Contrast liability in tort with contractual liability Tort:
A tort is a legal term which describes a civil wrong that can be redressed by awarding damages. The term describes violation where one person causes damage to other person. When there is a breach of duty of care done unintentionally, it causes tort of negligence. Accidents can be an example of Negligent Torts.
- When there is a breach of duty of care done intentionally to harm the other person it causes Intentional tort. Fraud, theft can be the example of Intentional tort.
- Sometimes called as absolute liability, it is the lawful responsibility for any damages or injury, even if the person found strictly liable was not at fault. It is called strict liability.
The term tortuous liability is fixed by law. When a breach of duty is occurred tortuous liability arises. The wrongdoer who has done the damage is obliged to pay compensation whether it was intentional or not. Tortuous liability cannot be created by agreement. Some other types of liability that are common in a tort include: Joint Liability:This is where several tort feasors are held liable for a tort against one party.The tort feasors are said to be â€œjointly liableâ€ for the harm.How much each tort feasor will be necessary to pay may depend on their individualdegree of liability, as well as the policy for that particular jurisdiction Vicarious Liability
:This is where a superior is held liable for the actions of their subordinates.For Liability to/for Third Parties
:Third party interactions can also affect tort liability.Sometimes a person VictimLiability: If the victim actually contributed to their injury, they may actually share liability with the tort feasor.This is often known as â€œcontributory negligence
,â€ and may result in the damagesaward being reduced or completely barred. Strict Liability:Strict liability means that the tort feasor may be held liable for a abuse even if they did not intend to break a law.Examples of strict liability torts include transporting hazardous materialsin an off-limits zone or harboring dangerous wild animals. A Contractual liability
is created when two or more people promise certain things to each other. Example:
Shanta offers Simran to clean her house and in return she will pay him $10. Sam accepts the offer, and cleans her house. After cleaning the house Simran asks for his money and Shanta gives him $5 refuses to give anymore. So there is a breach of contract. Here they have an agreement so according to the agreement Sara has to pay $10. The differences
between Liability in Tort and Contractual Liability
- A contract is a legal binding agreement between two or more persons, A tort happens without consent.
- In tort the measure of damages is not limited and neither can it be indicated or assumed, in contract it can be somehow assumed how much damage has been caused.
- In tort the compensation of damage is fixed by the law, in contract compensation of damage will be decided according to the parties.
- Contractual liability means that a party to a contract has somehow breached the contract and when taken to court will be held liable for the contract or at least for the loss to the non breaching party as a result of the breach. Tort is a separate type of liability that has to do with civil wrongs and gives a cause of action for the injured party.
- A motive is often taken into consideration for a tort; in a breach of contract this is irrelevant matter.
Explain the nature of liability on Negligence. There are two senses in which the law of torts deals with negligence. In its â€˜ordinaryâ€™ meaning, negligence simply refers to a careless conduct of the defendant as opposed to a willful conduct. However in tort law, the term negligence is used more commonly in its technical sense to mean the breach of duty by the defendant consisting of his or her failure to take reasonable care to avoid a reasonably foreseeable harm to other person. Elements of Negligence:
- Duty of care
- Breach of Duty
Duty of care: Duty of care is a requirement that a person acts with others, especially in public, surveillance, attention, caution and prudence with a show to be reasonable in all the circumstances. If a person does not meet this standard of care, he or she is considered negligent. The person must take reasonable care to avoid acts or omissions which he / she can reasonably foresee would be likely to injure another neighborhood. Here neighbor are referred as to those people who are closely affected by oneâ€™s deeds that he/she should have taken care to avoid harming. This is also known as neighborhood principle which was established through the case Donoghue vs Stevenson 1932.
Breach of Duty: Breach of dutyin negligence liability may be found to exist where the defendant fails to meet the standard of care required by law.Once it has been established that the defendant owed the claimant a duty of care, the claimant must also demonstrate that the defendant was inbreach of duty. The test ofbreach of dutyis generally objective;however, there may be slight variations to this. Vaughan v Menlove(1837)
Causation: After establishing that there has been a violation of the duty, the claimant must prove that the defendant's actions caused him/her injury. A defendant will not be liable in negligence if but for his act or omission he damage would not have occurred. R v White (1910) There are other factors describing the nature of negligence:
- Crime and tort â€“ Crime is a breach of duty imposed by law. Tort is also a breach of duty imposed by law. Unlike tort crime is considered as a â€˜communityâ€™ wrong. However in a crime a person is not obliged to give compensation but they are punished. Criminal law is therefore more concerned with punishing the wrongdoer. And the law of tort is primarily concerned with the compensation that has to be paid by the wrongdoer.
- Contract and tort â€“ Contract law is concerned with the civil obligations. The law is completely concerned about the duties that one person has agreed to fulfill, for the benefit of other. The law of tort is also concerned about the breach of duties but those duties are enforced by the law itself and are not established by the agreement between parties. A breach of contract may also indicate tort but not every breach of contract is a tort.
- Criminal Negligence â€“ It occurs when a crime happens unintentionally and the wrongdoer has no intentions of hurting the victim. Although criminal negligence is difficult to prove, a typical case may involve a person being prosecuted for negligent homicide after leaving a loaded firearm in plain view of a belligerent drunk upset with the neighbor. If the drunk kills the neighbor, the prosecutor could charge the person who left the gun with negligent homicide.
- Gross Negligence â€“ In such cases the defendants actions are totally disrespectful towards the victim. Their actions show a complete disregard towards the safety of other people. Such behavior causes damage and injuries which can sometimes be very severe.
- Defense against Negligence â€“ There are many laws for defense against civil negligence. The modern law states that the person who has neglected the breach of duty cannot file a case on the court. For example, if two people in a parking lot hit each other with their automobiles, and a judge finds that the first driver was 65 percent at fault, the first driver cannot sue the second driver, but the second driver could sue the first driver for 65 percent of total damages.
Explain how a business can be vicariously liable Vicarious liability
is where one person is held liable for the tort of another. This is usually where an employer is liable for the tortuous act an employee. The employer is not normally liable merely because an independent contractor commits a tort in the course of his employment. He is liable only if he himself is deemed to have committed a tort. Elements of Tort of Negligence and defenses in different business situations. A hypothetical business scenario:
Anika Rahman owned an orphanage at Shavar. The owner of Tango beverages Company Mr. Enamul wanted to take the land on rent where Anika Rahman orphanage was situated. He offered Anika Rahman 60,000tk to put her land and orphanage on rent. Anika Rahman refused his offer and even after offering more money and facilities to Anika Rahman she also refused. So Mr. Enamul left in anger and warned her that she would have to pay and suffer for this refusal. After two months Anika Rahman went into Tango Beverages shop with her friend. While enjoying her juice she suddenly saw a dead bee floating in her juice. She immediately called for the manager and owner of the shop. When Mr. Enamul arrived and Anika Rahman remembered that he was the one who had offered her to buy her orphanage, she misunderstood him and thought it was his plan to cause damage to Anika Rahman, by providing her a faulty drink. She sued Mr. Enamul and Tango beverage Company and complained that Mr. Enamul wanted to kill her because she had not approved of giving him the land that he wanted. Elements of tort of Negligence in the scenario: Personal Security
â€“ Mr. Enamul threatened Anika Rahman that she would have to suffer for the refusal of the offer. Though the threat was given by him in anger but this caused fear in Anika Rahman mind causing her to lose her freedom of thought. Threatening someone to agree for an offer without their consent is a crime. So, here unintentionally a tort has occurred. Interest in property
â€“ Mr. Enamul wanted Anika Rahman property at any cost. He knew that if Anika Rahman left this place she would not have any other place to go. And after taking it on rent if he somehow would have damaged the property even if due to negligence the tort of negligence would occur. Fault and strict liability
â€“ The fault that Mr. Enamul had committed was that he threatened anika Rahman His second fault was that he was not careful enough to check the juices before they were served. This was a tort of negligence. As the juice company had offered to provide fresh juices. So Anika Rahman had enough proof to file a case against Mr. Enamul and his company. Reputation and Privacy
â€“ Due to this whole mess Mr. Enamul and his juice company lost their goodwill and good reputation. Firstly he was charged for providing faulty and stale juices which was unpleasant for their customers. Secondly their private official matters were spilled out in public and he was sued for threatening a lady and trying to harm her. Negligence
took place as the juice company was careless enough to serve stale juices. Tort of Negligence took place. Elements of vicarious liability in business scenarios. According to the business scenario the elements of vicarious liability
are: The juice company had promised to serve fresh juices but the decomposed cockroach proved that the juice was not fresh. So here they had a breach of duty
and served faulty juice due to negligence. They employees at the juice store were strictly liable
for this breach of duty. The employees showed one kind of gross negligence
as if they were least cared about the customers and they were not even bothered much about how the consumption of this faulty drink could harm the customerâ€™s health. â€˜ After Anika Rahman sued Mr. Enamul for the attempt of murder they charges were proved wrong. Faulty drink was offered to her but they were unable to prove that it was served intentionally to harm Anika Rahman Her mistake was taken as a contributory negligence
and she was imposed with some compensation as she had filed a false case of Attempt to murder against Mr .Enamul. So finally Mr. Jason was found vicariously liable
for the faulty drink. But Enamul was not injured or hurt by this Act. So she was not paid any compensation. Reference
Edwards & Wells, L L W ,J S E & P K W, 2012.Tort law. 5th ed. USA: Cengage learning. Small business. 2004.negligence. [ONLINE] Available at:http://smallbusiness.chron.com/negligence-liability-involve-37792.html
. [Accessed 25 November 14]. Case Breifs. 2014. Vicarious Liability. [ONLINE] Available at: http://www.casebriefs.com/blog/law/torts/outline-torts-law/imputed-negligence/vicarious-liability/
. [Accessed 25 November 14]. Murphy, JM, 2007. Street on Tort. 12th
ed. New York: Oxford Press.