The nature of general tortious liability comparing and contrasting to contractual liability - Essay Example

? Assignment 2 Describe the nature of general tortious liability comparing and contrasting to contractual liability (P7) The similarity between general tortuous liability and contractual liability is that both give rise to actionable demands in a court of law, and both, if adequately proven, entitle the plaintiff to damages from the defendant. The main difference between general tortuous liability and contractual liability is that the latter is strictly voluntary, in that the parties by mutual consent, agree to bind themselves to certain obligations to each other, and be liable for damages in case of breach. These obligations are stipulated in a contract that shall be the law between the parties. For there to be a valid contract, there must be a meeting of the minds, i.e., an intent to create legal relations, an offer and acceptance, and mutual consideration and the parties must be capacitated to enter into the contract. (Treitel and Peel, 2007). One of the classical and enduring cases of contract law is the case of Carlill v. Carbolic Smoke Ball [1893] EWCA Civ 1. In this case, a company had come out with an advertisement challenging readers to use Carbolic Smoke Ball to prevent Influenza. It said that if used according to instructions, the user would not be susceptible to Influenza anymore, and if he still contracted the disease, the company would pay him 100 pounds. When a claimant came out, the company refused to pay, saying that there was no intent to create legal relations. In finding against the company, the court held that a valid and legally enforceable contract existed. In a situation where a valid contract existed, breach of it would constitute contractual liability. For example, in a contract of the sale of apples of a certain quality, if an inferior quality was delivered, it can be said that a contractual liability is created. In contrast, tortuous liability does not attach by reason of contract, but because of a breach of a duty of care. It is quite possible that the defendant may not have been aware of the extent of his liability or may not even know the person to whom he is liable, quite unlike parties to a contract who are all known to each other. To quote the seminal case of Donoghue v. Stevenson 1932] UKHL 100 (26 May 1932) " You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then is my neighbour? The answer seems to be - persons who are so directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question." After Donoghue, the definition of what constitutes tortuous liability has been refined considerably and has crystallised into a three-way test: proximity (as held in the case of Donoghue), foreseeability, which means that the defendant should have been able to foresee the consequences of his or her actions (Caparo Industries Plc v Dickman and Others [1990] 2 AC 605.), and the test of “fair, just and reasonable”, recently upheld in the case of McFarlane and Another v Tayside Health Board [2000] 2 AC 59. To demonstrate causation in tort law – i.e., to show that the loss caused to the claimant was a result of a breach of duty of care by the defendant – the most simple test is the “but for” test. But for the defendant’s actions, would the claimant have incurred the loss? This was elucidated first in the case of Barnett v. Chelsea & Kensington Hospital ([1969] 1 QB 428) where a doctor was not held liable for a patient’s death even if he did not examine the latter, because the patient would have died anyway with or without the ministrations of the doctor. However, it must be remembered that one incident can give rise to several claims, and a claimant can elect between a breach of contract claim or a negligence claim involving duty of care1. (Jones, 2000, page 379). Explain the nature of liability in negligence and the concept of vicarious liability (P8 & P9) The nature of liability in negligence resides in a failure to exercise a duty of care, resulting in injury to another person. The person who failed to exercise the duty of care is also the person to whom the liability attaches. Vicarious liability, however, is different. Vicarious liability is the liability for acts and omissions of a person one is legally responsible for, most commonly an employee. Michael Jones (2000, page 379) has outlined the reasons behind vicarious liability: (1) The Master has the ‘deepest pockets’.. The wealth of a defendant, or the fact that he has access to resources via insurance, has in some ways had an unconscious influence on the development of legal principles; (2) Vicarious liability encourages accident prevention by giving an employer a financial interest in encouraging his employees to care for the safety of others; (3) As the employer makes a profit from the activities of his employees, he should also bear any losses that those activities cause. In determining whether or not there is vicarious liability, the tort must have been committed by an employee in the course of the performance of his duties. The first question that arises is, when can a person be considered an employee? One accepted test is the “integral part of the business” test. In the case of Stevenson, Jordan and Harrison Ltd. v. McDonald and Evans, [1952] 1 TLR 101 it was held: “One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business; whereas under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.” Another element is that the incident took place “in the course of employment”. According to legal authorities: An employer will usually be liable for (a) wrongful acts which are actually authorised by him, and for (b) acts which are wrongful ways of doing something authorised by the employer, even if the acts themselves were expressly forbidden by the employer. (Salmon and Heuston, 1996: 443). The distinctions are not particularly easy to draw, particularly when the acts are criminal in nature. In the case of Keppel Bus Co v. Ahmad ([1974] 2 All ER 700), insulting language and assault by a bus driver to a passenger was not held to be in performance of duties, and thus the employer was not made liable. In contrast, the cleaners were held liable for the theft of a fur coat stolen by one of the employees whose task it was to clean the coat in the case of Morris v Martin Ltd. ([1965] 2 All ER 725) . To mitigate the possibility of unjust consequences of vicarious liability, an employer can proceed against an employee who failed to exercise reasonable care and skill during the course of his employment. This is known as the indeminity principle. One of the company’s fork lift truck drivers causes injury to a fellow worker when carelessly demonstrating how to do an emergency stop in the vehicle. (a) Discuss the nature of employer’s liability with reference to the above event applying the elements of vicarious liability. (P11) In order for vicarious liability to attach, the following elements must be present: first, that a tort exists, second, that the tortfeasor is an employee, and third, the tortfeasor was acting within the scope of his duties whilst the tort was being committed. Obviously, the injury caused to the worker is in the nature of a tort, there being a breach of a duty of care. Now the next question is whether or not the truck driver is an employee. If the company is in the usual business of fork lifts then it is likely that the tortfeasor is an employee and not an independent contractor. It is also prudent to ask if he has a “contract” of service” or a “contract of services”. (Ready Mix Concrete v Minister of Pensions and NI [1968] 1All ER 433), but it must also be remembered that the intent of the parties or the designation in the employment contract is not conclusive as to the nature of the relationship. In Ferguson v Dawson Partners [1976] 3 All ER 817, for example, a building worker was treated as an employee despite the fact that his contract had stated “labour only subcontractor” because he was, for all intents and purposes, treated as an employee. The next question is whether or not the injury was done while the tortfeasor employee was in the course of his duties. There is merit to the argumentation that this is a classic example of “wrongful modes of performing authorised acts” as in the case of Limpus v London General Omnibus Co. [1862] 1 H&C 526, where bus drivers racing caused a collision. Here, the demonstration of an emergency stop is part and parcel of the duties of the fork lift driver – but his doing it in a careless manner made it wrongful and led to the loss suffered by the claimant. In fine, we are brought to the conclusion that the employer here is vicariously liable to the injured worker for injury suffered by him or her as a result of the tort committed by his or her fellow worker. A customer in one of the stores was injured when she slipped on a wet floor, breaking her ankle. She is threatening to sue the company for negligence. (b) With reference to this event, explain the application of the elements of the tort of negligence and discuss the defences that may be available to the defendant in a tort of negligence lawsuit. (P10) The customer can proceed against the store owner for the injury to her ankle. If there was no other reason for her slipping other than the wet floor, e.g., no one pushed her, she is not afflicted with any illness that impedes motor skills, then the element of proximity is satisfied. The element of foreseeability is also satisfied, in that the owner of the store could have predicted that in the natural course of things, a wet floor can easily cause a person to slip. Finally, it is fair, just and reasonable to require the defendant to be liable to the customer who slipped. It is in the interest of public policy that store owners be made to exercise a certain degree of care in their premises to ensure the safety and well-being of the public. There are some defences that are available to the store owner, one of which is to argue that there are multiple causes of the incident, and the wet floor was but one of several possible causes. Depending on the circumstances of the case, the defence may also argue contributory negligence, as in the case of Capps v. Miller [1989] 1 WLR 839, where the claimant had failed to fasten his crash helmet. In this case, if the facts were to show that the claimant was contributorily negligent, it can serve as a viable defence. This defence would perhaps be availing, if for instance, there was a sign already indicating that the floor was wet but the claimant was too busy talking on her mobile phone to mind the sign. Right now, however, under the present state of jurisprudence, contributory negligence has evolved to comparative negligence under which “plaintiffs can recover some percentage from liable defendants regardless of the extent of their own negligence.” (Li v. Yellow Cab Co. [1975] 532 P.2d 1226)  Another possible defence is “assumption of risk”, where as the phrase implies, it means that the claimant has assumed the risk involved by knowingly entering into an inherently-dangerous activity. However, there is nothing to suggest that the store entered into by the claimant is anything other than an ordinary store and the claimant willingly exposed herself to danger, fully apprised of the circumstances. In truth, the claimant had no reason to expect a wet store. The ‘assumption of risk’ defence therefore is not availing. References Journals and Publications: Jones, M. (2000) Textbook on Torts. Oxford: Oxford University Press. Treitel, G. and Peel, E. (2007) Treitel on the Law of Contract. London: Sweet and Maxell. Cases: Barnett v. Chelsea & Kensington Hospital ([1969] 1 QB 428) Caparo Industries Plc v Dickman and Others [1990] 2 AC 605. Capps v. Miller [1989] 1 WLR 839 Carlill v. Carbolic Smoke Ball [1893] EWCA Civ 1. Donoghue v. Stevenson 1932] UKHL 100 (26 May 1932) Ferguson v Dawson Partners [1976] 3 All ER 817 Keppel Bus Co v. Ahmad ([1974] 2 All ER 700) Li v. Yellow Cab Co. [1975] 532 P.2d 1226 Limpus v London General Omnibus Co. [1862] 1 H&C 526 McFarlane and Another v Tayside Health Board [2000] 2 AC 59 Morris v Martin Ltd. ([1965] 2 All ER 725) Ready Mix Concrete v Minister of Pensions and NI [1968] 1All ER 433 Stevenson, Jordan and Harrison Ltd. v. McDonald and Evans, [1952] 1 TLR 101 Read More