Understand and Apply the Principles of Liability in Negligence a Business Context - Essay Example

? Understand and apply the principles of liability in negligence a business context Understand and apply the principles of liability in negligence a business context 1. A business at a given time is bound to be liable for some acts either it has committed or has been committed by any third party who had the ability, right or duty to control the activities of the business. Such kind of liability is referred to as vicarious liability. Vicarious liability is defined as the tort doctrine which imposes responsibility or liability upon a person for the failure of another person, with whom exists a special relationship to exercise such care as a reasonable person would under the same circumstances (Giliker, P, 2010, p. 9). Example of this relationship is that of employer and employee, or that of a parent and a child. Vicarious liability assigns liability for an injury or loss to a person who did not actually cause the injury but has a special legal relationship to the person who acted negligently (Bermingham and Brennan, 2008, p. 27). As has been noted, a business can at a given time be bound to be liable for some acts, and particularly those committed by another person who has special legal relationship with the business. So, how can a business be vicariously liable? There are different incidences in which a business can be vicariously liable. For example, the owner of a car can be held vicariously liable for negligence that was committed by his driver. In an event that a driver commits a negligent act such as exceeding speed limit and as a results causes an accident, the owner (can be a registered business) of the car may be liable for the loss suffered by the owner of the other car or for the injury suffered by the other person involved in the accident (Lunney & Oliphant, 2007, p. 106). Vicarious liability in this context is based on the assumption that the owner of the car has provided the car for a particular use, and therefore the operator of the car is acting as the agent of the owner. The same assumption is also applied in circumstances whereby the owner of the car lends a car to a friend. Another example of an incidence where a business can be vicariously liable is that which involves a bank that is performing car repossession from the registered owner because of non-payment; the bank has a duty not to cause peace breach when undertaking the repossession. If its agent do cause then it will be liable for the damages as noted in the case of MBank El Paso v. Sanchez (Giliker, P, 2010, p. 21). Generally, vicarious liability operates within the law of torts. Its general rule is that a person who authorizes a tort will be liable personally for injuries or losses that arise as a result. It should be noted that vicarious liability operates within certain circumstances which requires that a person should be liable only in circumstances where special legal relationship exists with the person who has committed negligent act. Vicarious liability has been said to have some merits. The first one is that it is easier for the claimant to attach blame precisely to a responsible person. The second merit is that it makes the owner of a business to impose caution the persons in control of activities thereby helping it avoid avoidable losses (Henderson, 2002, p. 313). 2. Legal principles relating to the vicarious liability have developed through the case law to create scenarios that vicarious liability operates in the field of employment law. Mainly, it has created five main scenarios as demonstrated in the chart below: Always directly liable; always vicariously liable; may be vicariously liable; not vicariously liable; and is always vicariously liable Vicarious Liability Under the tort of negligence, employers are vicariously liable for the torts committed by their employees in the course of employment. Two main reasons have been cited for the justification of vicariously liability imposition on the employers: since the employees help the employers make profit, employers should bear the loss caused by the same employees; the employers have “deeper pockets” and as such can have access to resources that can prevent or compensate loss; and vicarious liability encourages the employers to prevent accidents by encouraging employees to consider utmost safety of others (Giliker, P, 2010, p. 33). In order to establish vicarious liability, the following must be proved: the breach by the employee has caused damages to the plaintiff; the employee has breached the duty of care; and that the employee owed the party who has been injured a duty of care. Within the employment relationship, the employer is held liable for both his own wrongs as well as those of his employees. Legal principles relating to vicarious liability demand that for an employer to be held liable, the wrongs by the employee should be committed during the course of employment as was demonstrated in the case of Mattis v. Pollock. Also, as was illustrated in the case of Lister v Hesley Hall Ltd, an employer cannot avoid liability by simply showing that his or her employee engaged in unauthorized and intentional wrongdoing (Bermingham and Brennan, 2008, p. 27). For example, if a driver of a gasoline company strikes another car and causes injury, the gasoline company would be held responsible for the damages if there is evidence to prove that the driver was negligent because the driver was within the scope of employment (Deakin, S et al, 2003, p. 75). 3. Occupiers’ Liability is tort of negligence’s application even though it is a separate tort which has been created through legislation but it borrows fundamental ideas from negligence. It relates to the liability of an occupier of land for loss, damage or injury of claimant to property suffered whilst on the premises of the occupier. Prior to the codification of Occupiers’ Liability Acts of 1957 and 1984, occupiers’ liability was under the common law of negligence which imposed a duty of care on the occupiers of premises (including ships, open land, buildings, and other types of premises. The duty of care under the common law was imposed towards those who were coming into the premises and covered the state of premises and the negligent actions of the occupiers (Lunney & Oliphant, 2007, p. 120). The negligence’s common law imposed a duty of care on the occupiers of premises of whichever nature; ships, buildings, open land, and other types of premise towards other persons coming to those premises. The duty as provided by common law covered both the state of premises and the negligent actions of the occupiers. Different levels of care complicated this law in the light of trespassers, licensees, invitees, and contractors. As far as the aforementioned were concerned, duty of care did not exist at all. It is against this background that the following two Acts of Parliament were created and codified: Occupiers’ Liability Acts 1957 and 1984 (Bermingham and Brennan, 2008, p. 27). The Occupiers’ Liability Act 1957 focuses on the liability of an occupier towards lawful visitors. On the other hand, the Occupiers’ Liability Act of 1984 deals with more limited duty that is owed to others on the premises, particularly the trespassers. Both acts does not define the term “occupier”; however the Acts seem to define the term as any person with responsibility for the premises’ state and/or in a position to give consent for any person to enter. After the codification of OCL Act of 1957, the term “occupier” was defined in the case of Wheat v Lacon 1966 and the term “premises” was defined in Wheeler v Copas 1981 (Deakin, S et al, 2003, p. 198). Client Advice Letter Freeland Jutson Solicitors Attorneys at Law North Riding of Yorkshire 11763 (817) 240-3400 June 1, 2006 Mr and Mrs Sharp North Yorkshire 515 Seventh Avenue Dear Mr and Mrs Sharp: I hope you have been well. Recently you wrote to us that after completing the purchase of a holiday cottage at Cliffville-on-Sea, you discovered that the cottage requires underpinning. This was against your expectations as you had been assured by the ABC valuers and Surveyors’ report that the cottage was favourable. Specifically, you have asked for advice on whether there is a possibility of any causes of actions that may be available to you. After researching the issue, and based on the facts set out in your explanations, I believe that you have several causes of actions available to you. However, you ought to prove negligence for the causes of actions to be effective and enable you recover legal remedies. If you will be able to prove negligence on the part of the ABC valuers and Surveyors who were carrying out a mortgage valuation on behalf of the Beach Building Society, then you will be entitled to special damages that would facilitate underpinning of the cottage without extra cost to you. You mentioned to us that ABC valuers and Surveyors were acting for Beach Building Society, the bank you were seeking to secure the required loan to purchase the cottage. You also mentioned to me that after receiving the report which stated that the cottage was prepared for mortgages purposes only, you proceeded with the purchase without taking your own survey, having secured the required loan. In this case, it is clear that you relied on the services of professional valuers and surveyors who were acting on behalf of your financier to make your decision. Ideally, there is nothing wrong with that because their report ought to be relied by both the financier and you since they are professionals. Therefore, the shortcoming that you have discovered is not your fault at all, but as a result of negligence on the part of ABC valuers and surveyors. Since ABC valuers and surveyors were acting as the agents of the Beach Building Society, the later would be vicariously liable and would therefore act as the defendant. ABC valuers and surveyors were not independent contractors but rather acted as the agents of the Beach Building Society and ought to be liable for the tort that the agents committed in the course of their duty. The Beach and Building Society had a legal duty of care to you as the plaintiffs/claimants. It is also clear that it failed to perform this legal duty of care. As a result of its failure to perform its duty of care you are bound to suffer a loss. Applying these legal rules to this situation supports the cause of action that the cost of undermining the cottages would be on the Beach Building Society, or at your cost but the Beach Building Society compensates you. I hope this is helpful, and would be glad to discuss this matter with you further. Please feel free to call our office at (817) 240-3400 if you would like to set up a time to meet, or have questions. Very Truly Yours, Thomas Johnson. Bibliography Bermingham, V and Brennan, C, 2008, Tort Law, Oxford University Press. Deakin, S et al, 2003, Markesinis and Deakin's Tort Law, Oxford University Press. Giliker, P, 2010, Vicarious liability in tort: a comparative perspective, Cambridge: Cambridge University Press. Henderson, J, 2002, "Why Negligence Dominates Tort," UCLA Law Review 50 Lunney, M., & Oliphant, K, 2007, Tort Law: Text and Materials. Oxford, Oxford University Press. Read More