Question 2a) David Lay I have been asked to advise David Lay on his legal position regarding the way in which he was treated while he was on the show 'Kent's Got Talent' and whether he has any claims in trespass. There are three elements to consider when looking at negligence: duty, breach and damage (Harlow 2005). We must first identify whether or not anyone had a duty of care towards David Lay. This is because it is a breach of duty of care, rather than a negligent act, that brings about liability in tort (Gautret v Egerton) (Samuel 2008). Lord Atkins said in Donoghue v Stevenson  that "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." Pant and Deck clearly were in violation of this when they pushed David Lay back on stage. The actions of Pant and Deck were significant causes of David's nervous breakdown. It is reasonably foreseeable that their actions would cause a negative effect. Without their encouragement of the events, David Lay would have only knocked his confidence rather that suffering from posttraumatic stress disorder. It can also be argued that Pant and Deck acted unreasonably when they tormented him by "pointing at him and laughing". This is degrading treatment and, although not sever enough to be regarded as a violation of Article 3 of the European Convention of Human Rights, is still humiliating for him to go through, especially on national TV. This I believe was enough to be a contributory factor towards him suffering from PTSD and therefore the breach of duty has caused the damage. A case could be made for vicarious liability. Pant and Deck could be said to be acting in the course of employment. Pant and Deck were performing their duty to make the show more interesting. Therefore their employer, whom ever that may be, would be liable. The case Century Insurance v NI Road Transport establishes that an employer is liable for anything that their employees do when acting for the benefit of the company. Even if their action is prohibited by their employer liability can still fall on the employer as shown in the case Rose v Plenty . Simon Trowell would have a duty of care to all the contestants on the show; however he did not beach this duty of care during the time of David Lays performance. From the evidence given Simon Trowell did not play any part in the mocking of David's performance as David ran off stage before any comments were made. b) Molly To advise Molly I will begin by discussing any claims that she may be able to bring against various parties and then what claims may be brought against her. Newspapers printed articles on her apparent affair with a pop star that later turned out to be unfounded. This could be considered libellous. A case for defamation could be made if the stories brought her into contempt, disrepute or ridicule as described by Lord Atkins in Sim v Stretch . Defamation rarely ever goes to court as it is easily remedied by making "an offer of amends" (an apology). The Defamation Act 1996 allows the newspaper to publish an apology if they didn't know that the statement was defamatory (Harlow 2005) to remedy defamation. Some damages may be awarded out of court. When the photographer backed Molly into a corner this could be considered false imprisonment. False imprisonment was defined by Lord Goff LJ in Collins v Wilcock  as the "constraint on another's freedom of movement". There in not enough information from the evidence given to say whether or not there was complete restriction. There must also be no reasonable means of escape (see Bird v Jones ) which there probably was in this case, however more information is required to know for sure. When Molly punched the photographer she performed a battery. Lord Goff LJ defined this is "the actual infliction of unlawful force on another person". To perform a battery the action must be intentional (Gibbon v Pepper ), the force must be direct and immediate (Scott v Shepherd ) and the force must be more than what in generally acceptable in everyday life (Wilson v Pringle ). The only defence here would be to say it was in self defence and that's unlikely to stick. A claim for assault would be defendable by arguing that the photographer did not apprehend the infliction as she "lashed out" and there is no evidence to suggest that she threatened the photographer at any point. c) Sweet Kandy The first issue to be dealt with is whether what the paparazzi were doing could be considered harassment. There is no general tort of harassment in common law (Wainwright v Home Office ) instead there is a statutory one (Samuel 2008). The Protection from Harassment Act 1997 allows both civil and criminal remedies against harassment. As set out is section 3 of the act "A person must not pursue a course of conduct which amounts to harassment of another". According to the evidence, Sweet Kandy were "pursued relentlessly". This would therefore amount to harassment. However, I would doubt Sweet Kandy view this as negative attention and they probably need the publicity as a newly formed group, but there would be a case available if they wanted. The issue with Simon Trowell pulling out of the contract is a clear breach of contract as one of the terms was that it would last for two years. If Sweet Kandy still wishes for Simon to be their manager then they could seek an order for specific performance. This is when a court orders that the party in breach to "perform his primary obligation" (McKendrick 2009). Specific performance is rarely awarded as it is not always appropriate. In this case I feel that the appropriateness is enough for it to be allowed. The band could also be entitled to a form of damages. There are normally four types of losses that can be recovered as part of damages, these being: cost of substitute performance, lost expenditure, lost profit or lost enjoyment. The aim of damages under the expectation principle is to put the innocent party in a position as if the contract had been performed in accordance with the terms outlines in the contract (Mulcahy 2008). They would need to prove that due to Simon Trowell's breach of contract they lost out on future profit. It can be seen from the evidence that Sweet Kandy have already started writing songs for a third album which will now not be made. A case for lost expenditure would not be suitable for this case because, although they spent £5,000 each on designing a "new look", it would be argued the expenditure was not necessary, that they would have already seen the benefits and that could and will still be used their new look their career after the contract. My advice to Sweet Kandy would be to push for specific performance. Simon Trowell had no basis for terminating the contract early. This situation is a perfect example of were specific performance is applicable and appropriate. It is likely that Simon Trowell will want to settle out of court (due to possible bad publicity), therefore my advice to Sweet Kandy would be to take the maximum amount of settlement money possible. My reasoning behind this is that Sweet Kandy's record sales are falling according to the evidence, it would therefore be financially sensible to take the settlement money. When the contract has ended they are then free to look for another record deal and continue with their career. d) Cherry It is unlikely that Cherry may have many legitimate claims against anyone as her clinical depression and stress is not easily foreseeable (a requirement for imposing duty of care, as set out of Caparo Industries v Dickman .) According to Barber v Somerset County Council  and Sutherland v Hatton , an employer has a duty of care towards its employees where work related stress is involved. Therefore if she has an employer (with the given evidence this is unclear) then they could be liable for the damage to her psychiatric health. e) Simon Trowell When Simon Trowell entered into a contract with CreateCo they had agreed that the "three red buzzers with red crosses" were to form part of the design. CreateCo failed to perform this part of the contract correctly when the installed a "green display... saying the word 'No!'". Simon Trowell then had to pay a further £40,000 to WhizzCo to correct this. Simon Trowell will be able to make a claim for damages to the amount that would put him in a position had the contract been properly performed. The issue of remoteness is not a problem as CreateCo knew the terms of the contract included the "three red buzzers with red crosses". Simon Trowell could also make a claim based on the gain made by CreateCo arising out of their breach of contract; this is called a restitutionary remedy. The case Attorney-General v Blake  makes it clear that this claim is possible but only in ex. In the Blake case a spy made profit from the sale of a book in which he revealed information that he was not entitles to disclose after signing the Official Secrets Act 1911. The judgement by Lord Nicholls however made it clear that the remedy is to be used only in "exceptional circumstances". Simon Trowell may be able to claim for non-pecuniary losses. This issue was bought up and held in Farley v Skinner , Watts v Morrow  and Ruxley Electronics v Forsyth  where a breach of contract caused the plaintiff distress. The stress that was put on Simon Trowell was a direct result of CreateCo's failure to perform the contract as specified. There is a very strong case here and Simon Trowell should be successful in his claim.
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