In this report, the differences between contractual liability and tortuous liability are explained. In addition, nature of liability in tort of negligence is analyzed, including occupier liability, strict liability, health and safety issue

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Memo

To: Mr. Padmanaban Badri Narayanan

From: Tran Nguyen Thao Suong

Regarding: Report on Business Contract

Date: 23th December 2012

Dear Mr. Padmanaban Badri Narayanan,

I am Tran Nguyen Thao Suong from class SUD11, University of Sunderland. I wrote this memo to you in order to support you approach my work easily.

I have spent times for doing this assignment. During the work, I understand some certain aspects of tort. I have also earned lots of essential knowledge and developed skills relating to the practical application of tort and other issues of liability and negligence relating occupier liability and vicarious that I can apply in real life situations. In addition, I discussed with my friends to sort out problems and come up with solutions. This attempt supports me a lot and enhances my teamwork ability. With all enthusiasm put into the assignment, I am proud of my work and ensure that there is no problem relating to plagiarism. Moreover, I want to say a great thanks to you for your professional support.

Yours sincerely,

Tran Nguyen Thao Suong.


I. INTRODUCTION

It is importance to clearly understand various essentials of a tort and negligence in real life. In this report, the differences between contractual liability and tortuous liability are explained. In addition, nature of liability in tort of negligence is analyzed, including occupier liability, strict liability, health and safety issue. Especially vicarious liability is also explained. There are also applications to cases with solutions in order to help understand more about the tort and negligence liability.


3.1. Tortuous liability and contractual liability

3.1.1. UK legal system

The United Kingdom of Great Britain and Northern Ireland (UK) consists of four countries: England, Wales, North Ireland and Scotland with three distinct jurisdictions, each with its own court system and legal profession.

The UK does not have a ‘written' constitution and is made up of four main parts: statute law, common law, conventions, works of authority.

Of these, statute law is the most important and takes precedence. Although the Queen is the Head of State, Parliament is regarded as the supreme law-making authority. Much of the relationship between the Sovereign and Parliament is based on tradition rather than statute. The Government has two legislative chambers: the House of Commons and the House of Lords. The House of Commons consists of elected members and the House of Lords consists of elected peers as well as those with inherited titles (currently undergoing reform).

The court system in England and Wales

The lowest criminal courts or Magistrates' Courts deal with minor offences with more serious cases being heard in the Crown Court, in front of a judge and jury. The Crown Court also hears cases appealed from the Magistrates' Courts on factual points. Cases can be appealed on points of law to the High Court (Queen's Bench Division) and appeals against conviction and sentence are made to the Court of Appeal (Criminal Division).

Civil cases are heard firstly in the County Courts or the High Court, which is divided into three divisions: Queen's Bench, Family and Chancery. The Chancery Division considers complex matters such as disputes about wills, trusts, bankruptcy, land law, intellectual property and corporate laws, and the Queen's Bench Division deals with other business matters including contracts, torts or land disputes. The Queen's Bench Division has some specialist sub-divisions, including a Commercial Court, which deals with large and complex business disputes. Cases may be appealed to the Court of Appeal (Civil Division) and can be appealed from the County Court to the High Court. The House of Lords is the supreme court of appeal with its judicial functions separate from its legislative work.

In addition to the courts there are specialised Tribunals, which hear appeals on decisions, made by various public bodies and Government departments, in areas such as employment, immigration, social security, tax and land.

Figure 1: The Court Structure for the England and Wales  

(Source: )

3.1.2. Tortuous liability and contractual liability

Both tort and contractual breach are civil wrong and the person wronged sues in a civil court for compensation. Both arise due to breach of duty. However, there are differences between tortuous liability and contractual liability.

A tort, in  jurisdictions, is a . Tort law deals with situations where a person's behavior has unfairly caused someone else to suffer loss or harm.

Although the laws of tort and contract both deal with obligations, in the case of a contract the parties are voluntarily assuming obligations whereas tortuous liability is compulsorily imposed by law.

Tortuous liability arises from the breach of a duty primarily fixed by law and is owed to the community at large. In case of a contract, liability exists when there is a contract that voluntarily binds parties together and the duty is fixed by the will and consent of the parties, it is owed to definite persons

In the case of tort a contract is not involved, but this does not mean an individual or company cannot be held accountable for their actions. The injured individual cannot file for a contractual liability claim, but he can make a file for a tortuous claim. To define who can sue in the case of tort it would entail the "injured party" and not only can they sue the seller but they can also sue the manufacturer of goods, the servicer and supplier. In the case of contractual liability, a contract is indeed involved. So when someone is liable by contract, it means he is doing something wrong that was entailed in the contract making him liable, also known as a breach of contract. When someone is held liable he or she can claim damages only for the people involved in the contract, and can only sue the seller. However they can make claims for future damages that may have been induced by the defendant (including purchase price).

Regarding to privity, in case of contractual liability, only the parties involved in the contract can sue. So if a party wants to sue on behalf of the contractual liability, it is determined that there is no privity of contract between the parties and thus the "injured" party outside the contract cannot sue. Conversely, in tortuous liabilities any one as a third party who had suffered losses or damages can claim compensation from the defendant.

In breach of contract, damages are only for the purpose of compensating for the breach, but in tort, compensation is the only remedy.

In a breach of contract, the damages are liquidated and fixed according to the terms and conditions of the partied; but in tort the damages are generally un-liquidated and are determined by the court on the facts and merits and circumstances of the case.

3.2. Nature of liability of negligence

3.2.1. Legal aspects

Occupier liability

Occupiers' liability concerns the  that those who occupy (through ownership or lease) real property owe to visitor or trespasser. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises. (Source: Wikipedia)

The Occupiers Liability Act 1957 provides that an occupier has a duty "to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there." The occupiers of the premise must concern about the visitors for example the safety of the visitors. It is need to be considered as the occupiers noticed that the duty of care is limited to taking reasonable care to ensure reasonable safety and only for the purpose of that visit. It means that, the occupiers consent to a visitor's presence is limited by the purpose of the visit. The standard of care an occupier is expected to meet is the standard of "a reasonable occupier"

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In Occupiers Liability Act 1984, persons as occupiers of premises are liable for injury suffered by persons other than their visitors. This includes trespassers and those who exceed their permission. It sets out the occupier's duty of care to trespassers. The duty is to take reasonable care to see that the trespasser is protected from dangers that the occupier knows about and can reasonably expect a trespasser to encounter. An occupier will only owe trespassers a duty to care for their safety:

  • in respect of risks of which the occupier knows or has reasonable grounds to believe that they ...

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