Role of Law of Tort in Business Activities Assessing Particular Forms of Tortious Liability - Case Study Example

Common Law Tort Examine role of Law of Tort in business activities assessing particular forms of tortious liability: Laws are fundamentally of two types –civil and criminal. Criminal wrongs are acts against the State and hence are proceeded and decided by the State. However, civil wrongs, being essentially of individual nature, seek not to enforce punishment against the apparent wrongdoer, but are more concerned about monetary reparation for damages or losses that have occurred. The main objective of Law of Tort is to ensure that losses and damages sustained by the aggrieved parties are suitably compensated, and s/he is put in a position as though the losses or damages had not taken place. The main aspects regarding law of tort in business activities could be seen in terms of issues relating to Consumer Protection, private nuisance or aspects arising out of Occupier’s Liability under its years 1957 and 1984 Acts. Again, provisions of the Sale of Goods Act 1979 (as amended under Sale and Supply of Goods Act 1994) also impact upon tort liability for business activities. The law of tort has its early roots in the verdict of court in various English cases, including the decisive Donoghue v. Stevenson case, which established that manufacturers and suppliers need to maintain a standard degree of care in products which they deal with. While this could be largely circumstantial, it needs to be the degree of care, skill and discretion which a person of ordinary prudence would need to exercise under similar situations. The need for a duty of care, which underpins the aspect of tort laws in the UK, has been established in the seminal case of Donoghue v. Stevenson, (1932) House of Lords (1932) All ER.REP 1. In which the manufacturer of soft drinks was held liable for civil misfeasance in not ensuring that the consumable product met the highest quality standard and was fit for human consumption, being devoid of toxic elements. Similarly it is seen that people should refrain from doing harm to others, either wilfully, or through negligence, and if they do so, they would liable for their own actions and it would become necessary for civil courts to institute proceedings to redeem wrongdoing through restitution and restoration. However the plaintiff also needs to maintain a degree of care, in that s/he has to take due care and diligence to ensure that the defective product does not harm her. In the 2002 case of B v McDonalds [2002] EWHC 490, relating to scalding injuries caused to applicant apparently due to coffee served in a defective container, it was held that “because the mere fact that a product is capable of causing injury does not, in itself, make it defective. It would be reasonable to expect a person to take more care when handling what was clearly a very hot liquid in a not-particularly-substantial container.” (B v McDonalds (2002) 2006). However in 2001 case of Clef Acquitaine v Laport [2001] QB 488, where applicants lost a great deal of money through fraudulent advice, the Courts directed that “they need to be able to recover not only the money they lost, but the money they would have gained had they invested the money better.” (Clef Acquitaine v laport (2001) 2006). Describe the nature of general tortious liability comparing and contrasting to contractual liability: Contractual liability arises in the event of non-performance of contractual liability, while general tortious liability may arise, even without the elements of contract. Thus while a person is walking on the streets and a slab of concrete falls and injures her, it is well within her rights to sue under tort, although there is no contract present in this case. To qualify for exertion of tortious liability it is necessary that: 1. Tort needs to be determined 2. Actionable claims need to be assessed 3. This would arise directly out of tort negligence, or action. Under contractual law, there needs to be performance, or action flowing from one party to another, there is breach of contract, either intended or unintended, and as a result, claims could result. Thus while under contract, there is breach of contractual obligations, under tort, there is actionable claim arising out of injury, or distress to one party, caused by another. Comparisons between Tort and Contract: Both relate to actionable claims arising out of breach, or negligence. Both tort and contract laws may be keen about restitution and monetary compensation. The aspect of foreseeability is evident in both contract and tort laws. Contrast between Tort and Contract: Tort may arise even without contract- a motorist may be hit by speeding drunk driver and could claim compensation for injuries under tort laws. It was foreseeable on the part of the driver to assume that his conduct could create accidents. A person may try to sell a second hand car, stating that it is new. Although a contract is created, it has been vitiated by misrepresentation or fraud. The options would therefore lie on the aggrieved party, to either direct specific performance, rescind the contract/ claim damages for losses sustained. Explain the liability applicable to an occupier of premises: The law regarding Occupier’s Liability distinguishes a person who is a legal visitor from a trespasser, or an illegal entrant. The Occupier’s Liability Act 1957 deals with lawful entrants or authorised visitors, whereas the Occupier’s Liability Act 1984 deals with trespassers, or illegal transgressors. However, as propounded by the Act passed in 1984, the law also imposes duties and performances by occupiers with respect to protection and other considerations, being meted out to trespassers in human injury- prone premises. Under Occupier’s Liability Act 1984, the occupier has a duty of care, if he is aware of the latent risks in the premises, and knows fully well that the other person, faces a grave risk, and there is need for the occupier to provide protection against such dangers emanating from the said premises. It is also the duty of the occupier to offer basic protection, irrespective of the fact whether person is trespasser, or bona fide visitor. Again it is also seen that children need to be more protected, since they tend to be less careful than adults. However, it is also seen that underage children would be normally accompanied by their parents/or accompanying adults and it is believed that these adults also share a responsibility in health and safety of the children in dangerous situations. Under the Provisions of Section 2 Subsection 4, of Occupier’s Liability Act 1984, it is said that for assessing whether due care has been exercised by the occupier, in view of the prevailing circumstances, it is necessary that: Damages or injuries are caused despite warning; the occupier would be freed of his responsibility if it was enough for the visitor to have been reasonably secured. Discuss the nature of employer’s liability with reference to vicarious liability and health and safety implications: The aspect of vicarious liability would arise in case the employers are held responsible for the tortious acts of their employees. It is seen that in the case of Occupier’s liability, in most cases, firm evidence of negligence and lack of care on the part of occupiers/employees or agents, need to be proved. Even in case of fatal accidents that occur under unprecedented circumstances, occupiers can be devoid of liability if they have issued prior notice to the public regarding the dangers of the sport and the applicants are aware of contents of such notices, and the applicants had indulged in the risk being fully aware of its consequences, illustrated in case of Tomlinson (FC) v. Congleton Borough Council & Others (2003) UKHL 47. Coming to the aspect of vicarious liability , it is further maintained that where injury happens to a visitor by a risk due to the defective implementation of any work of construction, repairs by an outside contractor working by the occupier, the occupier need to prove that he had exercised due reasonableness and prudence in his work and the lack of care could not be attributable to improper supervision of outside contractor or he had “taken such steps” as was necessary to enforce work ethos on work force. (Judgements – Tomlinson (FC) (original respondent and cross-appellant) v. Congleton borough council and others (original appellants and cross respondents) 2002). Thus, in real terms, the main aspect that would be focussed on is whether the occupier had taken reasonable steps and showed presence of care in his duties and responsibilities towards the conduct of work of his employees and he had taken all steps which a man of ordinary prudence and care would have taken under such circumstances. In case he could prove that he had taken such steps, he would be absolved of vicarious liability. The landmark case of Tomlinson (FC) v. Congleton Borough Council & Others (2003) UKHL 47 is being cited herewith. In this tragic case, the claimant dived into the beach at the Brereton Health Country Pass and struck his head into the low sandy bottom. breaking his neck and reducing him to a tetraplegic. He brought action against the Council stating that the Council owed him a duty of care under 1984 Act, and the accident occurred due to lack of duty on the part of the occupiers in providing advance warning to him, thus causing the major accident. However, the HOL thought otherwise. The learned Court overruled his application on the ground that the accident occurred not due to the inherent dangers in the premises, but because of the applicant’s lack of care, “the claimant had known of the danger, and that he must have therefore have been deemed to have accepted it voluntarily.” (Tomlinson v Congleton BC 2003 2006). Distinguish strict liability from general tortuous liability: While strict liability may arise, due to issues of public interest like sale of adulterated food. If one were to take the case of a person selling adulterates food, the fact remains, whether he could be held responsible under each of the following instances: 1. He was not aware that the food he supplied was adulterated 2. Although he was not aware he ought to have known about the tort 3. He was not aware and he did not also have the resources to find out about these facts. 4. He was selling the food fully aware of its tainted nature. Obviously the need for protecting public would place the dealer in a position of strict liability, since the Courts need to protect the public, but it would be injudicious to put all the 4 categories under one ruling. It is necessary for the Courts to find out the true facts before passing judgement. In the case of strict liability a person may be guilty although he may not have done any wrong, like No.2 and No 4 of the above illustration. However, under tortuous liability the guilt of the perpetrator is established and beyond doubt. If A while driving knocks down B, A’s tortuous act is well established and B could proceed legally to get recompensation and damages for injuries suffered. Unlike Strict liability, where there may be areas of ambiguity or doubt, under tortuous liability, the guilt is well known and proven. Understand and apply the elements of the Tort of Negligence: ““Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Per Alderson B., Blyth v Birmingham Waterworks Co. (1856).” (The tort of negligence, p. 1). Thus negligence suggests doing something which ought not to have been done, causing losses or damages, or even refraining from doing something which ought to have been done. The main elements that constitute tort of negligence could be seen in terms of: 1. The results of the actions of defendants were reasonably anticipated. 2. There is a close nexus among the parties in terms of contractual agreement, or physical proximity. 3. Whether it is seen that in all situations, the aspect of fairness, justness and reasonableness under which the law imposes a duty is being upheld Analyse practical applications of particular elements of the Tort of Negligence: The practical aspects of Tort of negligence lie in being able to enforce scope and culpability of tort wrongdoing. It needs to be seen in the context of the damages that has been caused through breach, or negligence. Firstly, it needs to be evidenced that the harm may not have occurred but for the negligence on the part of the defendant. This was mirrored in the case of Barnett v. Chelsea & Kensington Hospital (1968) in which although there was a case of negligence in that doctor present did not attend the case, the link between negligence and death could not be established. Again, coming to another aspect it is seen that where there are several leads, or probables for cause of injury, the Courts need to be convinced that it was purely the Defendant’s breach of duty that was a major contributory cause for the tort. In the case of Wilsher v. Esser AHA (1988), though negligence in administering the right doze of oxygen was present it could not be proved that it was contributory cause for blindness of infant. (Tort law: tort and negligence 2009). Case study: (1) During welding of bicycle frames, molten metal splashed on one of the children, need to be hospitalised. (2) Trespassers – drank toxic chemical thinners – hospitalised in critical conditions - knocked down the container and chemicals found their way into the local pond, killing all the trout. Owner of pond claims damages from Cycle Company. (3) Welds broke- cyclists injured – claims. Mr. Symthe, owner of the Bicycle Company would like to know liability, if any, accruing to company as above, and what the company is facing, also defences which may be available to it. It could be seen that the provisions of the Occupier’s Liability Act 1957 read with 1984 amendment could be applicable in the first part of this case scenario. The law regarding Occupier’s Liability has stated that they need to take special care of children’s health and safety since they tend to be less careful than adults. However, the adults accompanying the children need also exercise sufficient control and supervision in the care of their wards. Apparently there has been lowered degree of care exercised by the authorities and the adults which has resulted in health losses and injuries. In the first part, the burn injuries could be attributable to negligence on the part of the employees of Smythe and he needs to answer to vicarious liability that has accrued. It is beyond reasonable logic to have small children handle welding equipment and the company needs to bear the losses. However coming to the second scenario, it is seen that Mr. Symthe had made provisions for adequate warnings and Notices against trespassing into the forbidden areas. It is seen that despite the warnings, the children were allowed to move into these danger zones and injure themselves. The liability for these occurrences could hardly be attributable to Mr Symthe or his company, and needs to be taken up by the adults in the party. This is because the warning sign that was posted was specific and read as Danger, unsafe chemical waste. We accept no liability for any injuries sustained beyond this point to persons not authorised to enter. Under such circumstances, it could be reasonably maintained that the provisions of Occupier’s liability with respect to advance warning has been maintained and thus the company could not be held responsible for the injuries caused to the children. However, it could be held that the damages caused to trout in river need not be compensated by the company because of the ruling of the following: The CROW Act has made certain changes in section 1 of the Occupiers’ Liability Act 1984 in certain portions, including by removing the liability of occupiers of access land to those exercising the right of access, and to trespassers, in respect of risks arising from natural features of the landscape, such as rivers etc. Thus, it could be reasonable seen that Smyth’s company need not be liable for the pollution in the river, since they had taken all possible steps to circumvent foreseeable risks and dangers arising out of such situations. Coming to the third aspect it could be said that relevant provisions of the Sale of Goods Act 1979, and also the Sale and Supply of Goods Act 1994 need to be invoked. There are implied warranties under the provisions of the Sale of goods act that the goods need to conform to quality and performance standards, which apparently it has not, resulting in damages to vehicles and injuries to cyclists. There has been a breach of contractual obligations on the part of the seller in terms of fitness of the products and its performance. Under such circumstances, the buyers could rescind the contract and claim refund for the goods, demand specific performance, and replacements for the damaged goods, and even sue for damages and losses for injuries to the riders. Thus, the company would be liable for damages and losses sustained to cyclists due to poor quality of goods supplied to them. Conclusions: The Company would be liable to the children for the burn injuries suffered but neither for injuries suffered due to consuming of toxic chemicals nor for lake pollution. Again, it could also be held liable for the injuries caused due to poor welding, causing accidents to the riders. Produce a short critical reflection on your work including suggestion for how it may be improved: This writer has tried to cover the main aspects relating to law of Torts and the various factors that impinge upon the various case scenarios that have just been deliberated upon. He has strived to delve on empirical aspects of, interalia, the Occupier’s Liability laws that have practical connotations and legal ramifications. It is necessary that a case study of this kind should provide solutions to the intricate aspects of relevant laws. This study has been handicapped by the fact that Occupier’s Liability is one area of jurisprudence which may be affected by various changes and amendments over time, including the fact that Court decisions on these issues would depend upon a case-to-case basis which may be of contradictory nature. References B v McDonalds (2002) 2006, The K-Zone, viewed 10 May 2009, http://www.kevinboone.com/lawglos_BVMcDonalds2002.html Clef Acquitaine v laport (2001) 2006, The K-Zone, viewed 10 May 2009, http://www.kevinboone.com/lawglos_ClefAquitaineVLaport2001.html Judgements – Tomlinson (FC) (original respondent and cross-appellant) v. Congleton borough council and others (original appellants and cross respondents) 2002, www.parliament.uk, viewed 10 May 2009, http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030731/tomlin-1.htm Tomlinson v Congleton BC 2003 2006, The K-Zone, viewed 10 May 2009, http://www.kevinboone.com/lawglos_TomlinsonVCongletonBC2003.html The tort of negligence, Asif Tufal, viewed 10 May 2009, http://www.lawteacher.net/PDF/Flowchart.pdf Tort law: tort and negligence 2009, Fortunecity, viewed 10 May 2009, http://members.fortunecity.com/jusdo/id66.htm Read More