The contrast between
a liability in tort and a
contractual liability
A.C. 3.1
What is a tort?
A tort is an act that injures someone in some way, and for which the
injured person may sue the wrongdoer (tortfeasor) for damages.
a civil wrong arising from an act or failure to act,
(omission) independently of any contract, for which an
action for personal injury or property damages may be brought.
Tortious liability arises from the breach of a duty primarily fixed by
law; this duty is towards persons generally and its breach is
redressible by an action for damages.
Breach of Duty in Tort
Where there is a breach of duty in tort then negligence occurs.
Negligent torts are not deliberate actions, but instead present when
an individual or entity fails to act as a reasonable person to
someone whom he or she owes a duty to. The negligent action
found in this particular tort leads to a personal injury or monetary
damages.
The elements which constitute a negligent tort are the following: a
person must owe a duty or service to the victim in question; the
individual who owes the duty must violate the promise or obligation;
an injury then must arise because of that specific violation; and the
injury causes must have been reasonably foreseeable as a result of
the person's negligent actions.
Breach of duty in tort contd…
The elements which constitute a negligent tort are the following:
1. a person must owe a duty or service to the victim in question;
2. the individual who owes the duty must violate the promise or
obligation;
3. an injury then must arise because of that specific violation;
4. and the injury causes must have been reasonably foreseeable as a
result of the person's negligent actions.
Do you see any similarities and differences with negligence in tort and
negligence in contracts?
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Distinction between a contractual
liability and tortious liability.
According to the definition of a contract, a contract requires
agreement between two or more parties, but in tort, it is not
necessary of agreement between two or more parties.
The main difference between tortious liability and contractual
liability is the nature of duty. The duties in the torts are fixed by the
law where the duties in the contracts are fixed by the contractual
parties. Therefore, there is more structured and stricter in tortious
liability than in contractual liability. (W. V. H. Rogers, Winfield &
Jolowicz on Tort (16th edn, Sweet and Maxwell, 2002)
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law/contractual-and-tortious-liability-analysis.php
What are the distinctions between
a breach of tort as opposed to a
breach of contract?
1. For there to be a breach of contract, an agreement must exist
between the parties as opposed to a tort. In tort there need not be
any agreement.
2. The remedy available for breach of tort is damages where as in
breach of contract a court may order the party in breach to:
- pay damages
- specific performance
3. The aggrieved party may also repudiate or rescind the contract.
Forum Questions
1. What is a tort?
2. Explain the nature of a tortious liability?
3. Based on the case of Hedley Byrne v Heller, what are the
principles arising out of negligence?
4. Distinguish between a tortious liability and a contractual liability.
5. What must be present for a negligence to occur?
The liability in
negligence
A.C. 3.2
What is negligence?
“In strict legal analysis, negligence means more than heedless or
careless conduct, whether in omission or commission; it properly
connotes the complex concept of duty, breach and damage
thereby suffered by the person to whom the duty was owing”: per
Lord Wright in Lochgelly Iron & Coal v M’Mullan (1934).
Negligence involves harm caused by carelessness, not intentional
harm. In order to be successful in a negligence claim, the claimant
must prove The defendant owed him a duty of care. The
defendant had breach that duty. The defendant’s breach of
duty caused damage to the claimant.
The nature of the liability in
negligence
The existence of a duty of care for injury was originally decided by Lord
Atkins neighbour test from the case Donoghue v Stevenson 1932.
To successful in the claim of negligence, claimant must provide
evidence that there was a breach of duty of care of defendant that
caused the damage to him. The court will consider whether the
defendants act fell below the standard of reasonable care, the person
concerned should do what a reasonable man would do, that could be
be expected of a reasonable person in the same circumstances
The standard that is mentioned here is not the standard of an average
man but the standard that require for a person act or job, for example,
the standard of doctor or car driver
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ence_for_Business
Damage to the Claimant
Claimant only be compensated if he has suffered actual loss, injury,
damage or harm as a consequence of anothers action. A claim
for compensation for negligence will succeed unless these elements
could be proved:
1. The breach of duty have rise to the harm.
2. The harm was not too remote from the breach
Vicarious Liability in
Businesses
A.C. 3.3
What is vicarious liability?
Vicarious liability refers to a situation when someone is held
responsible for the actions of other another person. In a workplace,
an employer can be charge for the action or exclusion of his
employees in the course of employment. At the course, to make the
employer liable for the action of employee, it is necessary that:
1. There is a relationship between them of employer and employee
2. The employee’s tort is committed in the course of his employment.
Liability
Three questions must be asked in order to establish liability:
1. Was a tort committed?
2. Was the tortfeasor an employee?
3. Was the employee acting in the course of employment when the
tort was committed?
Vicarious Liability in Contract
There is a term implied at common law into contracts of employment that an
employee will exercise all reasonable care and skill during the course of
employment. An employee who is negligent is in breach of such a term and the
employer who has been held vicariously liable for the tort may seek an indemnity
from the employee to make good the loss.
The law of agency also explains how a business or an employer can be
vicariously liable for their employee.
The law of agency creates a fiduciary relationship between the principal and the
agent. A fiduciary relationship means that the principal is placing trust or
confidence in the agent to be faithful and loyal and to conduct the principal's
business with care. When you deposit money with a stockbroker with instructions
to buy stock in your name, the broker is in a position of trust and confidence, or a
fiduciary position, with respect to your stock purchase transaction. Consequently,
when a fiduciary relationship exists, the law implies certain duties that both
parties must perform on behalf of the other, which may be amplified or
supplemented by a written agreement.
Vicarious Liability contd
An agent has a duty to obey a principal and to perform all tasks the
principal has directed, as long as those tasks are consistent with the
engage of the agent.
The principal also has obligations of the agent that are implied by law
and that may be amplified or supplemented by an agreement.
Forum Questions
1. What is vicarious liability?
2. Explain how a business would be vicariously liable through a
contract?
3. What should be established in order for an action of vicarious liability
to arise?
4. What is a fiduciary relationship?
5. Discuss the ways in which a business or employer may be exempted
from vicarious liability.
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liability-of-principal-for-acts-of-agent-commercial-law-essay.php
