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A REPORT ON NEGLIGENCE

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A REPORT ON NEGLIGENCE
Tittle page

Prepared for: Mr. John Andre
Lecturer of Aspects of Contract and Negligence for Business
Banking Academy, Hanoi
Prepared by: Nguyen Thanh Ha (Moon)
Registration No.: F05 – 051
Class: F05-B
Submission Date: 26 December 2013

1

Table of Contents
Introduction ..................................................................................................................................... 3
Task 1 (Outcome 3.1) ..................................................................................................................... 3
Contrast liability in tort with contractual liability using the situations in the scenario .............. 3
Task 2 (Outcome 3.2 & 4.1) ........................................................................................................... 4
Explain the nature of liability in negligence and apply the elements of the tort of negligence
and defences in situations above ................................................................................................. 4
2.1. Duty of care.......................................................................................................................... 4
2.2. Breach of Duty of care ......................................................................................................... 5
2.3. Strict liability ....................................................................................................................... 6
2.4. Apply to scenario ................................................................................................................. 6
Task 3 (Outcome 3.3 & 4.2) ........................................................................................................... 8
Explain how a business can be vicariously liable and apply the elements of vicarious liability
in the scenario above ................................................................................................................... 8
3.1. Vicariously liability ............................................................................................................. 8
3.2. Apply to scenario ................................................................................................................. 9
Conclusion .................................................................................................................................... 10
References ..................................................................................................................................... 11

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Introduction
Mug-n-Sas is an electronics retailer with 5 stores throughout London, they develop especially in
smartphone and tablet industry. The aim of this report is to mention about what Mug-n-Sas faces
in negligence with three main tasks:


Task 1: Contrast liability in tort with contractual liability using the situations in the
scenario



Task 2: Explain the nature of liability in negligence and Apply the elements of the tort of
negligence and defences in situations above



Task 3: Explain how a business can be vicariously liable and Apply the elements of
vicarious liability in the scenario above

Task 1 (Outcome 3.1)
Contrast liability in tort with contractual liability using the situations in the scenario
Similar: both are civil wrong and the person wronged sues in the court for compensation
(slideshare.net, 2009)

Differences:
Contractual liability

Tort liability

The liability base on terms of contract: Not have specific term, the liability base on strict,
Express, Implied terms…

occupier liability…

Only the parties in the contract have to do Apply for all civilize
follow it and can sue other party in contract
Remedy is compensation by money base Remedy is not only compensation by money
on the breach of contract

The damages awarded must be for past, present
and future losses… base on the victim’s losses

3

Real case:
Tweddle v Atkinson [1861]

Donoghue v Stevenson [1932]

“A couple were getting married. The father “Mrs Donoghue went to a cafe with a friend. The
of the bride entered an agreement with the friend brought her a bottle of ginger beer and an
father of the groom that they would each ice cream. The ginger beer came in an opaque
pay the couple a sum of money. The father bottle so that the contents could not be seen. Mrs
of the bride died without having paid. The Donoghue poured half the contents of the bottle
father of the son also died so was unable to over her ice cream and also drank some from the
sue on the agreement. The groom made a bottle. After eating part of the ice cream, she then
claim against the executor of the will.

poured the remaining contents of the bottle over

The claim failed: The groom was not party the ice cream and a decomposed snail emerged
to the agreement and the consideration did from the bottle. Mrs Donoghue suffered personal
not move from him. Therefore he was not injury as a result. She commenced a claim against
entitled to enforce the contract” (e- the manufacturer of the ginger beer.
lawresources.co.uk, n.d.).

Her claim was successful. This case established the
modern law of negligence and established the
neighbour test” (e-lawresources.co.uk, n.d.)

Task 2 (Outcome 3.2 & 4.1)
Explain the nature of liability in negligence and apply the elements of the tort of negligence
and defences in situations above
In this task, I mention to 3 types tort of negligence: Duty of care, Breach of duty of care, Strict
liabilities.
2.1. Duty of care
“Duty of care refers to the circumstances and relationships which the law recognizes as giving
rise to a legal duty to take care. A failure to take such care can result in the defendant being
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liable to pay damages to a party who is injured or suffers loss as a result of their breach of duty
of care. Therefore it is necessary for the claimant to establish that the defendant owed them a
duty of care. The existence of a duty of care depends on the type of loss and different legal tests
apply to different losses” (E-lawresources.co.uk, n.d.)
Caparo Industries pIc v Dickman [1990]
“Caparo Industries purchased shares in Fidelity Plc in reliance of the accounts which stated that
the company had made a pre-tax profit of £1.3M. In fact Fidelity had made a loss of over
£400,000. Caparo brought an action against the auditors claiming they were negligent in
certifying the accounts.
No duty of care was owed. There was not sufficient proximity between Caparo and the auditors
since the auditors were not aware of the existence of Caparo nor the purpose for which the
accounts were being used by them” (E-lawresources.co.uk, n.d.)

2.2. Breach of Duty of care
“Breach of duty in negligence liability may be found to exist where the defendant fails to meet
the standard of care required by law. Once it has been established that the defendant owed the
claimant a duty of care, the claimant must also demonstrate that the defendant was in breach of
duty. The test of breach of duty is generally objective, however, there may be slight variations to
this” (E-lawresources.co.uk, n.d.)
Condon v Basi [1985] 1 WLR 866 Court of Appeal
“The Claimant suffered a broken leg during a tackle from the Defendant during a football match.
The Claimant was playing for Whittle Wanderers and the Defendant for the Khalso Football
Club. Both clubs were in the Leamington local league. The question for the court was the
standard of care expected of a football player.
The standard of care varies according to the level of expertise the player has. The Defendant was
in breach of duty as the tackle was reckless even with regards the standard expected of a local
league player. Whilst a participant can be taken to accept the risks of injury inherent to such
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sporting activities they do not accept the risk of injury which occurs outside the rules of the
game.” (E-lawresources.co.uk, n.d.)

2.3. Strict liability
“In both tort and criminal law, strict liability exists when a defendant is in legal jeopardy by
virtue of an wrongful act, without any accompanying intent or mental state. In criminal law,
possession crimes and statutory rape are both examples of strict liability offences.

In tort, there are two broad categories of activities for which a plaintiff may be held strictly liable
- possession of certain animals and abnormally dangerous activities. Additionally, in the area of
torts known as products liability, there is a sub-category known as strict products liability which
applies when a defective product for which an appropriate defendant holds responsibility causes
injury to an appropriate plaintiff.” (Law.cornell.edu, n.d.).
Gammon (Hong Kong) Ltd v Attorney-General of Hong Kong [1985]
“The appellant was a builder who had deviated from plans in the construction of a building. It
was an offence to deviate from the plans in a substantial way. The appellant accepted he had
deviated from the plans but he believed that the deviation was only minor rather than substantial.
The offence was one of strict liability and therefore his belief was irrelevant and his conviction
upheld.” (E-lawresources.co.uk, n.d.)

2.4. Apply to scenario
Suzi Simmons vs Mug-n-Sas
In this case, Suzi bought a phone from Mug-n-Sas with the warranty is 2 years but after a week
she took a fatal stock because of answering the phone while it was charging. Her husband, Palk,
is suing Mug-n-Sas for ₤2,025,000 for the income Suzi could have made over her lifetime, the
funeral and exemplary damages.
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For the first compensation, ₤1 million is exactly what Suzi’s loss, not Paul’s loss. The third ones,
₤1 million in exemplary damages to other manufacturing will take care of produce process and to
not make this problem. However, it is only for the company which make problems regularly and
they do not tend to correct it; Mug-n-Sas is not. They are in good development in electronic
industry; Suzi’s situation is what they are not supposed to happen. Therefore, Mug-n-Sas does
not have to pay for option one and three; it means they do not have to pay ₤2 million for Paul.
For the second ones, Mug-n-Sas has to pay ₤25,000 for funeral because the manufacturer own
duty of care to their customers to ensure the safety and quality of products. In this case, Suzi is
their customer so she takes the duty of care.

Tom vs Mug-n-Sas
Tom is a burglar and he broke into a Mug-n-Sas store to steal but unfortunately, he took an
electrical shock, fell into, destroyed 2 led TV’s and had to go to the hospital. He suing Mug-nSas for ₤5,000 for hospital’s bill with reason is the store had exposed electrical wires in violation
of London’s building code.
If Tom is a customer of Mug-n-Sas, he will win because the duty of care. However, he is a
burger and it is the case of breach of duty of care. Tom trespassed into the store and it is illegal
action. He will not receive any compensation from Mug-n-Sas, moreover, he has to pay ₤4,000
to replace the TV’s he destroyed and ₤3,000 to repair the roof.

Apply vs Mug-n-Sas
The truck of Apple carried nitro-glycerine, a Mug-n-Sas’s worker do not know that knocked over
a nitro-glycerine’s bottle inadvertently. It exploded destroying the truck, all of its contents,
killing the driver, and damaging the loading dock of Mug-n-Sas. Apple is suing Mug-n-Sas for
the ₤2,025,000 for the cost of the truck, contents and the amount Apple have to pay the driver’s
family under his employment contract.

7

In fact, nitro-glycerine is very dangerous gas. Apply know that, so in the contract with the driver
they foreseen that he would be die if the accident happened. Apple delivering it is illegal and
they must take strict liability and take all responsibility about the damage of nitro-glycerine.
Therefore, Mug-n-Sas will win and does not have to pay anything for Apply; moreover, Apply
has to pay ₤100,000 for worth of damage.

Task 3 (Outcome 3.3 & 4.2)
Explain how a business can be vicariously liable and apply the elements of vicarious
liability in the scenario above
3.1. Vicariously liability
“A vicarious liability can be defined as the liability created by an action or non-action by a
person, working on behalf of him when he is responsible for all the action or inaction of such
person within the limits of their association. So when an employee or worker cause a loss to
somebody in the normal course of his duty then the employer will be responsible for such loss”
(Legal-explanations.com, n.d.)
To make the employer liable for a tort of the employee it is necessary that:


There is the relationship between them of employer and employee



The employee's tort is committed in the course of his employment

(BPP, 2010)
Heasmans v Clarity Cleaning Co (1987)
“A contractor was taken on to clean offices and was given keys. A cleaner made expensive
international telephone calls.
Held: The appeal succeeded. The contractor was not vicariously liable for his employee’s acts.
There had to be shown some connection beyond opportunity between the servant’s tortious or
8

criminal act and the circumstances of his employment so that it was committed in the course of
the servant’s employment; that the mere fact that the servant’s employment had given him access
to the plaintiffs’ premises was not enough. To establish vicarious liability there had to be a nexus
other than mere opportunity between the circumstances of employment and the wrongful act.”
(swarb.co.uk, n.d)

3.2. Apply to scenario
Henrietta v Mug-n-Sas
Won Ton is a worker of Mug-n-Sas store. He entered Henrietta’s house to install a TV. Henrietta
offered him to drink tea and after he left, she found Won Ton stole her diamond necklace on the
table. She sues Mug-n-Sas for ₤10,000 for the cost of the necklace.
Mug-n-Sas will win and they are not vicarious liability for their employee’s action. Won Ton’s
action was not a result of installing a led TV, it was not a part of his job, it was his own and he
has to take all responsibility for Henrietta.

Vidia v Mug-n-Sas
Vidia is a customer of Mug-n-Sas. While she was in the store, an employee took her purse on the
table. When it returned, she found the phone was missing. She is suing for ₤600, the cost to
replace the phone and ₤1 million for exemplary damages because she has heard the store’s
employees do this sort of thing all the time.
In this case, Vidia will win and Mug-n-Sas are vicarious liability for their employee’s action for
two reasons: Vidia is their customer and it caught by their employee in working time in their
store. Moreover, it happens regularly, so Mug-n-Sas has to pay ₤1,600,000.

9

Conclusion

In conclusion, after searching, I have clearly understood about a part of negligence. From the
report I can learn that to be successful in a negligence claim, the claimant must prove: the
defendant owed them a duty of care, breach of that duty and the damage was not too remote. I
think my report is quite good because it has state all the law background and apply suitable
cases. However, it will be better in next time if I can have more time for searching and learning.

10

References

E-lawresources.co.uk.

n.d.

Duty

of

care.

[online]

Available

at:

http://www.e-

Available

at:

http://www.e-

lawresources.co.uk/Duty-of-care.php [Accessed: 2 Dec 2013].

E-lawresources.co.uk.

n.d.

Breach

of

duty.

[online]

lawresources.co.uk/Breach-of-duty.php [Accessed: 2 Dec 2013].

Law.cornell.edu. n.d. Strict Liability | LII / Legal Information Institute. [online] Available at:
http://www.law.cornell.edu/wex/strict_liability [Accessed: 2 Dec 2013].

Legal-explanations.com.

n.d.

Vicarious

Liability

definition.

[online]

Available

at:

http://www.legal-explanations.com/definitions/vicarious-liability.htm [Accessed: 2 Dec 2013].

slideshare.net.

2009.

Law

in

Tord.

[online]

Available

at:

http://www.slideshare.net/btecexpert/0201compare-contrast-tort-and-contract [Accessed: 2 Dec
2013].

swarb.co.uk. n.d. Heasmans -v- Clarity Cleaning Co; CA 1987. [online] Available at:
http://swarb.co.uk/heasmans-v-clarity-cleaning-co-ca-1987/ [Accessed: 2 Dec 2013].

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