The Tort of Negligence (Coursework Sample)

Students Name:
Institution:
Instructors Name:
Date:
Commercial Law
The Tort of Negligence
Candice an employee at Rapid deliveries was sent by her employer to deliver an urgent parcel at Star Corporation Limited in Central Auckland. On her to the company, she realized that her fuel tank was low and so she stopped at a nearby petrol station to fuel the vehicle. Seeing as the attendant was busy, she offered to fill the tank herself and so the attendant handed the petrol pump to her. After fueling the car, she got in and sped off in a rush without realizing that she had not removed the pump from the van. The pump hose was torn and caused a mess at the petrol station. As Candice sped along the motorway, the van left a trail of petrol. An oncoming car caught fire from the sparks that were produced from Candice van. Kevin, the owner of the vehicle that caught fire managed to get out of the car uninjured. The firefighters managed to arrive at the scene on time to put out the fire before further damaged was caused. As the events rolled out, Candice was unable to deliver the urgent parcel on time, which meant that Star Corporation would lose a multi-million dollar deal to a rival bidder.
Several lose and damages can be identified in this case. They include the cleanup cost at the garage that cost $ 9, 500.00 and the cost of the torn petrol pump, the value of Kevin’s car that got burnt that was worth $ 15, 000.00 and the value of the lost opportunity at Star Corporation that was worth multi-million dollars. The cost of damages would be the legal issues raised in this situation. The relevant legal principles that would be applied to solve the case are the Tort of Negligence. Legal wrongs that a party suffers because of another are referred to as torts (DeMitchell, 2006). On the other hand, negligence is tort because it involves damage or loss that occurs between entities with no contractual agreement between them. For this reason, one party lacks a reason to sue the other.
Candice employer was liable to the damage and loss caused at the petrol station, which included the cleanup costs and the cost of the torn petrol pump horse. According to vicarious liability, one party is held responsible for the omissions or actions of another. In the context of a workplace, an employer would be held liable for the omission or the acts of its employees as long as it can be proved that the incidence took place at the time of employment (Whitmore, 2006). In this case, Candice actions of forgetting to remove the hose pump from the car that caused damage would be the responsibility of the employer.
The petrol attendant would be liable for the fire that spread from the Rapid Deliveries vehicle because of the petrol leaking. Even though the attendant tried to beckon at Candice as she sped off the garage, he could have gone an extra mile to try to reach her to avoid the damage caused. He had the duty of care not only for Candice but also for any losses that could have followed thereafter. According to law, every person has a duty of care to the other person as long as they are in close proximity. Breach of this duty of care occurs when one party’s negligence causes damage of loss to the other.
Candice was liable for the destruction of Kevin’s car. According to law, an act of omission is negligent and the involved party has a liability for omission (Lawrence, 2011). Candice forgot to remove the petrol pump from the car, which caused it to tear and leak petrol along the motorway. Consequently, this act caused a fire that resulted in a fire that burnt Kevin’s car. Candice forgetfulness to remove the pump is an act of omission that was negligent. For this reason, she would be held liable for the damages caused by her negligent actions. Candice employer would be responsible for the multi-million dollar loss that Star Corporation experienced because of the delayed delivery of the documents. Under vicarious liability, an employer is liable for his or her employee’s actions that cause loss or damage as long as the situation took place during employment.
Creation of the Contract
The case between Ozzie Desserts and Kiwi Pavlova commenced when Ozzie asked for the price of 10, 000 pavlovas. Kiwi responded to the email and sent the details of their products and the shipment dates. Ozzie desserts placed an order, but Kiwi Pavlovas adjusted the price point of the units requested, which Ozzie Desserts agreed. Both companies attached a copy of the terms and conditions applicable when doing business with other parties. The first delivery was done successfully, but the second delivery was damaged on transit at Sydney Airport. Kiwi Pavlovas forwarded a message to Ozzie and its insurer asking for pay for the damaged goods. Ozzie declined to state that in their terms and conditions, Kiwi was responsible for the insurance of the shipment. From the case, there is a procedure leading to the formation of the contract.
Ozzie intended to create a legal relation with Kiwi Pavlovas when they sent the email requesting for the price for 10,000 units of their products. In contract law, there are requirements for the intention to create legally binding relations. Not every arrangement leads to a legally binding contract that can be enforced in a court of law. Some agreements are made in domestic and social context and therefore, they may not be legally binding or enforceable in court. One may have a moral responsibility and no legal duty to honor the agreement (Saprai, 2014). For this reason, to determine the agreements that have the intention to create legal relation and are legally binding, the law differentiates between agreements made in a domestic and social context from those made in a commercial context. In the case of Ozzie desserts and Kiwi Pavlovas, the arrangement was made in a commercial situation.
Kiwi Pavlovas sent the details of the different prices, the units of Pavlovas per price point and the dates of shipment for the products. In addition, the company quoted that the purchaser would be responsible for the insurance of the goods and that Kiwi Pavlova’s terms and conditions would apply. The response that Kiwi made to Ozzie was an expression of an offer that awaited acceptance from Ozzie Desserts. The elements of Offer and acceptance are essential for the formation of a contract that would be legally binding (Saprai, 2014). In addition, for the agreement to be enforceable by law the situation should indicate that one party, the "offeror" expressed an offer to contract to another party, the "offeree" on certain terms (Liao, 2013). On the other hand, the offeree has to indicate the acceptance of the terms indicated by the offeror.
With reference to the case, Ozzie Desserts showed acceptance to the offer and the terms indicated by Kiwi when the company placed an order of 10, 000 pavlovas and attached a copy of the term and conditions applicable in the transaction. In this case, Kiwi Pavlovas was the "offerer" and Ozzie Desserts was the "offeree”. In addition, for this arrangement to be legally binding, an indication of consideration would be applicable. Kiwi sent Ozzie an email indicating the correct price point for the 10, 000 pavlovas. This action indicated that Kiwi considered doing the transaction with Ozzie, which meant that the relationship would be binding under commercial law. For this reason, the contract between the two parties was enforceable under the law of contract because all the elements satisfied the requirements under creation of a contract.
Consideration
While the neighbors were away on holiday for three months, one notices that the grass in their lawn was growing rapidly and so they decide to mow the lawn weekly until they came back. When the neighbors return, they appreciate the kind action and promise to pay the person $100 to cover the time spent and the cost of fuel. Unfortunately, the individual never receives the 100$. The question of whether the person had a legal entitlement to the $100 would be solved under the conditions necessary to enforce a promise by law.
The communication from one party to another with an intention to assume or undertake an obligation is a promise. Not all promises are legally enforceable. For a promise to be a contract, the law would recognize sufficient intention for it to be a legally binding responsibility (Fried, 2015). In the case explained above, the promise would not be a legal entitlement because it lacks enough intention from the neighbors to a legal obligation. For this reason, a simple act of promising would create a moral duty but would need more justification to be enforceable under contract.
Consideration refers to a situation where a promise made to a party may not be essentially enforceable in court unless the other party proves that they gave something in return (Fried, 2015). A promise to compensate in monetary form could be enough evidence as giving something, although the promise may not be put into effect for a period yet. In legal terms, consideration would often be spoken as an advantage to the promisor or a disadvantage to the promise. In some cases, a simple promise may be neither a benefit to one party nor a detriment to the other party (Hillman & O'Rourke, 2009).
Samir promised to give his daughter $1000 if she would become a nurse and give her modeling career. The consideration that would be made in this case is the promise to pay $1000 to give up a career as a model for another profession. The action would be detrimental to Amandeep, the "promisee" and beneficial to Samir, the "promisor”.
In the second case, Samir promised to compensate Kapali, the paper delivery boy if he would deliver newspapers for him even though he was in agreement with a local newspaper agent. He promised to pay $5 if he would distribute his merchandise by 6:30 ...