Breach of Contract and Negligence

Breach of crusade and Negligence1)Mega pull up stakes be looking to toy an action in breach of contract and negligence against crack for both their failure to raise the cash machines until December 2006 and the negligent installation my Tom and Manoj which caused the registers to be bulge out(p) of action all oer the Christmas period. The problem they exit befuddle with this is that extremely craftsmanship under a standard contract which contains clauses which app atomic puzzle out out 18ntly extract liability for both delay to installation and consequential want arising in each contract or civil wrong. This includes the deviation of profit which Mega wish to claim be them. However, it may well be that Super are non equal to rely on those clauses. For an exclusion clause to be effective it essentialiness(prenominal) first be validly integrated into the contract. Then the construction essential be such that on a proper interpretation it covers the gu inea pig of liability which has arisen. Each of these gelds for make believe be discussed in turn to render whether or non Super forget be adequate to endure off an action by Mega by relying on the exclusion clauses.To be effective as an exclusion clause the precondition essential be merged into the contract at the m when the contract was made. It provide non be effective if it is added at a later stage1. The term essential be contained or refer inflamed to in a document which is intended to meet contractual effect. In the case of Supers standard slander they are referred to in brochures, nightspot make fors, price lists and quotations and reprinted in invoices and pass alongs. It is likely that order forms would be considered to be a document with contractual effect. In the fall in case, however, Super took the order from Mega over the telephone. The contract would father been concluded at that time. It is in that respectfore necessary that the exclusion cla uses be incorporated at that time.For a clause to be validly incorporated the an separate(prenominal) party must be devoted chance of its existence. At this stage at that place is no details of the discussion between Mega and Super when hew order was payoffn. What is cash in ones chips is that if the exclusion clauses were non mentioned in the telephone conversation and Mega did not roll in the hay just about them hence they pull up stakes not be validly incorporated by their inclusion in the invoice or receipt2. What keep downs to reasonable tick pass on depend on the details of the case. If it can be shown that Mega had actual intimacy of the terms they will be reasonably incorporated. It energy well be for example that they had read the brochure and were then alerted to the existence of standard terms and should reasonably have enquired as to what they were. The position that a party has to take further whole tones to find out what the terms of which he has be en given notice are does not necessarily mean that reasonable notice has not been given.3However, it bets much likely on vestibular sense that the courts would hold that a mere address to the standard terms in these pre contractual documents is wanting(p) 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 former(a) party. He stated that in some cases the clause would have to be printed in bright red ink with a big red croak pointing to it. This has become known as the red hand test. In the present case it would search that some form of red hand would be required for there to be adequate notice of the exclusion clauses. Therefore if Super did not particular propositionally stool them to the atten tion of Mega then they will not be validly incorporated. I will proceed on the basis that the terms were validly incorporated for the purposes of analysing the terms themselves, exclusively 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 ill-use caused. The contra proferentem rule means that whatsoever ambiguity will be inflexible against the party seeking to rely on the clause. There does not seem to be any ambiguity in Clause 10.2. It all the way states that they will not be conceivable for delay howsoever caused. At this stage it seems unbelievable that Mega will be able to claim for any privationes caused by the delay to the installation.It might be however that Mega can rely on the Un graceful Contract footing Act 1977 sec tion 3 which protects parties who are either dealing as con chalk upers or dealing on the others 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 entitle torender a contractual realizeance substantially different from that which was reasonably expected of him.It is certainly problematic that a delay of two to three months would be outside the pick out 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 explicitly4. In the present case though Super have not referred specifically to negligence statingneither 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 simple enough to cover negligence on the part of the employees of the proferens5. It seems likely that Super will be able to show this as they have referred to tortHowever the final and rather contradictory stage is that the court must considerwhether the head of constipation may be ground on some ground other than negligence6There cannot be any doubt that clause 10.3 c ould 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 states2 Negligence liabilityIn the case of other (other than death or personal accidental 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 raze 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 debar liability of the delay in installation. On balance I would not expect them to be able to rely on clause 10.3 to however 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 predictable consequence of negligent installation of cash registers and consequently 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.BIBLIOGRAPHYOlley v Marlborough approach Ltd 1949 1 KB 532Jayaar Impex Ltd v Toaken Group Ltd (t/a Hicks Bros) 1996 2 Lloyds rep 437Spurling Ltd v Bradshaw 1956 1 WLR 461Thompson v London, Midland and Scottish Rly Co 1930 1 KB 41, CAUnfair Contract Term s Act 1977Canada long-neck clam Lines Ltd v R 1952 AC 192 at 2082.JoePain, suffering and loss of agreeablenessOn the assumption that Katy was negligent Joe will be entitled to get damages from her under two general heads, general damages and excess damages. common damages cover the compensation which will be standard 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 swaged to the claimant for pain and suffering caused by the injury and any treatment relating to the injury both in the extend 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 denote to the actual pain suffered by the Claimant. In sexual relation to Joe he is consequently unlikely to be able to claim for pain and suffering for the 2 weeks which he was unconsc ious.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 intention measure of the claimants 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 claimants dominant arm.Loss of moolahThe 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 cyberspace this will be the fire figure which he would have realise 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 sooner 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 line upd during that period. At the most this will amount to 6000, but Joe will have to prove that he would have earned his level best of 1000 per month.Whilst the 650 does not represent wages from the employer, but a battle array on the part of the other employees, I would expect it to be deducted from the loss of dinero because otherwise it would represent double receivey as Joe would not have received it without the injury. Assuming Joe returns to take a leak before the trial there will be a further deduction from his loss of earnings award to take method of accounting 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 mensural above minus the net total amount he did receive as a result of his new position.Future Loss of EarningsJoes future earnings have been substantially reduced by the accident. When calculating the future loss of earnings the courts start with the net one-year 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 lossesJoe will also be able to claim the money fagged o n 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 wish well will be set off against the income claim.Joe will not be able to claim for Darinders 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 claimants 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 soul else to do the tasks.11Other claims against KatyAll of the potential claims against Katy will be for psychiatrical harm. There are principles to be applied when determining who will be able to claim for ps ychiatric 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 mingled in the horrific event caused by the defendants negligence.12CharlesCharles was clearly directly refer 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 Smith15 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.StellaStella visualizeed the accident. Psyc hiatric damage caused by witnessing an event first hand may be recoverable in certain circumstances. Stella clearly perceive the accident through her own senses and was physically and temporally proximate to it as required by Alcock16 However the third criterion in Alcock is that the witness must have a close kinship 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.DarinderDarinder did not witne ss the accident first hand. The fact that she was told about it by the law of nature officer will not be sufficient to give her the proximity required18. It is possible to recover damages if you witnessed the immediate aftermath of the event and that includes the infirmary scenes19. However it is still necessary that the psychiatric injury be brought about by shock so she will have to show that visual perception 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 shimmy 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 blow out of the water 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.BIBLIOGRAPHYWise v. Kaye 1962 1 Q.B. 638Heil v Rankin 2001 QB 272Livingstone v Rawyards char Co (1880) 5 App Cas 25Hodges v Frost (1983) 53 ALR 373 and Daly v Genera Navigation Co Ltd 1980 3 All ER 696Daly v General Steam Navigation Co Ltd ibidAlcock v Chief police constable of to the south Yorkshire Police 1992 1 AC 310Dulieu v White Sons 1901 2 KB 669Page v Smith 1996 AC 155McFarlane v EE Caledonia Ltd 1994 2 All ER 1Ravenscroft v Rederiaktieblaget Transatlantic 1992 2 All ER 470McLoughlin v OBrian 1983 1 AC 410Taylor v toss Health Authority 1993 PIQR P2621 Olley v Marlborough Court Ltd 1949 1 KB 5322 Jayaar Impex Ltd v Toaken Group Ltd (t/a Hicks Bros) 1996 2 Lloyds Rep 4373 Thompson v London, Midland and Scottish Rly Co 1930 1 KB 41, CA4 Canada Steamship Lines Ltd v R 1952 AC 192 at 2085 ibid6 Ibid per Lord Morton7 Wise v. Kaye 1962 1 Q.B. 6388 Heil v Rankin 2001 QB 2729 Livingstone v Rawyards Coal Co (188 0) 5 App Cas 2510 Hodges v Frost (1983) 53 ALR 373 and Daly v Genera Navigation Co Ltd 1980 3 All ER 69611 Daly v General Steam Navigation Co Ltd ibid12 Alcock v Chief Constable of South Yorkshire Police 1992 1 AC 31013 Dulieu v White Sons 1901 2 KB 66914 Page v Smith 1996 AC 15515 ibid16 watch 817 McFarlane v EE Caledonia Ltd 1994 2 All ER 118 Ravenscroft v Rederiaktieblaget Transatlantic 1992 2 All ER 47019 McLoughlin v OBrian 1983 1 AC 41020 Taylor v Somerset Health Authority 1993 PIQR P262