Key Principles of Tortuous Liability and Negligence as the Concept in Legal Studies - Assignment Example

TASK 1 Key Principles of Tortuous Liability i) A tortuous liability is the type of liability which pertains to the duty of care and the negligence shown in performing the duty of care. And moreover, tortuous liability is generally with a person with whom there is no connection of a contractual liability. The general nature of tortuous liability states that person who owns the building such as waste management, education; housing and building services of Severnbridge Metropolitan Council, the owners of the building are responsible for the maintenance of the building. Severnbridge Metropolitan Council must therefore ensure that the buildings do not cause potential harm to visitors of the building or passers-by. If an incident does happen wherein a part of the properties of Severnbridge Metropolitan Council falls and injures a person, it will be Severnbridge Metropolitan Council who will need to pay for damages for injuring that person, since tortuous liability will be applied. Therefore, even though the injured party and Severnbridge Metropolitan Council are not bound by any contractual obligations or contractual liabilities, the Metropolitan Council would still be bound by tortuous liability. On the other hand, a contractual liability is created when there is a promise between two or more parties to perform a duty or obligation for another. For example, if Severnbridge Metropolitan Council has promised one of its clients that the council will ensure that no harm would come to any of his clients when they visit their offices, however if one of the clients is injured by the debris in one of the council buildings, contractual liability would apply to the Severnbridge Metropolitan Council. The primary differences between contractual liability and tortuous liability are that contractual liability are voluntary in nature, whereas tortuous liability and is an obligation imposed by law. The contractual liabilty is strict whereas a tortuous liability is established on the platform of fault. Another major difference between the two is that in the case of contractual liability, a person is found to be guilty when he’s not performed an action which he should have performed, whereas in tortuous liability, the person is proved to be guilty when he has performed an action which he should not have performed. ii) General Tortuous Liabilities are liabilities which are oriented around the obligations fixed by the law. There is another sort of liability called the Strict Liability which is different from general tortuous liability. Strict liability is a liability wherein a defendant is at fault, no matter if the defendant is proved to be at fault or not. Strict reliability is applied professions which have a lot of hazards or a lot of dangers. For example, if Severnbridge Metropolitan Council were associated with the maintenance of explosives, then Severnbridge Metropolitan Council would have been involved a profession which is hazardous. Therefore if there was any injuries due to explosion of some of the explosives, Severnbridge Metropolitan Council would be bound by strict liability, even if it had proved that Severnbridge Metropolitan Council had taken adequate measures to prevent such accidents from happening. However since most buildings that Severnbridge Metropolitan Council own are education; housing and building services, they will be falling under general tortuous liability, in case they cause some damages. The only exception probably would be the waste management building, which may come under the purview of strict liability, since the building may contain hazardous materials. iii) There are basically five elements to the tort of negligence. First one is Duty. Duty means the obligation of one person to another in matters of social customs, religion, legal duties and philosophies. The second element is the Breach of Duty. Misconduct or an omission of a particular duty of the citizen qualifies as a breach of duty. An existence of a proper behavior is the yardstick which is used to measure the breach of duty. The third element is called the Cause In Fact. Cause in Fact means that the plaintiff needs to establish the connection between the harm and the negligence, or a cause and effect relationship, before he can sue the defendant with the negligence law. The fourth element is called the Proximate Cause, a separate cause which is connected to the Cause In Fact. The fifth element is Harm. Harm is fundamentally the damage or injury caused to the plaintiff due to the defendant’s Breach of Duty. TASK 2 MEMORANDUM TO: Mr Leighton FROM: DATE: January 10, 2010 STATUTES INVOLVED: I. Occupiers' Liability Act 1957. II. Occupiers' Liability Act 1984 III. Section 2(3)(a) of Occupiers' Liability Act 1957. IV. Section 1(2) of Occupiers' Liability Act 1957 QUESTIONS PRESENTED: The Severnbridge Council Building Services is planning to redevelop the central library. They are re-designing two facets of the building: the interiors and the exteriors. Unfortunately, two people have been injured due to the ongoing repair works in the buildings. The issue that is brought to the forefront is the legal obligations of the Council, in case there is some damage or injury cased by one of the buildings of the Council. BRIEF ANSWER: The legal liability that would arise from these two issues for Severnbridge Council Building Services, are the Occupiers' Liability Act. The legal implications of the two incidents will be binding to Severnbridge Council Building Services, since both these accidents have apparently occurred due to the negligence of Severnbridge Council Building Services and the inability of taking adequate measures for preventing these accidents from happening. STATEMENT OF FACTS: In the interiors, a new ceiling and lighting is being fitted while outside the library, a new IT Education Resource Centre is being built. These two construction processes have however caused certain problems. There have been two reported cases wherein people have been injured due to these two constructions. An old member named Ted Bovis was injured when he had entered the library for borrowing a book. A fluorescent light had fallen on his head, injuring him. In another related incident, a ten year old boy named Asad was badly hurt when he had ventured into the construction site perimeter to play. The Occupier’s Liability Act defines an occupier as the entity who has a certain degree of control over the premises. Since Severnbridge Council Building Services are the rightful owners of the Central Library as well as the plot where the IT Education Resource Centre is being built, they are considered as the occupiers. DISCUSSION: For the case involving Asad, Section 2(3) (a) of Occupiers' Liability Act 1957 would be applicable. Section 2(3) (a) states that the occupier, in this case Severnbridge Council Building Services, requires being more careful with children who may visit the premises. Moreover, for the children who are not accompanied by a guardian, it is more important for the occupier for taking preventive measures. In the case of Asad, the gap in the fence was an act of negligence for Severnbridge Council Building Services, since Asad is a minor and there was a construction site beyond the fence, which should have been adequately protected and fenced. Section 1(2) of Occupiers' Liability Act 1957 would be applicable in the case of Ted Bovis. The Act states that an occupier, who permits a person or persons to enter into his premises, becomes the visitor. Hence, Ted Bovis certainly falls under the category of a visitor since he is a library member. Since the authorities of the library at Severnbridge Council Building Services did not specifically tell Ted Bovis not to enter the library, Mr Bovis did not have any fault when he entered the library and got injured by the fluorescent bulb. CONCLUSION: A duty of care is imposed by the Occupiers' Liability Act 1957. Since it is evident in both the cases that Severnbridge Council Building Services, had breached the duty of care. Therefore according to the Occupiers' Liability Act, Severnbridge Council Building Services needs to take care of the damages caused to Asad as well as Ted Bovis. The court would not give a corporal punishment to authorities at Severnbridge Council Building Services, but may sentence the authorities a violation of the 8th amendment. TASK 3 To: Solicitor of the Council Topic: The legal issues pertaining to the accident of the refuse truck driver of the waste management unit of the Council. ISSUE There was a major issue related to one of the employees of the Waste Management Unit of the Council. The employee who was a driver of one of the refuse trucks, met with an accident, severely injuring a few people. BACKGROUND The driver of the refuse truck was supposed to follow a particular route, as instructed by the Council. However, the driver had received an emergency call from his aunt, who was in severe dental pain. It was therefore decided by the driver that he would take a detour and pick up his aunt and drop her to a dentist in Pawchester. On their way, the driver unfortunately collided with a taxi, severely injuring the taxi driver and his aunt. DISCUSSION The issue which is raised by this incident is whether the actions of Gavin, the driver, make the Council vicariously liable. Under the common agency doctrine, which is Respondent Superior, the superior has the responsibly of the violations or breach of duty performed by his subordinate. Although Gavin is considered to be an employee of Severnbridge Metropolitan Council, and the Council is the superior who has the duty to control; Gavin, in this particular case, the Council may not be vicariously liable. The incident falls under the Employers Liability. The Severnbridge Metropolitan Council may be held responsible in case the driver had made the detour for meeting a business purpose. However, the driver breached the guidelines of the Council, since the council had clearly stated in the contract with the driver, that he was supposed to pick up no one else except an employee of the council in the truck. Furthermore, these instructions were clearly written inside the truck as well. The court has made a differentiation between ‘Detour’ and ‘Frolic’. A Detour is the route a driver takes when he requires meeting a business objective whereas ‘Frolic’ is the route a driver chooses which isn’t connected with a business objective. Picking up his aunt was the first breach of duty fro the driver. Moreover, the accident occurred when the driver had taken a route which wasn’t advised by the council, so it was clearly a ‘Frolic’. Since it is evident that the accident occurred when the driver had undertaken a ‘Frolic’, the employer cannot be held responsible, hence the Severnbridge Metropolitan Council is not vicariously liable for the incident. RECOMMENDATION Responsible Director: Prepared by: Date prepared: 10 January 2010 Enclosure-1 TASK 4 To: Solicitor of the Council Topic: The legal issues pertaining to the accident of a laboratory assistant of the Fredrick Delius High School of the Council. ISSUE There was an issue pertaining to an injury of one of the employees of the Council. Precisely, a laboratory assistant named Jason Ferrar employed with the Fredrick Delius High School. The lab assistant had sustained a sprained ankle because he slipped on the corridor floor of the school, which was wet because of a leaked ceiling. The issue raised by this incident is whether the employer, that is the Severnbridge Metropolitan Council, is responsible for negligence and is liable to pay for physical damages to Jason Ferrar. BACKGROUND Jason Ferrar is the lab assistant who was injured because of slipping in the corridor of the school. The incident happened because Jason went to toilet to wash his eye from a solution of corrosive substance which accidentally splashed in the lab, while he was conducting a lab experiment for year ten chemistry class. The sharp pain in his eye got him partially blinded and as he rushed to the toilet for washing his eye, he didn’t notice the wet floor in the corridor and hence slipped, injuring his ankle. DISCUSSION Negligence is the concept in legal studies which states that the plaintiff is liable to get compensation for the mental and physical injuries caused by the defendant. Accidents however do not count as an act of negligence. If the injured person, or Jason in this case, can prove that the Severnbridge Metropolitan Council acted with negligence which caused him the ankle injury, he would be compensated for the harm caused to him. However to get the compensation, Jason must prove that the Severnbridge Metropolitan Council was at fault for all the elements of negligence. There are the five basic elements of negligence, but if he can prove four and cannot prove the fifth, he would still lose the claim for compensation. Regarding the first element (Duty), Jason may be able to prove that it was a duty of the Council to inform him beforehand, that one of the ceilings in the building was leaking. However, regarding the second element, which is Breach of Duty, Jason may not be able to prove that the Council was at fault, since the Council had already kept a board stating “Danger- Corridor Closed. Use B Floor as an alternative” near the leaked ceiling. Another important aspect of the element in ‘Breach of Duty’ is foreseeability. According to the courts, a defendant cannot be liable for an action, if the danger of a certain action of the defendant was not foreseeable. In the case of the leaked ceiling of Severnbridge Metropolitan Council’s Fredrick Delius High School, the Council had taken adequate measures by setting up a board which served as a warning to all people under normal circumstances. The incident in the lab which caused Jason to get partially visually impaired was not something normal for a person. Everyone expects a normal person to view the board and avoid the corridor, however Jason didn’t. Hence, it was never foreseen by Severnbridge Metropolitan Council that some employee or student would be partially blinded and unable to see the danger signal. Therefore, in all probability, Jason would not be able to claim compensation from the Council, and the Council will not be liable for negligence. RECOMMENDATION Responsible Director: Prepared by: Date prepared: 10 January 2010 Enclosure-1 Bibliography Hogue, AR. 1986, Origins of the Common Law, Liberty Fund Inc., Indianapolis. Read More