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Commercial Law Assignment

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Name: Sangeetha D/O Ramesh

Module: Commercial Law

Class: FTDipPLS1

Assessment 2

Date: 9 December 2014

Student ID: CT0208515

Introduction

Ms. Elena is a business woman she went for a business trip to Singapore and stayed at Success Hotel while her stay her valuables were stolen, she was locked in the toilet cubicle while trying to get out the cubicle she fell down and injured herself. She then went to an electronic shop to purchase a laptop and hand phone but it was not what she wanted and it was not in a good condition.

Issue ,Is Success Hotel liable for Elena loss of valuable?

Exemption clause is a clause that excludes or restrict liability in the event of breach of contract. Exemption clause is not against public policy or prohibited by common law and statutes. An example of an exemption clause would be Management not responsible for lost items.

The common law relating to the exemption clause.Terms should be implemented when contract is made. Terms which are included after the contract is made will be void. In case of Olley v Marlborough Court (1949) a couple checked in a hotel.The wife went into the room and saw a notice disclaiming liability for loss of valuables regardless it was given to the management for it to be safe. A thief stole all the valuables. The court held the hotel liable for the loss as the terms of the contract was included after the contract was made which was not in the place of where the contract was made.

There is an exception to the rule for past dealings. If parties have often dealings with each other and contracts with similar clause they are bound by the clause. As they are aware of the clause. In case of Spurling v Bradshaw (1956) defendant sent barrels of orange juice to plaintiff, days later defendant got a document from the plaintiff stating a clause which says liability for loss or damage occasioned by negligence, wrongful act or defect caused by them, their employees or agents. Defendant found that some barrels were empty and some with dirty water which made them take actions on the plaintiff. The court held even the defendants did not get the document on the time the contract was made the clause have been included in the previous contracts in the past years which makes the defendant bound by the clause.

Application of the law, According exemption clause, terms which have been implied in the contract and agreed by parties, plaintiff would be bound by the terms.Elena have been to the hotel several times and have seen the clause in the hotel. It is her mistake to take the risk even after knowing the clause stated.

Conclusion, Elena cannot hold success hotel for the loss of her property under the common law. As she has pass dealings with the hotel. In that fact Elena is bound by the terms.

Issue, Is the hotel responsible for Elena’s injury?

The Rule of Law,The tort of Negligence. A tort which covers both acts and omissions. There are three important essentials that has to be present to succeed in an action for tort of negligence.

First essential will be Duty of Care it is a legal obligation which is also known as “Love your Neighbors” Neighbors are people who are effected by the action caused by a person in case of Donoghue v. Stevenson (1932) plaintiff drank a bottle of ginger beer and noticed a decomposed snail in the end of her drink, she took legal actions by tort law. 

Second essential is Breach of Duty of Care. Breach of duty of care is where a reasonable person does or doesn't do something which is suppose to or not do. A reasonable person is determined by the objective and subjective test. A person who fails to realize the risk of loss to another which a reasonable person would realize is considered as a breach of duty of care.

If duty of care is breached it would depend on the facts of the case. In case of Bolton v Stone (1951) Ms. Stone was hit by a cricket ball on the head while standing outside her house. The incident happened was not foreseeable. Ms. Stone did not have a legitimate claim as the danger was not sufficiently foreseeable.

The third essential will be Damages. Plaintiff has to prove that the damage suffered is because of defendant breach of duty of care. Damages can be losses, injury and death. The two aspects of damages are :

Causation is an assumption if something had happened the damage would not have occurred. In case Barnett v Chelsea & Kensington Hospital (1969) 3 night watchmen went to the hospital and told the nurse about them vomiting for hours after drinking a tea. The nurse called the doctor and told him about it. He told her to send them home and see other doctors in the morning. Hours later one of them died. The wife held the hospital for not giving him treatment, The court said he died in arsenic poison even if the hospital did admitted him that night he would have died. There was duty of care to the watchmen but it was breached however that didn't cause the death of the watchmen.

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