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Question 1
Exceptionally heavy rain over a long period of time causes flooding in a region of England. This results in the run-off of agricultural chemicals and pesticides from land belonging to Giles, who farms in the region. As a result, a local river and surrounding land is polluted. Flooding from Giles’ land also causes a large quantity of diesel fuel from rusty and leaking tanks on his farm to be dispersed into the surrounding area. Giles faces the following claims for compensation from:
(a) residents of a nearby housing estate. They are claiming for damage to plants and trees in their gardens and to their houses caused by the pesticides, chemicals and
diesel fuel in the flood water;
(b) the owner of The Angler’s Arms, a public house near the river, for loss of revenue. Most of the customers at the public house are anglers, and their numbers have
declined sharply since the river was polluted. Giles says that none of this is his fault as he cannot control the weather and, in any event, he has been farming the land for 35 years, while the housing estate was developed only five years ago. He says that the residents knew his farm was there and should have bought houses somewhere else if they did not like living in the countryside.
Discuss the extent to which, if at all, Giles is liable for each of the two types of claims made against him. Your answer should identify the torts that Giles may have committed and include a brief explanation of what the claimants would need to prove for each of the torts you have identified. Six marks are allocated for the discussion relating to the residents of the housing estate and four marks for the owner of the Angler’s Arms for loss of revenue.
Answer:
In this case of Giles, Tort of negligence may have been committed by him. Negligence means failure on the part of the defendant to take care as a reasonable person would take and under the circumstances are such that care should be taken as per the law and the situation arises for a person, who suffers harm or loss to claim damages.
Three things are necessary for taking an action for the tort of negligence:
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1) Defendant owed duty of care to the claimant
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2) Defendant commits breach of duty owed to the claimant
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3) Due to the breach of duty owed by the defendant, the claimant has suffered damages.
In the case of Donoghue v Stevenson (1932) Ac 562, a general principle of duty of care called neighbor principle or neighbor test was set up. Lord Atkin expressed that Love your neighbor in law means one must not injure their neighbor. It means that a person must take reasonable care to do acts or omit to do acts that can be reasonably foreseen that there are chances of injuring his neighbor (Law of torts, 2011). Thus, the principle of neighbor is of reasonable foreseeability, which implies that a person owes duty of care to another if it is foreseen reasonably that doing or omitting the acts could affect the other person. In this case of Giles, it was reasonably foreseeable that the neighbors would be affected and Giles owed duty of care which he breached. A breach of duty is committed if the defendant does not take reasonable precautions. Thus Giles should have taken reasonable precautions and prevented harm or loss to the neighboring estate and Angler's farm.
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The other tort Giles could be liable for is private nuisance.
Private nuisance is interfering with the person's enjoyment or use of land illegally or unlawfully and it is in respect of the area attached to it or houses and buildings attached to intuit is in the form of letting harmful things from one's property into the claimant's land to cause interference with the claimant's land. In this case Giles, it is a private nuisance by letting pesticides and other things into the neighboring estate and causing the pollution of the river, the damage must result due to interference. Giles interference had caused damage both to the neighboring estate and Angler’s farm. Though Giles can defend, stating it as an act of God, as was not aware of the floods, but owed duty of care to the neighboring areas (Law of torts, 2011).
The claimants need to prove that they suffered damage actually due to Giles allowing pesticides, chemicals and diesel fuels into the land of the estate owner, damaging their trees, garden plants and houses and that Giles owed a duty of care and had breached the duty of reasonable foreseeability and could have prevented the damage caused to them and that private nuisance was also caused resulting in damages. Angler’s Farm suffered loss due to pollution of the river, as the numbers of anglers declined. The Anglers farm has to prove the loss suffered due to river pollution as their customers were anglers who stopped coming resulting in loss of revenue as Giles allowed pesticides, chemicals and diesel fuel into the river causing pollution of river water.
Question 2
Charlene who is 19 years old enters a televised talent competition which is to be shown live every Saturday night for ten weeks. The final round of the competition is due to take place in London on Saturday the 10 December and Charlene books six rooms in a London hotel for that one night for family members who are fans of the competition and want to see her live performance. She agrees the room rates by telephone, but nothing is put in writing between her and the hotel. When Charlene is eliminated from the competition on the 3 December, she telephones the hotel to cancel the booking. She explains that circumstances have changed and the rooms are no longer required. The hotel states, that in accordance with its standard terms and conditions, she will have to pay in full for each room if she cancels them, and suggests that she and her family can still have a night out in London. The hotel e-mails its terms and conditions to Charlene after the telephone call. Charlene’s family refuses to pay for the rooms, arguing that it was just a family arrangement that they would support her performance. They say there was no contract between themselves and either Charlene or the hotel.
Discuss Charlene and her family’s legal obligations towards each other and the hotel, and explain how compensation, if any, is likely to be calculated. Refer to relevant case law where appropriate.
Answer:
In this case of Charlene, oral talks between the hotel and Charlene are considered to be a contract as provided in the provisions of contract laws in U.K. Contract is usually made by offer and acceptance. Part B1A provides that an offer may be made in writing or orally or by conduct. Acceptance of the offer will give rise to a contract, if all the terms of the contract are agreed upon by the parties (Law of contract, 2011). Acceptance too, like offer can be either written or oral or may be on the basis of the conduct. Section B3 provides that there should be an intention to create legal relations. Consideration is described as the price or money to be paid in lieu of promise (Law of contract, 2011). Thus Charlene and her family cannot say that there was no agreement or contract for booking a hotel for 10th December as the rates for hotel booking were decided by Charlene on the phone which means there was an offer by Charlene and acceptance of offer by hotel for booking six rooms for 10th December, and the consideration was a prom7se to pay for the six rooms booked by Charlene.
Though Charlene informed about the change in circumstances to hotel on 3rd that is much in advance, the hotel cannot charge the full rate at which the rooms were booked, In order to enforce the contract.
In this case Section E2B provides for anticipatory breach of contract, the party may inform or indicate before the time of performance of the contract that they will not be able to perform the contract. Section E2C provides that a breach of contract gives the right to the injured party to claim damages. E3 provides for frustration of contract, which means that due to certain turn of events or circumstances, it is difficult to perform the contract. Section E3C provides that non-occurrence of an event on which contract was based, then the basis of the contract is completely removed for discharge. In the case of Krell v Henry (1903) 2 K.B. 740, the defendant had booked the claimant's rooms to watch the coronation procession, but the coronation procession was cancelled, so defendant refused to pay the rent. It was held by the Court that as the procession was cancelled, the contract was discharged and the rent may not be paid (Law of contract, 2011). Thus, in this case, Charlene's case is similar to the case of Krell v Henry and the cancellation of her talent competition final round as she was eliminated from the competition would discharge the contract.
However the remedy for breach of contract in common law is an award of damages. In order to claim damages, the claimant must prove that they have suffered loss and If the claimant has not suffered loss, then in that case nominal damages are awarded that means only a token amount
Charlene's family members are equally liable along with Charlene for the payment of nominal damages, as Charlene had booked the rooms for them so that they can see the final round of competition. Thus Charlene may not have to pay the full amount, the Hotel is entitled to nominal damages and even if the terms and conditions of hiring rooms provide that they will claim full amount, the Court can interfere. (Chapter 4)
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Kelly, a famous model who lives in London, asks John, the proprietor of her local garage, to find a vintage Rolls-Royce car for her, saying that she wants something very special and rare to be seen in. She has asked John to find cars for her on a number of previous occasions and has always rewarded him with a cash sum amounting to about 10% of the value of the car. John eventually locates a very suitable Rolls-Royce car for sale at a garage owned by Edward in Edinburgh, Scotland. He takes the train up to Edinburgh and agrees to buy the car for £100,000. He does not tell Edward that he is buying the car for Kelly, because he thinks that Edward would ask for more than £100,000 if he knew who the purchaser was. Edward and John have often done business together and so it is agreed that John will pay the £100,000 purchase price by the end of the week. John’s own insurance does not cover vehicles of this type so he arranges insurance on the car in the name of Kelly (with himself as a temporary named driver) with a specialist motor insurer. He then has the car serviced at a local Rolls-Royce dealer and drives it back to London the next day. When John arrives in London, Kelly refuses to pay for the car. She has just lost her contract with a modelling agency and is short of money. She also refuses to pay John’s train fare and other expenses, the price of the insurance, and the servicing charges, saying that nothing was put in writing and John had no authority to incur these costs on her behalf. She also refuses to give John any commission, saying that this was never agreed either.
Discuss whether:
a) Edward can legally enforce the sale of the car against either John or Kelly, should he attempt to do so;
b) John can legally enforce the claim for his expenses, the insurance and servicing charges and his commission against Kelly.
Answer:
In this case, the relationship between Kelly and John is that of principal and agent. On many occasions, Kelly a famous model had requested John, proprietor of the local garage to search cars for her and had given him reward of 10% of the value of the car, Kelly requested John this time for vintage Rolls-Royce car as she wanted something special and rare, Thus the relation of principal and agent was established, Section A2B provides that it is the case of implied agency agreement when one person requests another person to act on his or her behalf if commission or payment is made for the work. Kelly pays John for searching cars for her.us it is implied agency.
Section C provides for the rights of the agent 1) the right to receive commission or payment for the work done for the principal and (2) the right to indemnity from the principal, which means that in the event of agent incurring any expenses in doing its duty towards principal, the agents have a right to be indemnified that is paid back they lose the right to indemnity (Agency, 2011). If principal do not authorize the act, or agents are in breach of duties such as obeying the principal's instructions or the act of agent is illegal.
Thus, in this case John was entitled to be indemnified for the expenses incurred and for the insurance and commission in bringing car from Edward from Scotland. In this case as provided in D1B, John had implied actual authority to do anything which is incidental to or necessary for doing the act and to carry on the instructions of the principal. Apparent authority of agent is the authority that appears to the third party. It means that the principal is bound by the actual as well as the apparent authority of the agent (Agency, 2011).
Thus, Kelly is bound by all the acts done by John for searching a car for her in respect of implied as well as apparent authority. In this case, contract of buying a Rolls Royce car from Edward, John had to incur expenses and did not disclose the principal to Edward, but had to take car insurance in the name of Kelly as his driver so, Edwards’s position is that of non-disclosure of principal to him. Thus to enforce the contract, Edward being a third party, can take action either against John or against Kelly, Edward cannot enforce the sale of the car against both in view of undisclosed principal.
John can legally enforce the claim for his expenses, insurance, servicing charges and commission against Kelly, as per the provisions of agency laws. John was instructed by Kelly to look for a car that was special and rare, and in the event of not getting modelling assignments, Kelly cannot breach the agency contract, Thus John is entitled to all the expenses incurred in bringing the car for Kelly and Kelly is bound by it.
Question 4
(a) Andrea, a very wealthy business woman, wishes to arrange the following insurance policies in her own name:
1) a policy covering a diamond ring, that Andrea found in the street, the owner of which is yet to be traced;
2) a policy on the life of her eldest daughter, Jen, who is to take over the family business when she leaves university;
3) a temporary policy on a Ferrari car owned by George, a business partner. The Ferrari is worth £150,000 and Andrea is looking after it while George is on holiday;
4) a policy on the life of Gavin, her part-time gardener for many years;
5) a policy on the life of Freda, the high-earning wife of a business associate, Gerald.
Andrea owes Gerald £800,000 but Gerald has promised not to ask for the money as long as Freda is alive to support him. Discuss in each case whether the insurance contract is likely to be valid under English law, giving reasons for your answers.
(b) Ned successfully applies for a job at a branch of WXY, a major supermarket group with hundreds of branches throughout the UK. Ned is a habitual criminal who is frequently
in trouble with the police and who has spent some time in prison. He did not disclose this when applying for the job, which he did under a false name. Most of Ned’s fellow employees know about his past, but the Branch Manager, who employed him, does not.
Two months after starting employment, Ned and some of his associates steal large quantities of electrical goods from the branch. The insurers of WXY refuse to pay the theft claim saying there has been a breach of good faith on the part of WXY. They argue that Ned’s criminal past was well known and should have been disclosed to them. They also state that they will retrospectively rescind the cover on this branch of the group, (in case any more losses caused by Ned come to light), but not cancel the whole policy, which covers all UK branches. WXY’s management argue that the insurers should pay, pointing out that the group employs tens of thousands of people and it is impossible to know everything about all of them.
Discuss whether or not the insurers are entitled to reject the claim and rescind cover on the branch. Your discussion should include an explanation of the key legal issues
involved.
Answer:
1) Andrea is a wealthy huskiness woman and wants to insure the gold ring which was found in the street and the real owner is not yet traced.
In this case, for insurance cover of the ring, Andrea must have insurable interest in the ring,
Insurable interest means that the holder of the policy will suffer loss if the event insured against occurs. Thus, in this case, Andrea may not suffer loss, if the ring is not insured as the ring does not belong to her and the contract may fail for no insurable interest.
2) Policy on the life of her elder daughter
Andrea can get the policy covered for the life of her daughter as any married women can arrange for the policy of their spouse and children.
3) Temporary policy on the Ferrari car of George, her business partner as she uses the car when George is on holiday.
The insurance contract cannot be valid in this case as Andrea has no legal interest in the car that belongs to George, her business partner. Andrea has no insurable interest in the car owned by George. In the case of Macaura v Northern Insurance Company, it was held that Macaura had no insurable interest in the timber, as he had already sold the timber to the company where he was a shareholder .
Thus the contract for policy of car owned by George may not be valid as Andrea may fail to get claim for absence of legal and insurable interest.
4) Policy on the life of Gavin, a part time gardener
It is provided that an employer can arrange for the policy of its employees as it has insurable interest but it is limited to the amount of the work for which he is employed .In the case of Smock v Scottish Imperial Insurance Company (1902) 10 SLT 286, it was held that the interest in the life of right hand man of butcher was only to the extent of one week's employment as he was employed on a weekly contract..
Thus the contract of insurance of Gavin could be valid, but will be limited to the amount of wage or salary under his contract of employment.
5) A policy on the life of Freda, wife of business associate Gerald. For an insurance contract to be valid, the insurer must have insurable interest and legal interest, thus Andrea cannot have insurable interest in the wife of business associate Gerald She owed £80,000 to Gerald, but Gerald said he won’t ask for money till Freda was alive. The insurance contract provides for insurable interest because in case of unlimited right without insurable interest to arrange for insurance policies on other people's life might instigate to murder for receiving insurance money.
Thus, Andrea may not be in a position to claim insurance, as insurable interest will be lacking.
Ned was employed by WXY and Ned with his associates steals electrical goods. The Insurance Company refused to pay the claim amount for the reason of non-disclosure of Ned's criminal records and that it was a breach of utmost good faith.
Non-disclosure on the part of WXY was not fraudulent in this case as the manager who employed Ned was not aware of the criminal records of Ned.
And in case of such a big company WXY cannot maintain or inquire about the records of all the persons employed by them, as thousands of people are employed by them. One more argument is that the policy may be taken much before employing Ned, so the question of continuously informing insurers about records of each and every person is not possible.
Thus Insurers are entitled to make payment of claim as WXY had no intentions of fraudelen4 non-disclosure and in view of WXY not being aware of Ned's previous criminal records.
However the moral hazard is indicated strongly in the history of criminal activities, that is previous criminal activities or criminal offenses, are regarded as material facts that need to be disclosed.
Continuing duty of disclosure is provided in the laws that it is a duty to disclose any additional or new material facts that would affect the risk to the current contract, a general duty of utmost good faith is continuous throughout the contract to be observed by the insured if the loss occurs and claim is made (Part-II-The Insurance Contarct, 2011). The right to repudiate the claim will be done only if the fraud is actual and the attempt to deceive the insurers is deliberate and benefit from doing so, In this case of Ned, the burden of proving non-disclosure due to fraud is on the insurer and it would require a higher standard of proof. In the case of Manifest Shipping Company v The Star Sea (2001) UKHL 1 though the duty of faith was clarified, the insurers failed to prove the non-disclosure was fraudulent and insured was aware of it (Part-II-The Insurance Contarct, 2011). In English Law, the insurer has the only alternative to avoid the entire contract or affirm the entire contract. The insurers are not permitted to refuse only that particular claim and simultaneously affirm the contract and let it stand, or accept liability in respect of part of the loss.
Thus, in this case, the insurers are not entitled to do both the acts simultaneously. The remedy for breach of good faith may be ignoring the breach and letting the contract stand, thus in this case, the insurer may allow the policy to stand and ignore the breach as there was no fraud that could be established.
The English law on non-disclosure and misrepresentation has been criticized due to its unfairness weightage. It was found that the insured may not have considered that the facts were material or it is assumed that they have to only answer the questions asked in the proposal form and that there did not arise any more requirement from them (Part-II-The Insurance Contarct, 2011). The definition of material fact in law was criticized as it required the insured to disclose the fact that would impact or influence the mind of a reasonable underwriter which should have been any ordinary person and not the underwriter.
The Consumer Insurance (Disclosure and Representation) Act 2012 was passed where the consumer’s utmost duty of faith was modified by removing the duty of disclosing material facts.
Thus WXY may not be liable for breach of duty of non-disclosure as per the provisions of The Consumer Insurance (Disclosure and Representation) Act 2012.
References
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