Business and Corporate Law

free essayThe business and corporate law undergo a variety of changes from time to time. However, it is essential to note that the laws regarding the issuance of services and goods are strictly applicable. This arises from the fact that both parties are liable to each other in case of a loss or injury. For instance, the case involving Super Mario’s Karts and Daisy, has various legal implications that need to be established before the case is determined. Additionally, it is essential to note that both parties have the right and regulations that they require to observe in their contract. Some of the principal factors that need to be observed in this case include the negligence liability, exclusion clauses, incorporation of both statutory and common law, reasonable foreseeability, extent of the liability suffered and the remedies available for both the plaintiff and defendant. These are critical in the determination of which party will be favoured at the end of the case.

The fact that Mario owns Super-Mario’s Karts, and one of his customers has suffered because of his negligence indicates that he has a case to answer. In order to understand the liability that Mario will suffer, it is essential to commence with the negligence liability and tests therein. In this case, the negligence liability abounds, when an owner of a recreation facility does not provide the customers with a warning relating to the obvious risk that can result in terms of taking part in that particular sport. However, it is essential to note that the owner of a recreational activity also has a role to play in preventing the liability. This role arises from the fact that the owner of a recreational or sports activity needs to ensure that the instruments used for the recreational activity are in good condition and that no injury can result from the use of such instruments. Therefore, in the case presented, Mario will suffer the negligence liability from the fact that he was busy and forgot to service his karts. This abounds despite the fact that Mario provides all the customers with a form to sign regarding the injury that might result from the use of the karts. Additionally, Mario will also suffer from the negligence liability because of the fact that he gave the priority to his personal business, instead of taking care of his customers first. This is because of the defectiveness depicted by the kart Mario was using, which was supposed to be serviced two weeks earlier, but Mario was too busy to facilitate the service. Another essential point to note is that despite the fact that Mario has an example of test that will be performed on this case is the three stage test. This test specifically aims to establish three essential factors that determine whether there was a proximity between the person that suffered the loss or injury and the liable person, the reasonable foreseeable injury of the person suing and the fairness of imposing a liability to the owner of the premise (Australian Insurance Law 6). In the case, involving White v. Chief Constable of South Yorkshire Police, 1998 W.L.R 1509 (H.L.), the verdict was in favour of the defendant, but it is crucial to note that if the facts were not the same, the court could have upheld the decision in favour of the plaintiff if there was the responsibility that results from the defect, which applies in the abovementioned case. This better proves this case, although it is opposite, since the court upheld the decision in favour of the defendant (Australian Insurance Law 6).

The exclusion clauses that could have favoured Mario include the fact that the warning which he had placed on his premises and in the locker room could have included the probability of compensation in case a loss happened. Additionally, Mario could have enjoyed the exclusion clause relating to the fact that users of the karts should exercise a maximum care and observe the speed, at which they drive the karts (Bainbridge 2008). Mario could be excluded from the liability because he could have tried to establish the fact that Daisy had flouted the rule regarding the use and speed, at which she was driving the kart. Mario could have also enjoyed the exclusion clause if he indicated that all valuables should be left at the counter of his premise; otherwise, the owners were supposed to report any valuables that were left in their lockers, while enjoying the service provided (Easterbrook & Fischel 1991). This could have awarded Mario the benefit of the exclusion clause, since it is not indicated anywhere that Daisy reported leaving any valuables in the locker, which could have required Mario to ensure maximum security of the lockers. Additionally, it is reported that Mario was driving the kart at a rather high speed when the accident occurred (Bainbridge 2008). This could have also awarded Mario some immune because he could have tried to establish that the plaintiff did not observe the law required regarding the use of his equipment. The fact that Daisy crushed while driving at a high speed arises as an exclusion clause for Mario. However, this case focuses on how the application of the exclusion case will be effected. The case regards Parker v South Eastern railway (1887) 2 CPD 416, whereby an owner of a bag deposited it in a railway station and was given a paper ticket that specified several clauses (Baskind 2012). Among the clauses was the indication that the company was not liable for any package exceeding ten pounds. On returning, the plaintiff found the bag missing and sued, but the company pleaded for the limitation clause to defend itself (Schafer & Schonenberger 2006). It was noted that the plaintiff had the obligation of knowing that the ticket had both writings and limitations connected to it, which bound the plaintiff. The fact that the plaintiff was aware of the writings in disregard of conditions, and if the person receiving the ticket was not aware of the writings, then one is not bound by them (Benvenisti 2012).

The common law application to this case avails advantages and disadvantages to both parties. This arises from the fact that the common law as advocated by the court provision continues to avail more advice to people owning adventure and recreational services. For instance, the common law advances that the plaintiff or person participating in a recreational activity, such as kart riding, should be aware of the fact that the activity is dangerous, and there are obvious risk anticipated while participating in the activity such as crash landing (Schwartz 1998). However, according to the common law, it should be noted that legislative reform provides an additional advantage to recreational businesses (Stephenson 2000). This arises from the fact that the body of law has endeavoured to ensure that persons, who participate in recreational activities, do not have a chance of recovering from the loss that they have suffered (Quadri & Gagnon 2008). However, in such a case as this one, it is essential to note the damage that can result in the person engaging in the recreational activity. For instance, the case relating to Campbell v Hay {2013} NSWD 11} indicates that the engine failure, same as when the breaks of the kart failed in the given case, contributed to the injury of Daisy (Easterbrook 1996). The application of the statute law is conditioned by the fact that Mario will receive a reprieve, since in this case, Daisy was allowed to use his land for purposes of recreation activities (Bevans 2006).

The application of reasonable foreseeability arises from the fact that when Daisy started using the kart, it was in a good condition until when she started driving it recklessly, which resulted in her having an accident (Allen 2013). This is applicable as in the case of Hide v Steeplechase Co (Cheltenham) Limited and Others (2013) EWCA Civ 545 (Longmore, McFarlane and Davis LJJ), whereby the plaintiff held that she was injured because of the kart owner’s mistake that resulted from the fact that the defendant failed to service his karts (Schafer & Schonenberger 2006). However, the defendant can claim that the kart was still in a good running condition, but it resulted in the injury because of the plaintiff’s mistake as she was overspeeding and lost control of the kart in the event that is under review (Easterbrook & Fischel 1991).

According to the corporate law, it is essential that Mario provides a proof of liability insurance in order to be safe from the charges that can be advanced by the use of his property (Quadri & Gagnon 2008). The lack of such insurance will guarantee Daisy more rights that arise from the fact that Mario had not secured a liability insurance to ensure the safety of his clients, while utilizing his recreational facilities in case the injury that results is not in favour of him. On the other hand, Daisy will also suffer a liability that results from the fact that she had not insured her property against the theft. A person is required to insure any property that they deem expensive and is prone to any instances of burglary (Hannigan 2012).

In conclusion, it is essential to note the remedies available to both entities in this category. Daisy can have the right to monetary compensation, which results from the fact that Mario was negligent when it came to servicing the karts that his customers’ use. Thus, the law stipulates he is liable to ensure the safety of his clients through the perfect operation of machinery (Roach, 2012). In this case, perfect operation of machinery includes ensuring that they are all in good working condition before opening of the business. Besides, this should be done before a customer is allowed to use a machine. In regards to the breaking of the locker, Daisy does not have any remedy, especially if she failed to insure her gadgets against burglary (Hodgson 2008). On the other hand, she can also decide to seek a monetary compensation, whereas Mario did not include a liability clause in the warning he had placed at the locker room (Morrison 2011). This is in connection with the common law that requires a premises owner to provide a liability clause in order to prove the willingness to pay, when the fault is on his or her side (Marson 2013). On the other hand, Mario can also seek a legal redress, since Daisy did not observe the rules required when using his property (Schafer & Schonenberger 2006). This is caused by the fact that she was speeding when the accident happened. This might have resulted into the destruction of property, which Mario can sue under the statutory law (Schafer & Schonenberger 2006).

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