Mr.A's iPhone To date of Mr A, Mr B had taken the error iPhone to delivered to Mr A's wife The consequence is that two days after use, the phone fuming and almost burnt hands, burning his wife Mr A After checking the series on iPhone that Mr A realized it is not the iPhone bought because of different series Mr A lawsuit Mr B because responsibility for interior work and influence others Situation analysis: Mr B was not careful in work, rushing and caused damages to the wife of Mr A when delivered a faulty battery products and very dangerous This has led to the wife of Mr A burned hand affect health Conclusion: Mr B has responsible and obliged to compensate the damage caused to Mr A and Mr A's wife If the lawsuit then Mr A fully capable of winning because Mr B was wrong mercy lead to unfortunate incidents 12 12 4.2 Apply the elements of vicarious liability in given business situations As said above, Vicarious liability is the case that the manager, head of a company, organization or company, held responsible instead of the employee when the employee make mistake and cause damage Situation: In 2012, when Apple announced Apple Maps and take Google Maps default out of the iPhone, this made million iPhone users and programmers of the world surprised because their daily work associated with Google Maps This becomes more and more catastrophes when Richard Williamson, a longtime employee of Apple and is the head of the Apple development team Maps were too sloppy in developing this application leads to too many silly errors and discrepancies led to more people being plunged into problems the influence of business, many people are using Apple products This immediately creates a protesting that Apple and Apple's CEO at the time that Tim Cook stood out and apologize customers all over the world and offer a solution to remedy the situation Apple and Tim Cook has got the responsibility of what their employees did Many people have also filed a lawsuit Apple intentionally exclusive maps application on their products Finally, all the problems were resolved when Apple takes Google Maps returned Richard Williamson were changed the location and left the company, significantly more Scott Forstall-father of iOS also must go because of the failure of this damage In this case, we can see the Apple employee has caused enormous damage and influence more people but the people responsible for the Apple and Tim Cook because they hire these people to this work Conclusion Understand the principles of liability in negligence in business activities is an important thing that every person needs to know to be able to analyses, process and identification of situations when there is an unexpected situation occurs Understand and solve a satisfactory manner according to the rule of law will help the parties concerned to protect their rights 13 13 References • • • • • • 14 Vneconomy (2015) Top 10 customer cases sued fastfood, Available at: http://vneconomy.vn/doanh-nhan/top-10-vu-khach-hang-kien-hang-fastfood20151222045819584.htm (Accessed: 24 April 2017) Clarke, P (2016) Contract and Tort Law, Available at: http://www.legalmatch.com/lawlibrary/article/contract-and-tort-law.html (Accessed: 24 April 2017) Schubert, J (2016) What Is Duty of Care? - Definition & Examples, Available at: http://study.com/academy/lesson/what-is-duty-of-care-definition-examples.html (Accessed: 24 April 2017) Rotlaw (2017) What is “negligence”?, Available at: http://www.rotlaw.com/legal-library/what-isnegligence/ (Accessed: 24 April 2017) Rotlaw (2017) What is “breach of duty”?, Available at: http://www.rotlaw.com/legal-library/whatis-breach-of-duty/ (Accessed: 24 April 2017) Duyen Pham (2012) Apple sacked "boss" Apple Maps, Available at: http://ictnews.vn/kinhdoanh/doanh-nghiep/apple-sa-thai-sep-apple-maps-106532.ict (Accessed: 24 April 2017) 14