Contract and Negligence Case law assignment.

by sana_ax (student)

University Degree Law

Sana ArfanAspects of Contract & NegligenceID: 1199296

Unit 5 – Aspects of Contract and Negligence for Business

Assignment 3

Sana Arfan

ID: 1199296

Tortious Liability vs. Contractual Liability

In a tortious claim the defendant may not have any previous transaction or relationship with the claimant however in contrast to that for contractual liability the defendant and claimant must have a purpose to create legal relations.

Elaborating on this further there is supplementary sovereignty in contractual law where as in tortuous liability it is more of an imposed nature. The claimant will receive compensation for damages and expected earnings in the case of contractual liability and in comparison to this the claimant is only entitled to damages in the case of tortuous liability. Another difference is that there is more privacy in the contract in the case of contractual liabilities as the parties who are involved in the contract are the ones who can actually sue for damages as in the case of Atkin v Sounders (1942) whereas in tortuous liabilities any one as a third party who had suffered losses or damages can claim compensation from the defendant whether they are in a legally binding agreement or not.

Vicarious Liability

Vicarious liability can be defined to be a ‘situation where someone is held responsible for the actions or omissions of another person’ Acas (2009). Taking into consideration the business context, it can be perceived that an employer can be held responsible for the errors of its employees; provided that it can be evidenced that the laxity was committed in the course of employment. Elaborating on this further, in other words; vicarious liability can be referred to employee negligence at work.

Generally, an individual is only responsible for the torts he/she has committed themselves discretely; however vicarious liability imposes accountability for offenses committed by someone else. Taking the scenario into consideration as James (employee) has been driving neglectfully whilst delivering furniture for Karl (employer) to the customers the employer is held legally responsible for the negligence caused by the employee. This is based on the concept of ‘respondeat superior’ which means let the master be responsible and also can be linked to the Latin maxim; ‘qui facit per alium facit per se’, which translates to mean that he who does something through another does it himself.

In legal terminology the employer which is in this case Karl is referred to as the master, whereas the employee, James is referred to as the servant. It can be proved that Karl Kennedy is not an independent contractor, in other words he is not self-employed. This is because he has a store and pays James in his business. The courts distinguish between employees and independent contractors by utilising the ‘control test’, this test determines how much control the employer has over the employee. With reference to the case of Yewens v Noakes (1880) it stated that ‘a servant is a person who is subject to the command of his master as to the manner in which he shall do his work’. This links back to the scenario as James is providing work for Karl as he is delivering goods. In the case of Warren v Henlys Ltd. (1948) it was held that the reprisal was a personal act which was not connected to his employment in any way, therefore the defendant was not vicariously liable. As James was driving negligently by exceeding the speed limit around the malleable roads whilst delivering goods for Karl he was causing danger to other road users and pedestrians. With regards to the case of Limpus v London General Omnibus Company (1862) it was held that the driver of the vehicle was in the course of his employment even though the manner of his driving was not sanctioned by his employer he was still liable as well as the master. This means that although Karl didn’t endorse James’ negligent driving behaviour or know about it he is liable. However in the case of Beard v London General Omnibus Company (1900) the employer was not liable because driving was completely out of the employee’s duties which meant it was an independent act, so if James was not driving the vehicle in the course of his employment as that is part of his job role and committed a tort Karl wouldn’t be held liable although he would be under the course of employment. In this case James was driving, which is the reason Karl employed him; this means that both employee and employer is legally responsible for James’ wrongdoing.

Another act of negligence James had committed apart from speeding is the fact that he was frolicking with the CD player, which diverted his attention from the road. In the case of Twine v Beans Express (1946) Lord Greene MR decided that the negligence was outside his course of employment which meant that he chose to give a lift to the hitch hiker therefore the employer was not liable. In contrast to this in the case of Rose v Plenty (1976) the employee was not acting outside the course of his employment but acting in furtherance of it; this refers back ...

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Referring back to the scenario due to the negligent driving an accident occurred with Max, and he suffered injuries. When the accident occurred Max was not wearing a seatbelt which was also one reason why he suffered fractured ribs and internal bleeding. This is regarded as ‘contributory negligence’. ‘Contributory negligence is negligent conduct by the injured party that is a contributing cause of her injuries, and that falls below the legal standard for protecting oneself from an unreasonable risk of harm’ (). This means that Max subsidized towards the tort and will also be accountable.

Tort of Negligence

Negligence can be defined to be the ‘failure to live up to the standard of behaviour imposed on us by law’. The elements for negligence actions concern death, personal injury or damage to property. In this case it is damage to Karl’s property as his house has been burnt down due to fireworks.

In order to prove that a tort of negligence has been committed the claimant must prove three factors:

Did the defendant owe a duty of care?
Did the defendant breach that duty?
Did the claimant suffer a loss due to that breach of duty?

Taking these factors into consideration in the case of Donoghue v Stevenson (1932) lord Atkin attempted to lay down a general principle in order to determine whether the claimant and defendant held a neighbour relationship. This is referred to as the ‘neighbour principle’ it was held that any person who you is closely or directly affected by your actions is your neighbour. Applying the neighbour principle it can be deduced that Collin does have a reasonable neighbour responsibility towards Karl and other people around him as well as the environment. Moving on another test was established by the HL in Caparo industries plc. v Dickman (1990) which is known as the ‘three-fold test’; it is present to establish whether a duty of care was owed. This test looked further into the duty that was owed taking these three points into consideration in order to prevent further floodgates opening:

The harm must be reasonably foreseeable
Must be reasonable proximity present
It must be fair, just and reasonable to impose liability

It can be distinguished that Karl fulfils this criteria and can move onto the next step, as the harm occurring was reasonably foreseeable as there were houses nearby and anything could have happened. There was also reasonable ‘physical proximity’ present between Karl and Collin. The concept of ‘fair, just and reasonable’ relates to the case of Hill v Chief Constable of West Yorkshire (1988) and it can be deduced that it was fair, just and reasonable for Karl to impose liability as his house got burnt down. Now taking the ‘reasonable man’ principle into consideration it can be reasoned that Collin did breach his duty of care which meant that he did not act within the standards of a reasonable man. Under the breach of duty there are three factors that need to be considered:

1. Likelihood of the harm

2. Seriousness of the harm

3. Has anyone suffered a loss?

It can be distinguished that the likelihood of harm occurring was reasonably foreseeable as setting fireworks near houses despite being warmed not to by David could result in serious damage. And Karl suffered a loss by losing his house.

Negligence is not actionable per se; therefore the final element of tort is that the claimant has to prove that he or she has suffered an injury or loss as a result of the defendant’s breach of duty of care (causation) and that the injury or damage is sufficiently closely connected to the breach. This means that Karl must prove that the resulting damage was due to Collins negligent behaviour and breach or duty. This can be referred to as the ‘but for test’:

Karl’s house would not have burnt down ‘but for’ Collin setting fireworks close to a domestic area.

This contrasts to the case of Barnett v Chelsea (1969) as it was held that the claimant would have died anyway the death was not a result of the defendants actions, however in this case the damage Karl has suffered is wholly due to Collins breach of duty.

Finally even if the negligence caused by the defendant instigated the damage, it does not necessarily create liability. This refers back to the concept of ‘remoteness’ which limits the extent of the defendant’s liability. The remoteness test determines whether the breach is directly linked to the causation of the damage. In this case Collins Fireworks are the direct cause of Karl’s house burning, therefore he is liable.

Occupiers Liability

Occupier’s liability can be defined to mean that an occupier of premises owes the same duty of care to all of his visitors that attend the location. The term occupier is not defined in the legislation but the courts regard the occupier as a person who has sufficient control over the premises to extent that he ought to realise that lack of care can cause damage to his/her lawful visitors. In this case the occupiers are Alton towers as they have control over the premises of the theme park.

Visitors are defined to be persons to whom the occupier gives an invitation or permission to enter or use the premises. In this case the visitor is Karl’s family including Anna. Elaborating on this further visitors are individuals who have the express or implied permission of the occupier to be on the premises.

In order to establish occupiers liability there are three factors that need to be proven by the visitor:

Duty of care
Breach of duty
Suffered an injury or loss

It can be deduced that Alton Towers did owe a duty of care towards its visitors by ensuring their safety and welfare. As there was a hole in the garden it was their duty to put up a clear sign stating a hazard or danger to inform the visitors that there is vulnerability. Putting up a safety precaution was not expensive for Alton Towers and by doing that they would have reduced the risk of any accidents occurring. Anna is covered under the OLA (occupiers liability act) 1957 as she was not trespassing.

In this case there is implied permission rather than expressed as Alton Towers hasn’t invited Karl’s family verbally or via writing they have granted permission for the general public to attend the theme park. As it was Anna’s 18th birthday she was classified as an adult and fell under the category of a mature visitor.

As Anna has suffered a broken leg she will be out of work until she recovers so that determines that she has also suffered financial losses. The final two elements that need to be proved for occupier’s liability are: factual causation and legal causation.

Factual causation refers back to the ‘but for test’:

Anna would not have suffered a broken leg but for Alton Towers putting up a safety precaution

Finally Alton Towers should have been aware that the damage caused was reasonably foreseeable as if anyone else apart from Anna was to fall they would have also suffered a loss especially children.

Reference

Atkin v Sounders (1942)

Yewens v Noakes (1880)

Warren v Henlys Ltd. (1948)

Limpus v London General Omnibus Company (1862)

Beard v London General Omnibus Company (1900

Twine v Beans Express (1946)

Rose v Plenty (1976)

Donoghue v Stevenson (1932)

Caparo industries plc. v Dickman (1990)

Hill v Chief Constable of West Yorkshire (1988)

Barnett v Chelsea (1969)