Contract Law and Workplace Safety - Assignment Example

? Contracts Question One What is Tort and how does it differ from Contract law? The law of torts determines whether an injured party can recover damages from the party causing the injury. This law also specifies the manner in which such compensation is to be claimed. Tort is an assortment of damages that are to be resolved among the concerned parties. As a result, this solely involves the civil law. Moreover, the law of tort has to be considered in conjunction with the other branches of the law (Hodgson & Lewthwaite, 2007, p. xlvii). Initially there had been no differentiation between these branches of the law. At present, crime and tortious liability are intimately connected. These branches of the law address the wrongs done to people and property. Proceeding in contract or tort could arise from the same incident (Hodgson & Lewthwaite, 2007, p. xlviii). The law of tort is inapplicable to a civil injury that is merely a breach of trust or other equitable obligation. Nevertheless, injunctions and other equitable remedies could be available in tort. With regard to tort, the remedial duty emerges from some form of a primary duty (Hodgson & Lewthwaite, 2007, p. xlviii). There is considerable controversy regarding a certain aspect of bailment. Specifically it is contended by some that bailment is a component of the law of personal property, while others argue that it belongs to the law of tort. It has been suggested by Winfield that an action in bailment is similar to an action in contract if it ensues from a contract, and that it pertains to an action in tort in all other cases (Hodgson & Lewthwaite, 2007, p. xlix). The association between damages in tort and compensation through other mechanisms is intricate. Some instances of these other systems are; Income Support, occupational sick pay and pensions, private insurance, and compensation related to criminal injuries (Hodgson & Lewthwaite, 2007, p. xlix). Several civil wrongs, such as defamation, negligence, nuisance, and trespass are addressed by the law of torts. Although each tort includes specific rules relating to liability, the majority of the torts mandate the presence of culpability. In other words, the imposition of liability is limited to individuals who negligently or purposefully act or fail to act in some specific manner (Jones, 2011, p. 339). Some of the differences between tort and contract are; first, tortious duties are imposed by the law, whereas contractual duties result from agreements between the parties. Second, contractual duties are owed solely to those who are a party to the contract; whilst tortious duties are owed to persons, in general (Halsbury's Laws of Australia, 2008). Third, usually the right to sue in tort cannot be assigned. However, a cause of action in contract can be assigned. Fifth, there is a marked difference between tort and contract with regard to calculation of damages, variety of damages available, purpose of the award of damages, test of remoteness, extent of foreseeability, liability with regard to minors and bankrupt entities, and the commencement of the limitation period (Halsbury's Laws of Australia, 2008). Question Two Tortious Negligence. Several civil wrongs are covered by the law of torts, wherein a remedy, could be awarded by a civil court to the injured person. In general, success in tortious claims requires the claimant to establish that the damage was the result of the tortious omission or act. The law provides a number of defences to an action in tort. A few of these are classified as general defences, as they apply throughout the law of torts. The other defences have been termed as specific defences, due to the fact that they can be employed only with respect to a particular tort (Jones, 2011, p. 339). One of the major torts is that of negligence, on account of the fact that it encompasses a vast array of situations, wherein harm is caused to a person by another. An action for negligence requires the following elements to be established by the claimant, if it is to succeed. These are; first, the claimant was owed a duty of care by the defendant. Second, that duty of care had been breached by the defendant. Third, such breach of duty of care had resulted in reasonably foreseeable damage (Jones, 2011, p. 340). The fact that a claim for negligence constitutes a civil claim, requires the claimant to prove, on the balance of probabilities that there had been a breach of the duty of care by the defendant. There are two important ways, whereby a claimant can be facilitated in proving a breach of duty of care. These are; first, the Civil Evidence Act 1968, which at Section 11 provides that a conviction of a criminal offence is evidence of the commission of the offence. This makes it possible for the claimant to rely on the conviction of the defendant to establish negligence in a civil action for damages (Jones, 2011, p. 369). Secondly, the claimant may be able to take recourse to the doctrine of res ipsa loqitor or that the matter is self – evident. This doctrine can be employed when the evidence, prima facie, clearly indicates a breach of duty of care by the defendant as the cause of the injury. This holds good, even if the claimant is unable to establish the exact manner, in which the injury had transpired. When the court permits the claimant to rely on this doctrine, there is a reversal in the burden of proof; and the defendant will have to prove that he had not breached his duty of care. The claimant is no longer required to prove, on the balance of probabilities that the defendant had breached this duty of care (Jones, 2011, p. 369). Success in a negligence claim, requires the claimant to prove that a duty of care was owed to him by the defendant and that this duty had been breached by the defendant. In addition, it has to be established by the claimant that the injury caused to him was on account of the breach by the defendant. This is determined by the ‘but for’ test. Question Three Explain the doctrine of vicarious liability. The tort of the employee can result in liability being imposed upon the employer, and this is termed as vicarious liability. Several recent decisions have indicated that employers could be held vicariously liable for the acts of their employees that are obviously beyond the course of employment of the employees. This is a tremendous change in the law (Leung, 2004, p. 34). In the past, employers had been held vicariously liable, only for the acts of their employees that had been committed during the course of employment of the latter. Employers, in the past, had also been held liable for the acts of their employees that the former could have reasonably anticipated to result from the duties of their employees. It is obvious that vicarious liability conflicts with a fundamental principle of tort. This principle states that wrongdoers should be held liable for their own acts. However, the courts continue to impose this doctrine upon employers for the misdeeds of their employees (Leung, 2004, p. 34). The liability imposed upon an individual for the torts of another person is termed vicarious liability. This is in the context of situations, in which the person rendered liable had not committed any harm. This principle has been an important feature of the common law from centuries. The cardinal aspects of vicarious liability are; first, a tort should have been committed by the person, whose actions render another vicariously liable. In this context, it is insufficient if the actions of such a person had nothing more than an adverse impact upon the plaintiff. Second, at the relevant time, the person causing the harm should have been an employee or agent of the person to be held liable for the harm. Third, the tort should have been committed during the course of employment of the person causing the harm, with the person to be held liable (Neyers, 2005, p. 288). Fourth, the attachment of liability to the person to be made liable, does not protect the person causing the harm from liability. As such, these persons become joint tortfeasors (Neyers, 2005, p. 289). The objective behind applying vicarious liability is to make joint ventures and partners liable for the other members’ tortious conduct. This is based on the reasoning that every member is entitled to control the joint enterprise’s operation. The most frequent application of the doctrine of vicarious liability is in the imposition of liability upon an employer for the torts committed by his employees, during the course of their employment (Lundmark, 1998, p. 91). In situations, wherein the loss to the claimant had been the result of the actions of others, in addition to that of the defendant, considerable difficulty is envisaged in establishing loss due to the breach of the defendant. As such, the courts have opined that the ‘but for’ test is to be ignored, if the injury to the claimant could be attributed to a significant extent to the breach by the defendant (Jones, 2011, p. 371). Question Four Workplace Health and Safety The employer is duty bound to provide appropriate equipment, such as protective clothing, and safety devices. He is also required to ensure the proper maintenance of the existing equipment. In Davie v New Merton Board Mills, their Lordships ruled that the employer was liable, if an employee suffered a personal injury in the course of employment, due to defective equipment supplied by the employer. Such defect should be attributable to the fault of a third party. However, an employer will not be held liable, if the worker does not make proper use of the supplied equipment, or if he selects the wrong device for a particular job, despite having been provided with sufficient instructions regarding the use of such devices (Davie v New Merton Board Mills, 1959). As such, employers are obliged to make the staff, conversant with the proper use of the equipment or devices in the work place. However, there are a few instances, in which the duty under contract requires the taking of reasonable care. Cases where the contractual care is not exercised could prove to be authorities in the tort of negligence. At the same time, cases involving the tort of negligence could be authorities for contractual carelessness. This is due to the fact that the components of the duty of care are the same or quite similar (Hodgson & Lewthwaite, 2007, p. xlviii). Furthermore, the loss or damage to the claimant should have been reasonably foreseeable. In other words, the damage should not have been too remote. In certain situations, an intervening act serves to destroy continuity in the chain of causation. In such cases, the liability of the defendant will be limited to the injuries that had taken place, prior to that event. The intervening event is deemed to be the cause for the final loss undergone by the claimant. If this intervening event results from a third party, then the claimant can initiate action against that third party (Jones, 2011, p. 375). Every worker has the right to work in an environment that exercises adequate control over risks to the health and safety of the worker. The health and safety laws enjoin that the primary responsibility for providing such an environment is vested with the employer. An employer is duty bound to consult his employees or their representatives, with regard to health and safety issues (Health and Safety Executive, n.d.). As such, it is the duty of the employer to safeguard the health, safety and welfare of his employees and the individuals who could be affected by his business. In this regard, the employer has to do all that is reasonably practicable. Moreover, employers have to assess the risks in the workplace. Information regarding the risks at the workplace have to be furnished to the employees. The latter have to be trained to address such risks (Health and Safety Executive, n.d.). Absence of adoption of these measures by employers makes them liable for negligence towards their employees in the work place. Question Five Employer’s Liability Kate, an employee of QMR Ltd, operated a sharp edged machine that was compliant with the requirements of Section 14 of the Factories Act. Kate broke her arm after slipping on the ball bearings on the floor and falling down. The liability for negligence of the QMR authorities, in this accident is to be determined. Subsequent to the spillage of the ball bearings, an announcement had been made to vacate the premises. Kate ignored this announcement and entered the premises. The common law imposes a general duty upon employers to safeguard the health and safety of their employees and to create a stress free workplace environment. This duty is reinforced by statute law. The employer is duty bound to first, provide and maintain a safe plant and system of work devoid of unnecessary risk. Second, ensure safe handling, storage and transport of materials. Third, maintain the workplace in a safe manner. Fourth, secure the existence of workplace safe exits. Fifth, ensure working environment safety (Lawgistics, 2013). Hence, QMD is not responsible for Kate’s fall, as they had alerted the staff regarding the ball bearings. In order to assist Kate, in operating the machine, Dave, a new employee was deployed. He was inexperienced in operating these machines, and committed a mistake, resulting in the severing of his arm. Section 14 of the Factories Act 1961 makes it mandatory for every dangerous component of machinery, save for prime movers and transmission machinery, to be securely fenced. This condition can be dispensed with, if the machine part is so located or is of such construction that it is as safe as it would be if it were securely fenced. The presence of the following criteria ensures the application of the presumption that the accident resulted from the defendant’s negligence. The first of these states that the defendant had been in control over the situation or thing from which the damage had ensued. This implies that in the normal course, the damage would not have taken place, in the absence of carelessness (Jones, 2011, p. 370). It is feasible that the very same omission or act could result in a cause of action, not only in contract but also in tort. In the presence of concurrent liability, the plaintiff can sue in tort or contract. Moreover, the contractual terms could define or restrict the extent of tortious liability. The availability of certain defences and remedies is determined by the choice of action, and influences the right of contribution and the calculation of damages (Halsbury's Laws of Australia, 2008). John, the supervisor of the company is responsible for the negligent harm caused to Dave, since he had not alerted Dave about the dangers involved in operating the machine without its security fencing. Moreover, QMD is vicariously liable for the harm caused to Dave, due to the negligence of its employee, John. Dave can make a claim for damages against John, as well as the QMD company for negligence. References Civil Evidence Act (c. 64), 1968. London, UK: Her Majesty's Stationery Office. Davie v New Merton Board Mills (1959) AC 604. Factories Act (c.34), 1961. London, UK: Her Majesty's Stationery Office. Halsbury's Laws of Australia, 2008. 415 – Tort: (ii) Scope of Tort. s.l.:Lexis Nexis. Health and Safety Executive, n.d. Employer's responsibilities. [online] Available at: [Accessed 15 October 2013]. Hodgson, J. & Lewthwaite, J., 2007. Tort Law Textbook. 2 ed. Oxford, UK: Oxford University Press. Jones, L., 2011. Introduction to Business Law. Oxford, UK: Oxford University Press. Lawgistics, 2013. Health and Safety: Your Legal Rights and Responsibilities. [online] Available at: [Accessed 15 October 2013]. Leung, S., 2004. A new test for vicarious liability. China Staff, 10(11), pp. 34 – 37. Lundmark, T., 1998. Common Law Tort & Contract. Munster, Germany: LIT Verlag Munster. Neyers, J. W., 2005. A Theory of Vicarious Liability. Alberta Law Review, 43(2), pp. 287 – 327. Read More