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        1. Law assignment 代写:几起侵权案件与雇主责任分析

        2. 100%原创包过,高质量代写&免费提供Turnitin报告--24小时客服QQ&微信:273427
        3. 几起侵权案件与雇主责任分析
           
          介绍
           
          在马修不幸的情况下,至少有三种关系分别围绕着这三个方面:马修、他的雇主、司机和因车祸而遭受损失的受害者。本案涉及侵权责任和雇主义务两种法律关系。本文根据各自独立的诉讼关系分为三个部分,分别探讨了这两种关系,并分析了每一方诉讼成功的可能性。
           
          第1期
           
          事实
           
          马修,他的雇主和作为受害者的企业是第一期的三方。事实上,马修在日常接生工作中与一名汽车司机发生车祸,造成停电,受害者因此受到损害。因此,这些企业现在正在起诉马修和他的雇主,要求赔偿损失。
           
          分析
           
          此问题包含两个关系。主要关系是企业和马修的雇主之间,另一个关系是马修和他的雇主之间。与第三种可能的受害者与马太的关系相比,把前两种关系放在讨论中更有意义,因为马太的关系对受害者的成功几乎没有什么好处。
           
          在开始讨论之前,有必要介绍侵权行为的几个要点。一般而言,侵权请求权包括被告人的注意义务的存在、被告人违反其职责的行为、索赔人遭受的损失以及行为与损失之间的因果关系(BLAY,2013)。过失被认为是侵权行为的最重要形式。在多诺霍诉史蒂文森案中,阿特金法官首次提出了“过失”的概念。在证明其合理的注意义务存在之前,被告的过失责任将不成立。另一个与过失有关的概念是“邻里原则”,这一概念长期以来一直存在争议,即谁应当承担注意义务,在多大程度上应当认定被告过失。关于扩大适用这一原则的最典型案例,也与马修的案例有关,应该是“一家内政部诉多塞特游艇公司”。在这种情况下,马修和他的雇主都对其他可能受到下文所述特殊工作模式影响的人负有照顾责任。
           
          此外,还应引入“合理的人”的概念,这是在布莱思诉伯明翰自来水公司案中设立的。在这种情况下,马修的工作模式是,雇员必须在大城市繁忙拥挤的地区驾驶车辆运送货物,雇主有必要分派送货任务当员工开车时,以最快的速度完成大部分工作任务。对于一个合理的司机来说,在繁忙的街道上追逐送货速度冠军应该被视为一种危险行为,因为员工不能很好地集中精力驾驶,这可能在任何时候造成严重的交通事故和进一步的交通堵塞或损害。在这种情况下,Matthew作为其雇主的代理人,应对其特殊的工作方式负责,在其日常工作中代表其雇主,而在街道上为运输业工作的必要性不应被视为辩护(William Norris QC 2009)。
           
          另一个概念是“就业疏忽”(Feliu&Johnson 2002)。在本案中,马修的雇主本应提醒其雇员在开车时接电话有危险,但在本案中,这种危险的司机被雇主默许,导致了最终事故的发生。尽管在本案中,除了马修的受伤外,没有其他伤害,但企业的损失是可以合理预见的。雇主作为一个委托人,只要合同中有明示或默示的规定,只要有雇佣合同,就有义务对其雇员马修的侵权行为给予受害人赔偿。
           
          虽然雇主和受害人之间没有商业关系,可以算是雇主的辩护,但整个事故都是由雇员履行职责,特别是在日常工作期间造成的。对于业主(作为交付企业)而言,此类事故的结果应是可预见的。一个理智的人会意识到开车时打电话是危险的,这可能会分散司机的注意力。在这种情况下,因果关系必然成立.
          Analysis on Several Cases of Tort and Employer’s Liability
          Introduction
          In this provided case of Matthew’s misfortune, there could be at least 3 relationships which are respectively revolved these parties: Matthew, his employer, the driver, and the victims who suffered losses from the car accident. There are two kinds of legal relationships referred to tort liability and employer’s obligation included in this case. This article is divided into three parts according to each independent relationship and will be discussing the two types of relationships and analyzing the possibilities of success for each party’s litigation. 
          Issue 1
          Fact
          Matthew, his employer and the businesses as victims are three parties in this first issue. The fact should be concluded as that the victims suffered damages because of the electricity cut caused by a car accident which happened between a car driver and Matthew during his routine of delivery work. As a result, the businesses are now suing both Matthew and his employer for the losses. 
          Analysis
          This issue contains two relationships. The main relationship is between the businesses and Matthew’s employer while another one is between Matthew and his employer. Compared with a third possible relation between the victims and Matthew, which will bring little good to the victims for their success, it is more meaningful to take those the former two relations into discussion. 
          Before starting the discussion, it is necessary to introduce several important points of tort. Generally, a claim of tort contains these factors: the existence of the defendant’s duty of care, the defendant’s behavior breaching his duty, the losses suffered by the claimant and the causation between the behavior and the losses (Blay, 2013). Negligence has been considered the most important form of tort behaviors. The concept of “Negligence” was firstly pointed out by the judge Atkin in the case of Donoghue V Stevenson. The defendant’s liability of negligence will not be held until his reasonable duty of care is proved to exist. There is another concept related to the negligence, the “Neighborhood Principle”, which was in disputes for a long time who should bear the duty of care and to what extend the defendant should be determined negligent. The most typical case about the widen application of this principle, which is also related to Matthew’s case, should be the one 购彩票365下载 Office v Dorset Yacht Co. In this case, both Matthew and his employer owe the duty of care to other people who may get affected by the special working mode as described hereinafter. 
          Moreover, the concept of “reasonable man” should also be introduced, which was set up in the case of Blyth v Birmingham Waterworks Co. In this case, Matthew’s working mode is that the employee has to send goods by driving vehicles among busy and crowded districts of a big city, and it is necessary for his employer to dispatch delivery tasks when the employee is driving so that they can fulfill the most work tasks by the fasted speed. To chase for the champion of delivery speed in busy streets should be considered as a dangerous conduct as to a reasonable driver, which could cause serious road accidents and further traffic jams or damages at any time since the employee cannot focus well on his driving. In this case, Matthew, as an agent of his employer who should be liable for its special mode of working, represented his employer during his daily work, and the necessity of working in the streets for delivery industry should not be taken as a defence (William Norris QC 2009).
          There is another concept of “Negligence in Employment” (Feliu & Johnson 2002). The negligence in training in this case was reflected as Matthew’s employer should have remind its employee of the danger to pick up phone calls when driving from time to time, however, in this case, such dangerous driver had been permissive impliedly by the employer, which led to the final accident. Though there was no other injury except Matthew’s in this case, there was reasonably foreseeable losses to the businesses. The employer, as a principal, should undertake the obligation to pay damages to the victims for the tortious conducts of its employee, Matthew in this issue, as long as there exists a employment contract between them, no matter the contract is express or implied. 
          Though there is no commercial relation between the employer and the victims, which could be reckoned as a defense for the employer, the whole accident was caused by its employee performing his duty, especially during the time of daily work. The result of such accident should be foreseeable for the employer, as an enterprise of delivery, of any commercial structure. A reasonable person can realize the significant consequence of that it is dangerous to make phone calls when driving a car, which could probably distract the attention of the driver. In this case, the causal relationship was necessarily established between the victims’ losses and the employer’s working mode. 
          The final point to discuss is the amount of damages that Matthew and his employer would have to pay. Though the fact of tort has been proved to exist, it’s not yet been described in the materials how much the businesses have suffered and what is the amount of their claimed damages. It should be noted that if the claimed amount of damages has been proposed unreasonably, their claims would probably rejected by court according to the causation theory. Similarly, the claimed amount of damages should depend on their causations with the accident in the following issues, which would not be discussed in details in each issue hereinafter. 
          Conclusion
          It’s obvious that the businesses could probably be awarded damages from the employer as long as they can prove the employment relation between Matthew and his employee. However, compared with the damages from the employer, the businesses would not get enough sums from such a singer individual as Matthew.