Breach of Contract and Negligence

Breach of Contract and Negligence 1)  Mega will be looking to bring an action in breach of contract and negligence against Super for both their failure to install the cash machines until December 2006 and the negligent installation my Tom and Manoj which caused the registers to be out of action over the Christmas period. The problem they will have with this is that Super trade under a standard contract which contains clauses which apparently exclude liability for both delay to installation and consequential loss arising in either contract or tort. This includes the loss of profit which Mega wish to claim form them. However, it may well be that Super are not able to rely on those clauses. For an exclusion clause to be effective it must first be validly incorporated into the contract. Then the construction must be such that on a proper interpretation it covers the type of liability which has arisen. Each of these issues will be discussed in turn to establish whether or not Super will be able to fend off an action by Mega by relying on the exclusion clauses. To be effective as an exclusion clause the term must be incorporated into the contract at the time when the contract was made. It will not be effective if it is added at a later stage[1]. The terms must be contained or referred to in a document which is intended to have contractual effect. In the case of Super’s standard terms they are referred to in brochures, order forms, price lists and quotations and reprinted in invoices and receipts. It is likely that order forms would be considered to be a document with contractual effect. In the present case, however, Super took the order from Mega over the telephone. The contract would have been concluded at that time. It is therefore necessary that the exclusion clauses be incorporated at that time. For a clause to be validly incorporated the other party must be given notice of its existence. At this stage there is no details of the discussion between Mega and Super when hew order was taken. What is clear is that if the exclusion clauses were not mentioned in the telephone conversation and Mega did not know about them then they will not be validly incorporated by their inclusion in the invoice or receipt[2]. What amounts to reasonable notice will depend on the facts of the case. If it can be shown that Mega had actual knowledge of the terms they will be reasonably incorporated. It might well be for example that they had read the brochure and were therefore alerted to the existence of standard terms and should reasonably have enquired as to what they were. The fact that a party has to take further steps to find out what the terms of which he has been given notice are does not necessarily mean that reasonable notice has not been given.[3] However, it seems more likely on balance that the courts would hold that a mere reference to the standard terms in these pre contractual documents is insufficient notice of an exclusion clause. The present clauses are particularly onerous as they attempt to exclude a substantial amount of liability on the part of Super. In the case of Spurling Ltd v Bradshaw [1956] 1 WLR 461 Lord Denning held that the more onerous the clause the more that would have to be done to bring it to the attention of the other party. He stated that in some cases the clause would have to be printed in bright red ink with a big red hand pointing to it. This has become known as the red hand test. In the present case it would seem that some form of red hand would be required for there to be sufficient notice of the exclusion clauses. Therefore if Super did not specifically draw them to the attention of Mega then they will not be validly incorporated. I will proceed on the basis that the terms were validly incorpo rated for the purposes of analysing the terms themselves, but if they were not then Super will not be able to rely on them at all. The next issue to deal with is the construction of the clauses themselves. The courts have traditionally construed exclusion clauses very restrictively. It must be show that the clause, properly interpreted does actually cover the damage caused. The ‘contra proferentem’ rule means that any ambiguity will be resolved against the party seeking to rely on the clause. There does not seem to be any ambiguity in Clause 10.2. It clearly states that they will not be liable for delay howsoever caused. At this stage it seems unlikely that Mega will be able to claim for any losses caused by the delay to the installation. It might be however that Mega can rely on the Unfair Contract Terms Act 1977 section 3 which protects parties who are either dealing as consumers or dealing on the other’s standard terms of business as Mega are in this instance. Section 3(2) (b) (i) of the Act states that a party is not by reference to any term of the contract entitled to: â€Å"†¦render a contractual performance substantially different from that which was reasonably expected of him.† It is certainly arguable that a delay of two to three months would be outside the sort of delay that would be reasonably expected of a company. On balance I would be of the opinion that the delay will not be sufficient to allow Mega to avail them self of this protection. With regards to the loss of profits over the Christmas period, Mega will have to make a claim in negligence against Super. The first point to note is that just as Tom and Manoj will be protected by the clause, Super will be vicariously liable for their actions if the clause is not held to cover negligence. Super will be relying on clause 10.3 to suggest that they have excluded liability for consequential loss, including loss of profit for the negligence of their employees. The question is whether 10.3 actually has that effect. The general rule is that if a party wishes to exclude liability for negligence they must do so explicitly[4]. In the present case though Super have not referred specifically to negligence stating: â€Å"†¦neither the seller nor any of its employees shall be liable for any consequential or indirect loss suffered by the Buyer whether such loss arises in contract or tort.† The next step the courts will take is to establish whether the words used are wide enough to cover negligence on the part of the employees of the proferens[5]. It seems likely that Super will be able to show this as they have referred to ‘tort’ However the final and rather contradictory stage is that the court must consider: †¦whether the head of damage may be based on some ground other than negligence’[6] There cannot be any doubt that clause 10.3 could cover something other than negligence. Even leaving out the contract section it covers every type of tort. It is clear that where this is the case the proferens (Super) will not be able to rely on the clause to exclude liability for negligence. If the clause is held to cover exclusion of liability for negligence Mega may be able to rely on the Unfair Contract Terms Act 1977. Section 2(2) of that Act states: â€Å"2 Negligence liability: In the case of other (other than death or personal injury) loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.† On the present facts it does not seem to be an unreasonable clause. The bargaining power of the two parties seems relatively even on the face of it and there do not appear to have been any particular inducements to enter the contract with that term included. However there may be circumstances which are not included in the instructions which would render the term unreasonable. In conclusion I would be of the opinion that subject to the clauses being found to have been validly incorporated, Super will be able to relay on clause 10.2 to avoid liability of the delay in installation. On balance I would not expect them to be able to rely on clause 10.3 to save them from liability for the negligence of Tom and Manoj as the terms is not specific enough to negligence. It seems likely that loss of profit is a reasonably foreseeable consequence of negligent installation of cash registers and therefore Super will be liable for any loss of profit suffered by Mega over the Christmas period which is attributable to the lack of functioning cash registers. BIBLIOGRAPHY Olley v Marlborough Court Ltd [1949] 1 KB 532 Jayaar Impex Ltd v Toaken Group Ltd (t/a Hicks Bros) [1996] 2 Lloyds Rep 437 Spurling Ltd v Bradshaw [1956] 1 WLR 461 Thompson v London, Midland and Scottish Rly Co [1930] 1 KB 41, CA Unfair Contract Terms Act 1977 Canada Steamship Lines Ltd v R [1952] AC 192 at 208 2. Joe Pain, suffering and loss of amenity On the assumption that Katy was negligent Joe will be entitled to recover damages from her under two general heads, general damages and special damages. General damages cover the compensation which will be received by Joe for his injuries. This is commonly referred to as damages for pain suffering and loss of amenity. Pain and suffering is viewed separately to loss of amenity and I will discuss them in that order. Damages are awarded to the claimant for pain and suffering caused by the injury and any treatment relating to the injury both in the run up to trial and in the future if appropriate. It is important to bear in mind that awards for pain and suffering are subjective in that they relate to the actual pain suffered by the Claimant. In relation to Joe he is therefore unlikely to be able to claim for pain and suffering for the 2 weeks which he was unconscious.[7] This does not apply to loss of amenity which can be claimed whether the claimant was aware that they had lost amenity or not. Loss of amenity is an objective measure of the claimant’s losses. For example because of the loss of a limb as in Joes case. The fact that Joe can no longer row will be taken into consideration under this section of the head of damage and this is likely to result in an increased award. Overall damages are awarded for pain suffering and loss of amenity on the basis of what is fair just and reasonable.[8] The Judicial Studies Board issues guidelines as to the level of award based on recent judgments. In relation to amputations below the elbow the award is between  £56,000 and  £63,625. Which end of the scale it will be is determined by factors such as whether it was the claimant’s dominant arm. Loss of Earnings The claimant is entitled to be put in the position he would have been in had the injury not occurred.[9] In relation to his pre trial loss of earnings this will be the net figure which he would have earned during that period after national insurance tax and any other deductions which would have been made. We are not told at this stage whether Joe earned  £45,000 per annum before or after tax, but assuming it is after tax this would amount to  £22,500. He will also be entitled to claim the bonuses which he would have received during that period. At the most this will amount to  £6000, but Joe will have to prove that he would have earned his maximum of  £1000 per month. Whilst the  £650 does not represent wages from the employer, but a collection on the part of the other employees, I would expect it to be deducted from the loss of earnings because otherwise it would represent double recovery as Joe would not have received it without the injury. Assuming Joe returns to work before the trial there will be a further deduction from his loss of earnings award to take account of the fact that he is receiving wages at a reduced rate. For the period of time between his return to work and the trial he will receive a sum representing the net total amount he would have received as calculated above minus the net total amount he did receive as a result of his new position. Future Loss of Earnings Joe’s future earnings have been substantially reduced by the accident. When calculating the future loss of earnings the courts start with the net annual loos of earnings suffered by the Claimant. This sum is adjusted by taking into account other factors such as the loss of a chance to get promoted and increase earnings etc and the fact that the claimant is receiving a capital lump sum now rather than earning it over the years. The final figure is called the ‘multiplicand’. This is multiplied by the ‘multiplier’ which is the number of years for which the loss is likely to continue, usually the number of years between trial and the likely date of retirement. Other losses Joe will also be able to claim the money spent on repairing his bike in the sum of  £1500. He will have to prove the loss in the form of a repair receipt/invoice. Any savings made as a result of the NHS care will be set off against the income claim. Joe will not be able to claim for Darinder’s loss of earnings as they are not a loss suffered by him. However, the fact that Darinder has had to take time off work to help Joe adjust to the disability suggests that he is no longer able to perform household tasks which he would have been able to perform before the accident. Where a member of the claimant’s family voluntarily undertakes to perform those tasks the Claimant is entitled to an award in damages representing the value of those services.[10] The damages will be assessed on the basis of what it would have cost to employ someone else to do the tasks.[11] Other claims against Katy All of the potential claims against Katy will be for psychiatric harm. There are principles to be applied when determining who will be able to claim for psychiatric harm which will be discussed throughout this section. The basic premise is that a duty of care in relation to shock in the sense of psychiatric damage is owed to those foreseeably and directly involved in the horrific event caused by the defendants negligence.[12] Charles  ­Charles was clearly directly involved in the accident as he was in the car at the time. It is not necessary for him to have suffered physical injury to recover damages, the fact that he feared for his own safety and was in fact endangered by the event is sufficient.[13] He was a primary victim of the accident and therefore it is not necessary that Katy foresaw psychiatric injury specifically. The fact that injury was foreseeable is sufficient.[14] Lord Lloyd of Berwick in Page v Smith[15] reasoned that if the psychiatric injury had been as a consequence of a physical injury it would clearly be recoverable. The fortuitous absence of physical injury did not make a difference. Stella Stella witnessed the accident. Psychiatric damage caused by witnessing an event first hand may be recoverable in certain circumstances. Stella clearly perceived the accident through her own senses and was physically and temporally proximate to it as required by Alcock[16] However the third criterion in Alcock is that the witness must have a close relationship to the victim of the accident. Stella was a passer by and therefore would not satisfy this criterion. The only other way Stella could recover damages from Katy is if she could prove that she was a primary victim. The fact that she suffers from post traumatic stress disorder suggests that the accident put her in fear for her own safety and the bike did cross her path. She may therefore be in the same position as Charles. However to recover under this head the claimant must actually have been in danger.[17] Stella might have difficulty proving that she was ever in actual danger as the bike mounted the pavement in front of her not towards her. Darinder Darinder did not witness the accident first hand. The fact that she was told about it by the police officer will not be sufficient to give her the proximity required[18]. It is possible to recover damages if you witnessed the immediate aftermath of the event and that includes the hospital scenes[19]. However it is still necessary that the psychiatric injury be brought about by shock so she will have to show that seeing Joe coming out of an operating theatre caused her shock. Incidentally the close relationship tie is assumed in spousal relationships. With regard to the nervous break down brought about by the continued care of Joe, Darinder is unlikely to be able to recover. The injury must be brought about by a sudden assault to the senses rather than an accumulation of feelings and distress.[20] Overall it is unlikely that Darinder will be able to recover damages unless she can prove she was shocked by seeing Joe coming out of the operating theatre and then she will only be able to recover for psychiatric harm caused directly by that shock. BIBLIOGRAPHY Wise v. Kaye [1962] 1 Q.B. 638 Heil v Rankin [2001] QB 272 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 Hodges v Frost (1983) 53 ALR 373 and Daly v Genera Navigation Co Ltd [1980] 3 All ER 696 Daly v General Steam Navigation Co Ltd ibid Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 Dulieu v White Sons [1901] 2 KB 669 Page v Smith [1996] AC 155 McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 Ravenscroft v Rederiaktiebà ¸laget Transatlantic [1992] 2 All ER 470 McLoughlin v OBrian [1983] 1 AC 410 Taylor v Somerset Health Authority [1993] PIQR P262 [1] Olley v Marlborough Court Ltd [1949] 1 KB 532 [2] Jayaar Impex Ltd v Toaken Group Ltd (t/a Hicks Bros) [1996] 2 Lloyds Rep 437 [3] Thompson v London, Midland and Scottish Rly Co [1930] 1 KB 41, CA [4] Canada Steamship Lines Ltd v R [1952] AC 192 at 208 [5] ibid [6] Ibid per Lord Morton [7] Wise v. Kaye [1962] 1 Q.B. 638 [8] Heil v Rankin [2001] QB 272 [9] Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 [10] Hodges v Frost (1983) 53 ALR 373 and Daly v Genera Navigation Co Ltd [1980] 3 All ER 696 [11] Daly v General Steam Navigation Co Ltd ibid [12] Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 [13] Dulieu v White Sons [1901] 2 KB 669 [14] Page v Smith [1996] AC 155 [15] ibid [16] Note 8 [17] McFarlane v EE Caledonia Ltd [1994] 2 All ER 1 [18] Ravenscroft v Rederiaktiebà ¸laget Transatlantic [1992] 2 All ER 470 [19] McLoughlin v OBrian [1983] 1 AC 410 [20] Taylor v Somerset Health Authority [1993] PIQR P262

Bob Marley Musical Influence

Nesta Robert â€Å"Bob† Marley is known as being the father of reggae music. Bob Marley was the lead singer of the band The Wailers. He spread Jamaican music along with the Rastafari Movement worldwide. Marley brought the mystic power of reggae to the world and is called the Third World’s first pop superstar. He died at Cedars of Lebanon Hospital in Miami, FL of melanoma. Even after his death, Marley remains a global symbol of freedom, peace, and justice, and his songs remain popular worldwide.Bob Marley was born in Saint Ann Parish, Jamaica, on February 6, 1945. Marley began playing music while he was still in school. When he was ten he moved to Kingston; it was there, in 1962, he recorded his first three songs, â€Å"Judge Not†, â€Å"Terror,† and â€Å"One Cup of Coffee. † These singles attracted very little attention. In 1963, Marley and a few others formed a ska band â€Å"The Teenagers,† which went through many names before finally sett ling at â€Å"The Wailers. † Ska music is a Jamaican interpretation of American R&B, with an accent on the offbeat.Bob, Bunny, and Peter were the core trio of the band. They wrote lyrics that told of the struggles the Jamaican poor experienced. The band gained local following fairly quickly, which lead them to incorporate dub, a reggae style of music with the drums and bass foundation in the forefront, in the 1970s. In early 1972, The Wailers were loaned 4,000 Euros to record a record produced by the London offices of Island Records. â€Å"Catch A Fire† was met with international media fanfare and a tour in the UK and US ensued.Their second album, â€Å"Burnin† was released in October 1973 and included such hits as â€Å"I Shot the Sheriff† and â€Å"Get Up Stand Up. † The single â€Å"I Shot the Sheriff† was one of their most widely known hits. Eric Clapton recorded a cover in 1974 which gained The Wailers a large fan base in the US. Bob Ma rley and The Wailers went on their final tour in 1980 that broke attendance records and sold out such venues as Madison Square Garden. Bob Marley’s final performance was September 23, 1980 at Stanley Theater in Pittsburgh, PA.The final album released in Marley’s lifetime, â€Å"Uprising,† was released in 1980 and made a connection to African-American listeners with the single â€Å"Could You Be Loved,† which fused reggae and disco to give a danceable sound. The Rastafari Movement was a key element in the development of reggae music, and Bob Marley was a member of this culture. Rasta is a spiritual movement that worships the Emperor of Ethiopia, Haile Selassie I. The spiritual use of cannabis and rejecting the western society are key themes upheld by the Rastafari Movement. Reggae music is said to have largely helped spread awareness of Rasta worldwide.Bob Marley was a key component in doing so. Marley is also known for having dreadlocks, which is a Rasta custom. They uphold that the bible warns against cutting hair; but not every Rasta has dreads, rather every Rasta has love in their heart and that is what sets them apart. Bob Marley was diagnosed with malignant melanoma in July of 1977, under one of his toenails. It was advised that Marley have his toe amputated, but he refused based upon religious beliefs. It was later confirmed this infection was a spreading of already existing cancer in Marley’s body.He continued touring despite being sick and shortly after the concert at Stanley Theater, became increasingly ill and attempted to fight the cancer using a controversial type of therapy based on avoiding certain substances. After eight months of unsuccessful therapy, Marley was set to return to Jamaica. Marley’s plane was forced to land in Miami, however, as his vitals worsened. The melanoma had spread to his lungs and brain, causing his death on May 11, 1981. He was 36 years old. Marley’s last words to his son, Ziggy, were â€Å"Money can’t buy life. †

Steve Bennett joined a company called Intuit

This paper deals with issues relating to a newly hired CEO of an existing company. The CEO incorporates his own ideas and systems into that company to change the flow of productivity. His implementations had successes and failures. It is important to note the criticism as such in order to best determine what he could have put into place. In January of 2000, an individual by the name of Steve Bennett joined a company called Intuit. Intuit is responsible for the Quicken software, and Bennett served as the company’s president and chief executive officer.There were several factors leading to the success of Intuit. First and foremost, Bennett was not without experience. He spent the past twenty-three years at General Electric and was benefited by the already in-place expertise that Intuit’s already in-place expertise. Bennett’s goal was to have the leaders at all levels of Intuit make decisions that benefited the whole company. However, twenty-four months after his ac ceptance into the company as CEO, Intuit was still struggling with this new concept and the steps Bennett implemented to reach that concept.Several tense moments developed between existing managers. One of the steps was that managers were now expected to concentrate on their own work but also on the work and development of the entire organization. In doing this, the managers were expected remain accomplished. Bennett felt that roles were unclear and not clean cut. There seemed to be no cross organizational procedures in place and he aimed to fix that. It wasn’t long before his intentions became confusing, as the primary focus and responsibility of the managers was convoluted.What formed as a result was a staggering chasm between the two parties. Chaos ensued, as employees were left to weed through new changes, more rules and altered procedures. Many employees made the choice to leave. Others were asked to leave. While it is evident that Bennett initially had a shortcoming in bringing the company together, he was able to write job descriptions and performance objectives for all his direct reports. Nonetheless, the corporate structure of Intuit was weak upon his arrival.Bennett believed in shared vision and collaborative functioning, a concept utilized successfully by other executives and praised in the business. In response to the article All the Wrong Moves, for example, critic Christopher McCormick, praises an executive for â€Å"asking the right questions of the experts in his organization†¦that would lead to more cross-functional collaboration. As a result of collaboration and analysis, Bennett was able determine key players in the organization and was also able to bring in new personnel, reshape the budget and set a new pattern for the future.Critics have argued that Bennett came in too fast and upturned the applecart too swiftly. Perhaps his changes were too liberal for an otherwise conservative operation. Or, as Hauke Moje stated in his All the Wrong Moves critique, it is necessary to â€Å"install firm management rules and build trust within the company. † However, there is no doubt that, as a result of the restructure, the company’s performance has indeed increased and numbers multiplied. Those who survived the initial turnover wave and stayed with the company were rewarded for their patience and assistance.It is necessary to state that Steve Bennett had the expertise to make real changes as well as expectations of success. While this forced some into insecurity about their jobs, Bennett was persistent. He was, as a result, successful in under-layering and transforming Intuit into a collaborative company. He didn’t surrender, even when the road looked bleak. References: Steve Bennett, CEO Intuit – webpage Harvard Business School†¦. Intuit, Inc. Transforming an Entrepreneurial Company into a Collaborative Organization Garvin, David (2006). All the Wrong Moves. Harvard Business Journal.

Current Force That Impact Curriculum Design And Program

Current force that impact curriculum design and program in the 21st century education, and developing an internationally-minded learner in a globalized era. Technology is manoeuvred into our everyday life, and it is evolving rapidly which urge educators to redefine the students’ potentials, and learning to know will never be the same. Technology calls for a change in learning and teaching for the 21st century education. The vast change and innovation of new technologies offer change in people’s understanding and perceiving of knowledge. Moreover, the world is more connected than ever before, and with such connectedness technology and social adaptations to new technologies urge learning and teaching for a change.†¦show more content†¦They are also exposed to television, mobile phones and tablets, they are media literate in the sense that they can download and upload photos, videos, and movies, they can send messages on mobile phones, and able to communicate thr ough the varied social networking, playing video games. Yet, it is still very important to acquire and use the critical thinking skills to analyse the value of the received information. We can no longer afford to ignore the significance of the internet, television, and hand held devices in our students’ life. Those students are fascinated by the advanced technologies. They are also useful teaching tools to be incorporated in todays and future classrooms. And as educators we can have the capability to incorporate them in the classroom lessons to teach our students about the critical thinking. Teaching them the proper attitudes on the internet, searching for and locating accurate reliable information. It tackles the learning styles, and enhance the critical thinking skills. In order to widespread and integrate media literacy in the curriculum teachers should consider it as a vital tool for learning and teaching the curriculum. Should be incorporated into all classroom subject a reas. Education can use technology to implement curricula design to meet the 21st century expectations for students learning, and engage them more deeply in the subject matter. Train teachers to understand and use the technologicalShow MoreRelatedWhat Is The Americorps Program808 Words   |  4 PagesStudy With the AmeriCorps program’s increasing presence in education across the state of Oklahoma, the AmeriCorps programs are vital to school and student success. 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