...Torts Assignment PART 1 1) Does Autumn Bay High owe a duty of care to Persephone and Aphrodite? Consider the common law as well as any impact that the Civil Liability Act 2002 (NSW) may have on the common law. The main considerations that have to be taken into account when deciding whether Autumn Bay High owed a duty of care to Persephone and Aphrodite are the reasonable foreseeability of nervous shock and whether their duty of care was non-delegable. Under the Civil Liability Act 2002 (NSW) “the defendant owes a duty of care to the plaintiff if they ought to have foreseen that a person of normal fortitude might, in the circumstances of the case, suffer a recognized psychiatric illness if reasonable care were not taken”. It has been established through Tame v New South Wales & Annetts v Australian Stations Pty Limited[1] that reasonable foreseeability of mental harm is a precondition of the existence of a duty of care. Taking the provisions of the Civil Liability Act 2002 (NSW) into account, the fact that the school is taking its students on a ski trip already establishes a general duty of care. It is reasonably foreseeable that such an activity poses the possibility of serious injuries if adequate supervision is not provided. In addition to this, it is not fanciful or far-fetched that witnessing a horrific physical injury to a fellow student can cause sudden shock and consequential mental harm to a person. While Aphrodite witnesses the actual accident, and sees...
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...IRAC Method of Bell vs. Greenbrier Nursing and Rehabilitation Center Shaquita Spruill Business Law (LAW/531) Michael Meeusen September 2, 2013 IRAC Method of Bell vs. Greenbrier Nursing and Rehabilitation Center Case: Martha Bull, 76, who died at the Greenbrier Nursing and Rehabilitation Center April 7, 2008 after staff failed to act on a doctor's orders to get her transferred to a hospital emergency room for treatment of severe abdominal pain. Issue: Has negligence been demonstrated? Rule: Negligence requires that a duty was owed, that the duty was breached, and that the breach was the actual and proximate cause of damage. Analysis: Greenbrier Nursing and Rehabilitation Center owed a duty of care to Bell which was to get her to a hospital. Greenbrier Nursing and Rehabilitation Center breeched their duty of care by not following through with the doctors’ orders. The breech of this duty caused injury to Bell which was death. Greenbrier Nursing Center is the proximate cause of negligence which means the negligent party is not necessarily liable for all damages set in motion by his or her negligent. Conclusion: According to "Arkansas Times" (2013), the jury found the nursing home guilty of negligence, medical malpractice and violation of resident's rights, but it did not specifically find that the nursing home caused Bull's death. New legislation from the 2013 legislation, sponsored by Sen. Jonathan Dismang, will make it impossible to sue a nursing home except for...
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...Introduction - Director’s duties Even though the law recognizes corporations as separate and distinct entities from the owners, it nevertheless recognizes that corporations act through people. Such people are referred to as directors and manage the activities of a corporation. In Lennard’s Carrying Co. v. Asiatic Petroleum Co. Ltd, the court observed that directors are the directing mind and will of the company. Accordingly, directors of a company act for and behalf of the company, and as such owe several duties to the company. These duties are at common law and also statutorily provided for. In the U.S., there is no single statute codifying these duties, and as such states are given the latitude to legislate on the issue (Clarke, 2007). Majority of other commonwealth contries however have a codified statute dealing with such issues. From a general perspective and subject to state law, director’s duties at common law apply to all states. It is imperative to note that these duties are owed to the company and not to the owners or shareholders. In Percival v. Wright, the court held that directors are not agents of the shareholders, but rather agents of the company as a whole. Importantly also, these duties also bind any person lawfully authorized by the directors, to act on behalf of their behalf. At common law, the duties of directors fall into two categories: the duty of care and skill in the conduct of the affairs of the company; and fiduciary duties of good faith and loyalty...
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...Week#7 MSAC 601 Legal and Ethical Duties of Care Due: Monday, April 20th, 2014 CPMR Abstract This paper addresses the duty of care, duty of loyalty, and ethics of care issues that arise in the workplace. It outlines the nature and scope of care that employers are ethically obligated to give their employees. Characteristics of duty, and how it can be implemented are provided, along with how to deal with issues that arise. Duty of care is the principle that directors and officers of a corporation have in making all decisions in their capacities as corporate fiduciaries, who must act in the same manner as a reasonably prudent person in their position would (Cornell, 2015). Duty of care is considered a business judgment rule which is met as long as the fiduciary executed a reasonably informed, rational judgment in good faith, that didn’t occur with a conflict of interest. A court needs to be able to agree with the business judgment or the plaintiff needs to be able to adequately prove that the standard was not met. Even if the plaintiff can show that the standard was not met, as long as the defendant fiduciary can prove that a fair process was used and a fair outcome resulted from the decision then they can still meet their duty of care. Duty of loyalty is the principle that directors and officers of a corporation take in making all decisions in their capacities as corporate fiduciaries and must act without personal economic conflict (Cornell, 2015). This principle...
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...NEGLIGENCE Tort Law is a field that encompasses material of considerable breadth and diversity and whose existence, as a reflected in individual actions seeking civil redress for injuries nor arising out of contractual relations can be traced can be traced back to primitive societies. (White, 2003 p.23) A ‘tort’ is a Norman word for a ‘wrong’ but ‘torts’ have typically been distinguished from crimes and from ‘wrongs’ identified with contractual relations. Tort Law is concerned with civil wrongs not arising from contracts. We can see the shifting character of Tort Law in nineteenth and twentieth century America as deriving from the shifting ideas of legal scholars and judges particularly ideas about the civil responsibilities of a person to his or her neighbors in society and about the manner in which society should respond to injuries and injured people. An independent identity for Torts late in the nineteenth century is the affection of tort doctrines, especially negligence, to the problems produced by industrialization. Industrialization has played a part in creating the climate of intellectual legal opinion and it affected torts as an independent category of law. Some certain lawyer-intellectuals in the development of legal doctrine in America, who were academicians after 1870, significantly affected the content of tort rules and doctrines and also affected the changing state of tort law in America. There are many categories of Torts. It...
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...| | ASSIGNMENT COVER SHEET(adapted for LAW1100 major essay submission purposes) | UNITCode: LAW1100TITLE: Legal Framework I | NAME OF STUDENT (PRINT CLEARLY) fisher shane FAMILY NAME FIRST NAME | STUDENT ID. NO.10104032 | NAME OF LECTURER (PRINT CLEARLY)brad moore | DUE DATE18/4/2011 | Topic of assignmentDuty of Care IN THE LAW OF NEGLIGENCE | Group or tutorial (if applicable) | Courselegal framework 1100 | Campusmt lawley | I certify that the attached assignment is my own work and that any material drawn from other sources has been acknowledged. Copyright in assignments remains my property. I grant permission to the University to make copies of assignments for assessment, review and/or record keeping purposes. I note that the University reserves the right to check my assignment for plagiarism. Should the reproduction of all or part of an assignment be required by the University for any purpose other than those mentioned above, appropriate authorisation will be sought from me on the relevant form. | OR, if submitting this paper electronically as per instructions for the unit, place an ‘X’ in the box below to indicate that you have read this form and filled it in completely and that you certify as above. Please include this page in/with your submission. Any electronic responses to this submission will be sent to your ECU email address (or, where relevant, the digital dropbox for the Blackboard site for LAW1100).Agreement X ...
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...incident or circumstance that occurs which may result in a loss, damage or injury. Sometimes what may be seen as an accident can also be because of a negligent act where a duty of care was owed but not received. A reasonable foreseeability must be proven before it can be established if a duty of care existed and whether someone was liable for the damage. Accidents do not occur nearly as much due to more negligent acts occurring where the results are reasonably foreseeable but those involved are not accepting their duty of care to avoid any risks. As can be seen in Vaughan v Menlove (1837) 3 Bing NC 467, where the defendant’s haystack caught fire due to poor ventilation. He was told...
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...4 Negligence: duty of care Learning objectives At the end of this chapter you should be able to: • have an overview of the history of negligence; • describe the function of duty of care in negligence; • appreciate the way duty of care has been defined and developed; and • apply the principles of duty of care in the areas of omissions and liability of public bodies. 04-Bermin-Chap04.indd 42 2/6/2008 7:39:32 PM 4.1 Introduction Negligence began to be recognised as a tort in its own right around the beginning of the nineteenth century. Before that time, the dominating action for personal injury was the writ of trespass. Trespass was initially concerned only with direct acts, however, during the nineteenth century the focus shifted to the distinction between intentional wrongs (trespass) and the unintentional (negligence). As we have seen, negligence was originally described in terms of a duty imposed by law and thus it will be seen that duty is one of the three key elements of negligence today. Negligence evolved as a means of loss-shifting at a time when there was little or no insurance or state welfare provision. The industrial revolution in the nineteenth century brought with it increased risks of injury to those working in factories, mines, quarries, and other dangerous situations. The development of railway transportation and mass production dramatically increased the potential for many people to be affected by the faulty conduct of strangers, at the same time...
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...majority shareholder and a secured creditor of the company. Upon winding up, the liquidators argued that Mr. Salomon must not be considered as a secured creditor since he was in control of the company itself. But the Court’s decision recognized Mr. Salomon as a secured creditor since the company has a separate legal personality from the directors and shareholder upon its registration and it has nothing to do with Mr. Salomon being a secured creditor. Application Applying s119 corporations act, Easy Groceries Pty Ltd is a separate legal entity from its directors and shareholders, meaning that Easy Groceries Pty Ltd as a company itself is liable for the debts that occurred. Conclusion As an own legal entity, Easy Groceries Pty Ltd is liable for all the debts occurred. 2. Directors A. Tom and Jones : Executive directors Issue Are Tom and Jones directors under s9 Corporations’ Act? Did they breach their duties under general law and the Corporations Act as directors? Can they be held personally liable? Are they able to any defences as directors of the company? Law According...
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...DIRECTOR’S DUTIES * Director’s fiduciary duties: Hospital products ltd v united states surgical corp “the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practicable sense.” * Bristol & West building society v Mothew – Duty of loyalty – the principal is entitled to the single-minded loyalty of his fiduciary. “this core liability has several facets. A difuciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict” - fiduciary duties stem from equitable principles developed through case law act in good faith in the best interest of the company exercise their powers for proper purposes retain their discretionary powers avoid undisclosed conflicts of interest Also owe a duty of care * Fiduciary duties overlap with Corporations law Fiduciary duties are supplemented by statutory duties, * S 182 and 183, directors’ fiduciary duties to avoid undisclosed conflicts between their personal interests and the interests of their company – improper use of position and improper use of information * S 180(1) owe a duty at common law to exercise reasonable care, skill and diligence – business decisions, gaining knowledge of the business and financial position, making inquiries where necessary and relying on...
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...especially Mr. Manoranjan Bhakta FCA (Managing Director) who gave me all possible important information and helped me with the actual contracts and scenarios of the business. I would also like to thank my respective course teacher Md. Ashiqur Rahman Bhuiyan for his exemplary guidance, monitoring and constant encouragement throughout the whole semester. Lastly I would like thank my respective parents, siblings, friends and colleagues to support and helped me to successfully complete full assignment . Table of Contents Contents TORT: 3 Intentional Tort: 3 Strict Liability: 3 Negligence: 4 Duty of care: 4 Breach of Duty: 5 Causation: 6 Vicarious Liability: 8 Reference: 12 LO 3 Understanding the principles of liability in negligence in business activities. TORT: The liability of the violation of a fixed law, law arises primarily; this duty is towards persons generally and its breach is capable of redress by action unliquidated damages. This is a civil wrong, in the sense that it is committed against an individual, not the State. The essence of tort law is that a person has certain interests that are protected by law. These interests can be protected by a court granting a sum of money, known as damages. There are increasingly limited circumstances where the victim of a tort may avail himself of self-help. Types of Tort: There are basically three types of tort:...
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...Should A Business Have Civil Liability for the Criminal Acts of Its Employees? A business should have civil liability for the criminal acts of its employees when the criminal acts are done in connection with the employee performing work for the company. This includes acts that were both known and unknown by the employer. Vicarious liability and respondeat superior are two large factors in businesses being liable for their employees, and it is vital to understand what does and doesn’t fall under these doctrines. Businesses have a duty of care to hire, train, supervise, and retain employees that are responsible and ethical members of society; if an employee commits a criminal act while representing the business, then the employer has breached its duty of care. Employees represent the business they work for, and a business reaps benefits of its employees as far as sales and goodwill are considered, therefore the business should be held responsible for its employee’s acts because the employee is acting on behalf of the business (“Defining an employer’s duty of care,” n.d.). There are a few key reasons that a business should have civil liability for the criminal acts of its employees. Imposing liability on a business may give it an incentive to invest in higher standards for hiring, supervision, and retention of its employees to prevent these crimes from occurring. From a firm’s standpoint, it is much more favorable investing in the hiring and training of employees rather...
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...IDIRECTOR’S DUTIES AND OBLIGATIONS Contents The Director’s are under the obligation to ensure the goods were insured in their duty to act with due care and diligence. 1 Area of Law 1 Principle of Law 1 Application of Law 4 Conclusion 4 The Company has been traded into insolvency. 4 Area of Law 4 Principle of Law 5 Application of Law 6 Conclusion 6 The Director’s Liability for insolvent Trading 7 Principle of Law 7 Application of Law 9 Conclusion 9 The Director’s are under the obligation to ensure the goods were insured in their duty to act with due care and diligence. Area of Law The area of law involved in this particular case to prove director’s duty to take due care is the Corporation Law. Principle of Law The Director’s duties fall under two categories the fiduciary duty and the duty to exercise care, diligence and skill while they are discharging their duties under the position. The Corporations Law provides that that a Director has to exercise reasonable degree of care and diligence while he is exercising his or her duties (Section 232 (4), The Corporation Law n.d.). If there is a failure to comply with the provision of 232(4) it leads to an offence punishable with fine up to $5000 and shall also lead to civil proceedings (Fisse 1992). Austin J was the first to review the statutory duty of care and diligence where the entire history of the same begins (ASIC v Vines 2003) (ASIC v Rich 2003). The circumstances which ae necessary in such...
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...Task 4 Occupiers' Liability Occupiers' liability commonly refers to the obligation due by land possessors to those who come on their land. Yet, the obligation enforced on land holders can spread outside simple land possession and in some cases, the landowners might handover the duty to others, therefore the word ‘occupier’ instead of ‘owner’. The term ‘occupier’ itself is ambiguous since bodily occupation is not mandatory for liability to ascend. Liability can ascend on occupants for exclusions since their affiliation contributes towards escalation to duty to take action to safeguard the rational protection of visitors. The law pertaining to occupiers' liability is presently confined in two key fragments of legislation, but it was initiated...
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...Issue 1. Whether Anil, Ah Chong and Kombabawa have breached the duties of directors. 2. Whether Aaron has breached the duties of directors 3. Whether Duffy has breached the duties of directors. 4. Whether Frederick has breached the duties of directors Relevant Law Directors’ duties include statutory duties, common law duties, duties in equity and fiduciary duties. The court will probably examine all of them in determining whether the defendant has breached the duty of directors. Statutory duties Sections 180 to 1841 define the general duties of directors. Section 1802 states that directors should discharge their duties with care and diligence. Section 1813 states that the directors must discharge their duty in good faith in the best interest of the company, and for a proper purpose. Section 1824 states that directors should not improperly use their position to gain advantage for themselves or cause detriment to the corporation. Section 1835 states that the directors should not use the corporate information to gain advantage for themselves or cause detriment to the corporation. The obligations in ss. 180 to 183 are civil; however, if a director is reckless or intentionally dishonest when he/she breached ss. 180 to 183, he/she is liable for criminal charges6. Specific duties of directors include: directors should disclose material personal interest to other directors7. Section 1898 considers the director’s reliance on others to be reasonable if...
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