Tort law - Duty of care and negligence, Essays (university) of Contract Law

Download Tort law - Duty of care and negligence and more Essays (university) Contract Law in PDF only on Docsity! MINISTRY OF EDUCATION AND TRAINING HO CHI MINH UNIVERSITY OF LAW ---------- ADVANCED PROGRAMS FACULTY ******** SUBJECT: TORT LAW Class: CLC44B – Group 6 Lecture: Ph.D Hà Thị Thanh Bình Number Name Student ID Note 1 Hồ Hà Phương 1953801011217 Leader 2 Võ Quỳnh Như 1953801014163 Member 3 Phạm Hoàng Phúc 1953801013169 Member 4 Nguyễn Như Minh Phương 1953801015172 Member TABLE OF CONTENT 1. Whether Peter liable for negligence...................................................................4 1.1 Whether Peter liable for David’s injuries........................................................4 Whether Peter owe the duty of care...........................................................................4 Whether Peter breach his duty of care......................................................................4 Whether David suffer injury......................................................................................4 Whether there is a causal link between the Peter’s act and the injury that David has suffered..................................................................................................................5 1.2 Whether Peter liable for the death of David’s pet...........................................5 1.3 Whether Peter liable for negligence infliction of emotional distress..............5 2. Whether the security liable for David’s injury..................................................6 1. The elements that arise liability to compensate for extra-contractual damage ................................................................................................................................... 7 2. The compensation for damage caused by harm to health (Breaking David’s arm)..........................................................................................................................7 3. The compensation for damage caused by harm to property (The death of David’s ferret)..........................................................................................................9 2  Whether there is a causal link between the Peter’s act and the injury that David has suffered - “But for” principle: damage to the claimant must be result of the defendant’s breach. Peter’s act directly caused David’s injury. Without Peter’s act, David could not suffer any harm. - Conclusion: Peter is liable for David’s injury. 1.2 Whether Peter liable for the death of David’s pet - In order to claim for negligence, the claimants have to prove the following elements: 1. Does Peter owe the duty of care? 2. Does Peter breach his duty of care? 3. Does David suffer injury or loss of property? 4. Is there a causal link between the Peter’s act and the injury that David has suffered? - As above analyze Peter has duty of care to avoid act that can reasonably foresee as likely to cause injure or loss of property to the neighbor. But the question is whether Peter foresee that his act will cause damage to David’s property “the ferret”? the answer totally not. The ferret is a small animal. It was put in David coat pocket. There is no signal to warn Peter that there was a ferret in David’s coat pocket. => Peter isn’t liable for the death of David’s ferret. 1.3 Whether Peter liable for negligence infliction of emotional distress - In order to claim for emotional distress, the claimant need to prove the following elements:  A close relative was killed or injured by the defendant. In this case, the main question is whether claimant can claim for emotional distress by the death or injury of animals which are the claiman’s “relative” or “family member”? There are two situations. 5 (i) The claimant cannot claim for the death or injury of animals because animals deemed personal property. Therefore, animals can not hat rights or duties or be bound by law (Jeremy Waldron, The Right to Private Property 27 (1988)). The claimant can recover the fair market value, replacement value or the special value to the owner. i.g 2006 Code of Virginia § 3.1-796.127; Kaufman v. Langhofer , 222 P.3d 272 (Ariz. Ct. App. 2009)) (ii) The claimant can claim because animals deemed “relative”. Especially in the case of owners who are disabled, aged or lonely, an emotional bond may exist with a pet resembling that between parent and child, and the loss of such an animal may give rise to grief approaching that attending the loss of a family member.  The plaintiff suffered severe emotional distress. - There are two type of mental distress: first, the shock and distress caused by seeing an accident or mistreatment, and second, the grief and long-term effect the loss has on their lives. The claimant has to prove that the death of injury of the animal affect to their live such as soughed to medical treatment or suffered physical harm.  The plaintiff’s mental distress resulted from a sensory and contemporaneous observance of the accident. The claimant must directly observe the accident. - In this case, David saw the death of his pet. In order to claim for mental distress, the claimant must prove that pet has special relationship to claimant. - There is a fact that Court in most states don’t allow claim for emotional distress. => Peter isn’t liable for negligence infliction of emotional distress because David is not a special case. 2. Whether the security liable for David’s injury - Under vicarious liability principle, an employer is liable for the torts of those working for him or her under a contract of service, provided that the tortious behavior of the employee is sufficiently closely connected to the employee’s work. In order to apply this principle, these following elements must be proved: + Had there been any act of tort? There was no act of tort. In this case, the security personnel were complying with the new regulation rule. 6 + Did the claimant suffer any injury or lost? Yes. The claimant suffer physical lost and personal property lost. + Is there a causal link between the act of tort and the injury that David has suffered? No. There is no causal link between security personnel’s act and claimant’s loss and injury. The act of personnel does not directly cause claimant’s loss and injur + Was the security personnel acting within the scope of employment? (i) Did the act occur substantially within the time period of employment authorized by the principal? claimant’s loss and injury occur before the additional security check. (ii) Did the act occur substantially within the location of employment authorized by the employer? The personnel was at the airport where employment authorized by the employer. - In conclusion, the security company is not liable for David’s loss and injury. III. UNDER VIETNAMESE LAW 1. The elements that arise liability to compensate for extra-contractual damage - Refering to the Resolution 03/2006/NQ-HDTP, it is accountable for paying damages that result from the following four elements: + Damage is required + There must be illegal acts committed + There must be the cause-effect relations between damage caused and illegal acts. The damage caused must be the indispensable results of the illegal acts and vice versa the illegal acts are the cause of the damage +  There must be intentional or unintentional faults of the damage causers 2. The compensation for damage caused by harm to health (Breaking David’s arm) 2.1 Material damage - Damage is required: David suffered a broken arm and lost his pets. 7