In contract, duties are usually only owed to the other contracting party, whereas in tort, they are usually owed to people in general. While the main aim of tort proceedings is to compensate for harm suffered, contract aims primarily to enforce promises.
Again, there are areas where these distinctions blur. In some cases liability in tort is clarified by the presence of agreement—for example, the duty owed by an occupier of land to someone who visits the land is greater if the occupier has agreed to the visitor’s presence, than if the ‘visitor’ is actually a trespasser. Equally, many contractual duties are fixed by law, and not by agreement; the parties must have agreed to make a contract but once that has been done, certain terms will be imposed on them by law.
A defendant can be liable in both contract and tort. For example, if a householder is injured by building work done on their home, it may be possible to sue in tort for negligence and for breach of a contractual term to take reasonable care.
According to above, for this case, we can see that, the service breach the duty, and the damage is the guys die. They need to responsible for it.
Claim 2- Santa Rosa Institution
Joseph Wong, an assistant manager of Santa Rosa Institution, was killed in a car accident on his way home from the campus. Joseph had with him some business reports he intended to work that evening. Joseph regularly worked at home in the evening because he was subject to interruptions by complete his work here.
Required:
3b Explain the liability applicable to the staff and
3c Discuss the nature of employer liability with reference to vicarious liability and health and safety implications of his employees.
3d Advise Santa Rosa Institution related to general tortuous liability.
Answer:
An employer has a duty in law to see that reasonable care is taken to ensure the safety of employees; the duty is essentially the same as the usual duty of care in negligence. In Wilsons and Clyde Coal Co Ltd v English (1938) Lord Wright stated that the duty required the provision of a competent staff of men, adequate material, and proper system and effective supervision’. Later cases have included a requirement to provide a safe place of work.
The employer’s personal duty is only owed to employees. And not to independent contractors who may be in the workplace or to visitors to it (though other duties may be owned to such individuals under the normal law of negligence, or in some cases occupiers’ liability).
Competent staff
Where an employer takes on someone without sufficient experience or training for a particular job, and as a result another worker is injured, the employer may be in breach of their personal duty of care towards employees. The practical importance of this principle is limited by the fact that in most such cases the injured employee will be able to sue the employer vicariously for the wrongdoing of their colleague, but it is still valuable I situations where vicarious liability does not apply, such as where the injury was not caused by any specific employee, or where the employee causing the injury was acting outside the course of employment.
And employer’s duty also includes protecting employees from harassment, bullying or victimization by other by other employees.
Adequate equipment
Employers have a duty to take reasonable care to provide their workers with adequate equipment, including protective devices and clothing, and to maintain it all properly. In some cases, this duty will include a responsibility to warn employees that protective equipment should be used.
A safe place of work
Employers must take reasonable steps to ensure a safe place of work; but this does not mean that every foreseeable risk must be eliminated, if doing so would be unreasonably onerous.
A safe system of working
This duty includes such matters as organization of work, the manner and order in which it is to be carried out, the number of employees needed for specific tasks and what each person is actually to do, safety precautions and special instructions, warnings and notices, particularly to inexperienced employees.
Types of harm
In the majority of employers’ liability cases, the harm complained of will be some kind of physical injury or illness and it is clear that employers have a duty to take precautions to prevent this. However, employers also have a duty not to cause psychiatric injury to their employees and, to a much more limited extent, not to cause them economic loss.
The scope of the employer’s duty
An employer’s personal duty to employees, under any of the above heads, can be discharged by taking reasonable care; it is not an absolute duty to eliminate all risks.
Delegating the employer’s duty
Clearly there will be many situations where the employer hands over day-to-day responsibility for safety procedures to certain employees, if those employees do not take the reasonable care expected by the law; it is the employer who remains liable. The employer’s duty is therefore known as non-delegable: an employer can delegate the performance of the duty, but not the liability for that performance.
Vicarious liability
There are some situations in which one person will be held legally liable for torts committed by someone else; this is known as vicarious liability. Vicarious liability arises where there is a relationship between the tortfeasor and the party who becomes vicariously liable which justifies giving the latter responsibility for the acts of the former. In the modern law, this is usually a relationship of employee and employer, and so vicarious liability cases usually involve events which happen at or in connection with work.
The principle is sometimes justified by the moral idea that if you have some degree of authority over another’s actions, you should bear some responsibility for their mistakes, especially if you profit from their work. In reality, however, vicarious liability has become a practical tool to help compensate victims, since it allows liability to be placed with a party who is likely to be insured, in situations where the actual tortfeasor will probably not have the resources to meet a claim.
Vicarious liability is a form of joint liability, in that both the person, who committed the tort, and their employer, can be sued. In addition to being sued as vicariously liable for a tort committed by an employee, the employer may also have their own original liability – for example, if an employee negligently injures a colleague, the employer may be vicariously liable for the employee’s actions, but may also be personally liable for negligence, in failing to provide supervision that was adequate to prevent the risk of injury.
In order to decide whether vicarious liability applies in a particular situation, the courts address two questions: was the person who committed the tort an employee of the defendant, and was the tort committed in the course of that person’s employment? Employers are only liable if the answer to both questions is yes.
Advice to the company:
According above information of the liability of employer, the company should to competent staff, adequate equipment, and give employees a safe place of work and a safe system of working, adhere by the duty and adhere to law.
Claim 3: Finest Wine Ltd
On 24th December 2009, a car with four teenagers pulled up to a liquor store owned by Finest Wine Ltd and one of the teenagers Adam Hu, who was 17, purchased some beers. About three hours later, after they had consumed the drinks, they were involved in an accident causing by their making of an illegal U-turn. Two, including Adam Hu who had purchased the drink, were killed. The drivers blood alcohol level was above the legal limit. The parents of the boys sued the Finest Wine Ltd, citing the statute prohibiting sale of alcohol to persons under the legal age.
Required:
4a Explain and apply the various elements of the tort of negligence and
4b Analyze the practical applications of breach of duty and remoteness in the given situation.
Answer:
Negligence
The tort of negligence is arguably the most important within the law of tort and has the greatest potential effect in the business context. At the heart of this tort is the concept of negligence. The word ‘negligence’ is understood in ordinary language to refer to carelessness, such that when a person performs a task carelessly, he is said to be negligent. However, the tort of negligence is somewhat broader than that. This is because negligence, as a tort, can cover both acts and omissions. In other words, a person can be negligent at law for doing something he should not have done as well as for not doing something when he should have.
It is also important to note that a person can be found to be negligent in respect of total strangers. This is in stark contrast to the law of contract where the privity of contract principle generally prevents third parties from enforcing a contract. In negligence, and the law of tort generally, the tortfeasor may not know the plaintiff.
There are three essential elements in the tort of negligence. These are:
- A duty of care
- Breach of that duty and
- Damage resulting form that breach
Duty of Care
A duty of care is the duty imposed upon a person to take reasonable care for his acts and omissions. Whether a person owes a duty of care is a question of law. Over time, the courts have delineated the types of circumstances where a duty of care is imposed. Similarly, just as the court decides whether a person owes a duty of care, the court will also decide to whom the duty is owed. Case law shows that this duty can be owed to total strangers. Moreover, the duty can be owed to one person or to group of persons.
Breach of duty
Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person [objective] in the same situation would clearly have realized, also breaches that duty.
Breach of duty is not limited to professionals or persons under written or oral contract; all members of society have a duty to exercise reasonable care toward others and their property. One person, who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care. An example is shown in the facts of Bolton v. Stone, a 1951 legal case decided by the House of Lords which established that a defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. In the case, a Miss Stone was struck on the head by a cricket ball while standing outside her house. Cricket balls were not normally hit a far enough distance to pose a danger to people standing as far away as was Miss Stone. Although she was injured, the court held that she did not have a legitimate claim because the danger was not sufficiently foreseeable. As stated in the opinion, 'Reasonable risk' cannot be judged with the benefit of hindsight. As Lord Denning said in Roe v. Minister of Health, the past should not be viewed through rose colored spectacles. Therefore, there was no negligence on the part of the medical professionals in a case faulting them for using contaminated medical jars because the scientific standards of the time indicated a low possibility of medical jar contamination. Even if some were harmed, the professionals took reasonable care for risk to their patients
Damage resulting from that breach
For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation between one's breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred but for, or without, the accused party's breach of the duty owed to the injured party. Even more precisely, if a breaching party materially increases the risk of harm to another, then the breaching party can be sued to the value of harm that he caused.
Asbestos litigations which have been ongoing for decades revolve around the issue of causation. Interwoven with the simple idea of a party causing harm to another are issues on insurance bills and compensations, which sometimes drove compensating companies out of business
Conclusion
For the case, we can see that, the company breach the duty, they could not sale the wine to these boys, because they were under the age to consume alcohol. And the bad things is that because they breach the duty, and then cause damage resulting from that breach, cause the boy was killed. Therefore, the company need to responsible for it, although the boy driving in illegal, for the company, the company needs to make compensation.
Reference list
Business law, 6th edition, Catherine Frances
Tort law, 7th edition, Catherine Frances
(accessed on 12 Aug 2010)
(accessed on 13 Aug 2010)
Singapore business law, 5th edition, Frances Quinn
(accessed on 14 Aug 2010)
(accessed on 14 Aug 2010)
