legal claim of negligence

ESSAY 1.

Issue.

Whether there is a legal claim of negligence and if whether there are available remedies and defenses.

Rule.

Negligence was defined by the Court to mean an action omission which, any reasonable man guided by the same circumstances and situation would not do.[1] Negligence is the action that results from a person’s breach of the duty to care. This means that the victim suffers injuries or loss due to the careless actions of another.

The first decision on this matter was in the celebrated case of Donoghue where the Plaintiff, in the company of another person, had purchased a root beer and consumed its content.[2] But upon reaching the bottom of the bottle, she realized that there had been a rotting snail in the beer. The Court held the there was a duty to care for another as yourself. That once the duty of care is breached, the victim suffers damages and injuries.

Furthermore, the Court in Lochgelly Iron stated that the following elements are to be considered to establish a claim under negligence;

1. Duty to care.
2. Breach to the duty to care.
3. Causation.
4. Damages.[3]
5. Duty to care.

In order for Plaintiff to establish a legal claim under negligence, they must prove there was a duty to care. They must prove that the Defendant owed them a duty to care.[4] A duty to care refers to a legal relationship between two parties that is as a result of legal obligations owed to a person by another. This relationship dictates that a person must act in a certain manner to avoid causing harm or injury to another.

1. Breach to the duty to care.

This refers to when a person who owes another a duty to care acts in a manner that is against what is supposed to be done hence injuring the victim. The Court, in analyzing negligence matters, is not concerned with perfect actions on the part of the Defendant but concerns itself with the reasonable person’s test.[5] The Court must concern itself with the question, what would a reasonable man, in the same circumstances have done? If it is proven that the Defendant did not act in a manner similar to that of a reasonable man then it shall declare them guilty.

1. Causation.

The Plaintiff must prove that it is because of the Defendant’s negligent acts that they suffered harm. They must prove the “but for” test. The Plaintiff is burdened with the obligation of proving that the harm could not have been suffered but for the Defendant’s negligent behavior. This burden of proof is lifted by application of the legal principle res ipsa loquitor which translates to the facts speak for themselves. This applies to where the circumstances of the case are clear that the Defendant’s actions or omissions led to the injuries or damage suffered by the Plaintiff.[6]

1. Damage.

It is upon the Plaintiff to prove that they suffered harm or injury due to the Defendant’s breach of the duty to care. Where the Applicant did not suffer any injuries the Court shall not award the Plaintiff any compensation under their claim of negligence.

Analysis.

Jasmine owed other road users a duty to care. As a driver, she has a legal liability to observe traffic rules in order to avoid causing accidents and harm to others other road. There is clear risk and likelihood to cause injuries to others when a driver is not careful on the road. The high risk involved equally translates to the high likelihood to cause harm and hence the high level of duty of care required.[7] In this scenario, if knowing the high risk involved and the high level of duty to care required, Jasmine was not keen, missed the traffic lights and crashed into Marcello. She is guilty of breach of duty to care.

Marcello suffered injuries caused by Jasmine’s negligence. Marcello could not have suffered the injuries he did but for Jasmine’s reckless and negligent actions that caused the crash. However, Marcello, being aware of his pre-existing condition and the high level of risk involved, he failed to take measures such as wearing a helmet while cycling. He failed to protect himself from harm considering his preexisting condition. He is liable for contributory negligence in so far as the injuries he suffered due to the accident.

Otto has the burden of proving that he suffered severe emotional distress due to witnessing the accident. To prove emotional distress the claimant must prove suffering mental trauma, headache or even episodes that necessitated them to seek medical attention or to lose focus while conducting their normal chores and duties. However, to prove emotional distress the claimant is not obligated with proving physical injuries. The Plaintiff must prove that the Defendant acted intentionally or recklessly, the Plaintiff was within the zone of danger, and that the Defendant’s actions caused the Plaintiff harm.

Conclusion.

In order to claim negligence, Marcello and Otto must prove that Jasmine owed them a duty to care, she breached that duty to care, that breach caused those injuries and that they suffered damages. Marcello’s claim of negligence is only as strong as his contribution to the injuries he suffered. Jasmine can claim the defense of contributory negligence in the matter of Marcello. The Court shall only find Jasmine liable for the Injuries suffered by Marcello in the percentage of her contribution. On the other hand, although Otto did not suffer any physical injuries during the crash does not disqualify him from compensation. It is enough that he suffered extreme and reckless stress due to Jasmine’s negligence which impacted his job.

ESSAY 2

Introduction.

Under the Employment Rights Act 1996 and the Equality Act 2010 it is illegal and wrong for any employer to dismiss their employee unfairly. Unfair dismissal includes terminating an employee’s contract before the termination date, dismissing the employee based on their race, sex, religious beliefs, political views or their country of origin or any other illegal basis.[8] Unfair dismissal also occurs where the employer fails to give a good reason for terminating the employee’s employment contract. This was the case in Kwik-Fit Ltd where an employee had arrived at work drunk and used the toilet at his workplace. The manager rebuked him and handed him a final warning. The employee left work furious. He contacted his employer a few days later demanding his wages and further stated that he was going to the employment tribunal. The employer, thinking that the employee had resigned, went ahead and terminated his employment. The Court held however that the employer had acted hastily and unfair in terminating the employment.[9]

The victim of an unfair dismissal is required to take the matter to an employment tribunal within 3 months from the last day of his or her dismissal.[10] When an unfair dismissal occurs, the burden of prove lies solely on the employee to prove it. There are circumstances where the employer may dispute the employee’s claims as to being their employee and hence the victim must provide evidence to prove their employment.

Proof of employment.

The Employment Rights Act describes an employee as any person who has entered into a legally binding work contract with another.[11] Unfair dismissal is concerned with the reasons an employer gives for ending an employee’s contract.[12] As such, the first evidence the victim of unfair dismissal should provide is a contract of employment. The employment contract must specifically stipulate the terms for termination of the employment.

The employer is obligated under the statutory minimum notice requirement to give an employee a notice of termination which is not less than one week for each year of employment, which should include a minimum of one week and a maximum of 12 weeks. The claimant must prove that the employer unfairly dismissed them from their employment contrary to the statutory minimum notice requirement. This can in some instances be difficult to prove if the employment contract did not have an express termination clause. Any person who has been employed for a period of over 2 years is allowed by law to bring a dispute before the employment tribunal when they have been unfairly dismissed.[13]

There are circumstances where some employers have challenged the 2 year period of employed requirement sufficient for an employee to bring a dispute. This was the issue R v Secretary of State where the qualifying period was challenged based on gender because only a smaller portion of women qualified as opposed to the higher number of men. The court stated that the qualifying period was justified since its main purpose was to create employment opportunities as well as eliminate the tactics of employers who refused to take on employees.[14]

Reforms to employment status requirement for unfair dismissal.

One of the areas that need reform is the 2 year qualifying period requirement. As discussed before, female employees are often affected because they are often at a disadvantage due to matters such as maternity leaves. Although in the past this matter was challenged in R v Secretary of State and the period reduced to 1 year qualifying requirement, it was raised to two years as a standard requirement.[15] There is a need to have changes to this qualifying period requirement to take into consideration the impact of female works. The Equality Act 2010 provides that no employee should be discriminated against based on their gender. This is however being ignored under the unfair dismissal requirements.

There is a need for the law to revisit the matter of employment contract. It is clear that unscrupulous employers avoid offering their employees employment contracts to avoid the legal obligations that come with it. This affects an employee’s bargaining powers during disputes. There is an urgent need for the law to recognize that a person can qualify as an employee even without an employment contract.

Conclusion.

Employment laws in the UK classify people as either employers, employees, workers or self-employed. In the event that a person is a company’s employee and is unfairly dismissed from their employment, they may have to prove their employment status before they can be awarded any compensation. However, it is not an easy task to prove where the victim did not sign a work contract, has no proof of the qualifying period requirement or has no other tangible evidence to prove he was an employee. It is for this reason that reforms such as the reduction of the qualifying period are necessary.

ESSAY 3.

Board of directors for a Public Limited Company.

A public limited company (PLC) is a limited liability with company shares that can be traded to the general public. The composition of the PLC board structure includes at least two directors and a company secretary. A company director must be at least 16 years old. The directors form a single board for the company and exercise their legal obligations either as management or supervisory. The directors can either be managerial directors who have managerial obligations over the company or supervisory directors who supervise the other directors, the company secretary and other company employees to ensure that everything is handled transparently. The directors must also appoint, by way of votes, a chairman of the board of the directors.

Under the Companies Act, company directors have exercise duties such as promoting the success of the company by making sound business decisions on behalf of the shareholders as well as acting in good faith when exercising their fiduciary duties.[16] They must also exercise reasonable care while carrying their obligations, apply skill and act with due diligence.[17] They must act with their directors’ powers as authorized within the company’s official legal documents.[18] While deliberating on important managerial issues, company directors are expected to exercise independent judgment as well as doing so by avoiding creating conflicts of interest.[19] Finally, the directors are prohibited from accepting benefits from third parties in attempts to make certain decisions concerning the company.[20]

Difference between a public limited company and a private limited company.

1. Formation and company business.

A public limited company can be formed with at least seven members while two members are enough for the formation of a private limited company. There is no maximum number of shareholders for a public limited company while the maximum number of shareholders for a private limited company is set at fifty members. A public limited company has a minimum of two company directors while a private company has a minimum of one company director. For one to qualify as a director in a public limited company they must have the required number of shares in that company. This is not a requirement for the directors of a private limited company.

Two thirds of the board of directors of a public limited company are legally required to retire from management while this is not made compulsory for the private limited company.

The public limited companies exercise restrictions on the directors’ remuneration while private companies have no such restrictions and hence the company director’s remunerations are at the discretion of the company.

A public limited company must organize a statutory meeting within six months from the official date of commencement of business and file the statutory report with the Registrar of Companies.  When holding an official company meeting, a public limited company must have at least 5 people present while a private limited company can hold a company meeting with just 2 people present.

• Commencement of company business.

A public limited company becomes operational after obtaining the Certificate of Commencement of business and the Certificate of Incorporation. A private limited company only requires a Certificate of Incorporation in order to start business.

• Issue of prospectus.

The law allows public limited companies to trade their company shares to the general public. However, the public limited company can only start inviting the public to subscribe its shares, the company must issue a prospectus. In the absence of the prospectus, the company is allowed to issue a statement in lieu of prospectus.

On the other hand, a private limited company is prohibited from inviting the general public to trade its company shares.

• Annual report and inspection of annual accounts

A public limited company is required to file an annual report with the Registrar of Companies. This report is public and can be accessed by any interested person. The report and annual accounts can be inspected by the company shareholders and any concerns can be raised at the company’s meetings. The private limited companies are not required to file their annual report with the Registrar of Companies. A private limited company’s annual accounts are not public property and cannot be inspected by anyone other than the company members.

Role of the Company Secretary and the authority a company secretary has to enter into contracts on behalf of a company.

Unlike private limited companies that are not legally obligated to appoint a company secretary, public limited companies are required to appoint one. The roles of the company secretary include, but are not limited to the following;

1. Maintain the company’s registered office and be sure to inform the Companies House of any changes of the company’s official address.
2. Arrange, organize and attend all company board meetings and minute the meetings.
3. File the company’s financial statements which include a detailed list of the company’s assets and liabilities.
4. Maintain the company’s statutory records which include company minutes, a register of shareholders and a register of the directors.
5. Keep the company’s legal documents including the Certificate of Incorporation, the share certificates, the company’s seal and the memorandum and Articles of Association.
6. Advice the company directors on their legal responsibilities. This includes reminding the directors of their corporate and governance duties.
7. Must file confirmation statements which also includes the statutory returns.
8. Must maintain communication with the company’s shareholders by ensuring the smooth circulation of announcement, letters of the company’s dividends, information on the transfer of company shares and the registration of share ownership.
9. The company secretary can also sign the official company documents if authorized as the legal signatory of the company. This role is executed by signing the company’s cheques, bank reports, and confirmation statements.

A company secretary has the authority to enter into some contracts on behalf of the company. This authority is executed by the signing of important legal documents pertaining to the company. This included every day administrative decisions that require the company secretary to contract on behalf of the company. This was emphasized in Panorama Development Guildford Ltd v Fidelis Furnishing Fabrics Ltd where the Court observed that the authority of the company secretary goes beyond those of a mere clerk. Unlike a mere clerk, a company secretary can bind and commit the company in administrative matters.[21] This authority to contract on behalf of the company includes matters such as employing other company personnel, contractual matters relating to renting or leasing of premises to be used as the company’s offices, acquiring the office equipment and facilitating the general management of the company.

However, a company secretary cannot exercise contractual authorities on behalf of the company without authorization of the board of directors to call a company meeting, register the transfer of company shares, ask for a loan from the bank, or change the register of members. In case the company secretary does any of these without the authorization of the board of directors, he or she shall be liable for and be sued for breach of the employment contract. The company secretary is additionally held personally liable if he signs or authorizes the signing of a bill of exchange, a cheque, a promissory note or an endorsement without prior authorization of the company’s directors. 

References.

Legislations.

Companies Act 2006

Employment Rights Act 1996

Equality Act 2010

Case law.

Blake v Galloway, [2004] EWCA Civ 814

Blythe v Birmingham Waterworks, (1856) 11 Exch 781

Donoghue v Stevenson (1932) AC 562

Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183

Lochgelly Iron and Coal Co Ltd v McMullan (1934) AC1 25

Northwestern Utilities v London Guarantee & Accident Co Ltd, (1935) 53 Li.L.L Rep 67

Panorama Development Guildford Ltd v Fidelis Furnishing Fabrics Ltd, [1971] 2 QB 711

R v Secretary of State for Employment ex parte Seymour-Smith and Perez (No.2) (2000)

Scott v London and St Katherine Docks, (1865) 3 H & C 596

[1] Blythe v Birmingham Waterworks, (1856) 11 Exch 781

[2] Donoghue v Stevenson (1932) AC 562

[3] Lochgelly Iron and Coal Co Ltd v McMullan (1934) AC1 25

[4] Blake v Galloway, [2004] EWCA Civ 814

[5] Blythe v Birmingham Waterworks, (1856) 11 Exch 781

[6] Scott v London and St Katherine Docks, (1865) 3 H & C 596

[7] Northwestern Utilities v London Guarantee & Accident Co Ltd, (1935) 53 Li.L.L Rep 67

[8] Section 4, Equality Act 2010

[9] Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183

[10] Section 111 (2) (a) Employment Rights Act 1996

[11] See Section 230 (1), Employment Rights Act 1996

[12] See Section 94, Employment Rights Act 1996

[13] Ibid

[14] R v Secretary of State for Employment ex parte Seymour-Smith and Perez (No.2) (2000)

[15] Ibid

[16] Section 172, Companies Act 2006

[17] Section 174,Companies Act 2006

[18] Section 171, Companies Act 2006

[19] Section 173 & 175, Companies Act 2006

[20] Section 176, Companies Act 2006

[21] Panorama Development Guildford Ltd v Fidelis Furnishing Fabrics Ltd, [1971] 2 QB 711

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