M1:
Exclusion clause: is a term in an agreement which expects to avoid one of the parties from
obligation or liability or limit the individuals liability to particular recorded conditions,
situations, or circumstances. It can be embedded into a contract which expects to exclude or
limit one's liability for breach of contract or negligence. However the party may just depend on
such a condition if
1. It has been incorporated into the contract
2. It has been made clear
3. Adheres to the unfair contract terms act 1977 (UCTA) And the unfair terms an consumer
contract regulations. Statutory control.
In the above case if there is no negligence then the exclusion clause is valid since Adriana saw
Limitation of Liability document while travelling on the car. This document says that City Car
Rentals will not be liable for any injury caused by a defect in the car unless the defect was as a
result of City Cars Rentals negligence.
D1:
Case law which manages guidance in the matter of what exclusions or
restrictions of liability for negligence will be regarded as reasonable.
However, unless the work undertaken presents strange troubles, or is
required to be completed in uncommonly troublesome circumstances, it is
reasonable to accept that an exclusion of liability for negligence may be
dealt with by the courts as absurd. A limitation of liability for negligence to a
specific entirety will all the more promptly be dealt with by the courts as
reasonable, especially if the accountant depending upon it can demonstrate
that he or she would experience issues in acquiring proficient repayment
protection for any more prominent whole. While breaking down the case law
Exclusion clauses are constantly valid in the above case.
4.1 Applications of the elements of tort of negligence and defences in
different business situations:
There are some broad conditions which must be satisfied or fulfilled before a man can be held
subject for any tort. Negligence is one of such vital components and it has huge impact in the
standard course of different business hones. However negligence can be both, a component and
additionally a defense in appropriate cases of business.
Negligence as elements:
Negligence is the lack of application of reasoning and customary reasonability with respect to the
defendant for, that he can be held subject for any harms results from such harms. In each
business rehearse or as such, contract it is the obligation of both the parties to act and carry on in
a sensible and savvy way and perform his commitment constantly. Thus as a independent tort
negligence implies the punishment of harm by breach of a legal duty to fare thee well which the
defendant owed to the offended party(plaintiff). This if there happens any breach or any party
suffer loss for the negligent over the negligent act and omission of the other, it will entitled the
offended party look for help and damages for such negligent behave.
As a defense, contributory negligence:
Contributory negligence is a special defense to an action for negligence. When any breach,
damage or accidents happens not solely because of the negligence of the defendant but also
partly due to the absence of customary care on the plaintiffs part, the part of the negligence of
the plaintiff is called contributory negligence because it also contributes towards bringing about
of the consequence. The defense of the contributory negligence will fall flat if there is no lack of
customary care and attention on the plaintiffs part. Therefore Brad can recover his losses by
applying the elements of tort of negligence.
3.1 Differences between liabilities in Tort and Contract:
As to the source of interest and duty: The interest for tort and its duty are made by law however
if there should be an occurrence of agreement they are made by the understanding between
parties to the contract.
As to the nature of duty: In tort obligation not to breach the interest of someone else is toward
persons by and large, not to a specific individual. In contract such obligation is just towards the
parties to the agreement and not towards any outsiders.
As to nature of remeady: In tort damages are constantly un liquidated however for break of
agreement liquidated damages can be guaranteed where indicated in the agreement.
Others: Even where un liquidated damages are claimed the standard of risk in tort and contract
vary. In contract damaged are of compensatory nature aside from in the event of agreement of
marriage and activity by merchant against his broker for shaming his check while there is
adequate equalization shockingly. In tort, then again, praiseworthy may in certain be
recompensed by the court.
P3.2 Explanation of the nature of liability in negligence
The negligence claim & nature of liability have been analyzed by the lawyer & specialist
historically. Here we are going to discuss four basic nature of liability in negligenceDuty of care- As per the duty of care a inividual is going to be compensated for that loss actually
happened to him/her & that must be reasonable but one needs to prove successfully the amount
of losses happened (Mark Lunney et al. 2003).
Breach of Duty-an obligation should be settled paying little heed to in the event that it is broken
or not, once it has been prover that the specific defendant owed obligation to the inquirer. Here
the test can be either target or subjective or can be both.
Direct cause-it is also called factual causation. The basic question that is attempted to reply here
is if the loss is going to happen in any case if the charged party does not breach the agreement to
the injured party (Van Gerven, W. et al.2001).
Legal causation- according to Grace, D., and S. Cohen. (2005), sometimes a distinction is made
between factual causation & legal causation in order to avoid the loss that the injured party may
supposed to expose.
M2
Strict liability applies when a defendant places someone else in threat, even in the lack of
negligence, just in light of the fact that he is ownership of a perilous item, creature or weapon.
The offended party need not demonstrate negligence.
Liability under Rylands v Fletcher is now regarded as a particular type of nuisance. It is a form
of strict liability, in that the defendant may be liable in the lack of any negligent conduct on their
part. Imposing liability without proof of negligence is controversial and therefore a restrictive
approach has been taken with regards to liability under Rylands v Fletcher. There have been
attempts to do away with liability under Rylands v Fletcher but the House of Lords have retained
it.
Requirements
1. Accumulation on the defendant's land
2. A thing likely to do mischief if it escapes
3. Escape
4. Non-natural use of land
5. The damage must not be too remote
