Contrast liability in tort with contractual liability
A contractual liability means that all persons involved in the contract have the contractual duties to complete all conditions in the contract, while liability in tort means that a party causes damages to another party and is liable to remedy to that party no matter it is intentional or unintentional, but the plaintiff must show evidence on how the defendant harms to him. The liability in tort, unlike contractual liability, need not to have any contracts formed. In business contracts, although the seller has completed all conditions in the sales contract, if the buyer founds any damage which is proved to be caused by the seller, damages can be proved from the buyer and he may seek for remedies from the seller through the law of tort. Explain the nature of liability in negligence
Negligence is defined as an unintentional tort which a case is caused by unpredictable accident. Unintentional tort is a wrong that a person does not know its consequences, acted carelessly towards another and caused damages or injuries to another (ADBM Lecture Notes, 2015:6). An accident is far beyond control by the defendant can cause negligence unlike intentional tort which was found that a foreseen consequence is raised by the defendant but he still continues that fault. Negligence is found on someoneâ€™s duty of care. As everyone in the world has been imposed a duty of care to another base on their identities in the situation, which they have a liability towards another no matter they have a contractual relationship or not. Duty of care can be determined by the 3 factors, which are whether the damages are foreseeable, whether there is a close and direct relationship between the plaintiff and the defendant, and whether it is reasonable to impose that duty of care towards them (ADBM lecture notes, 2015:20). For example, a shopkeeper should ensure all customers entering their shop are safe and comfortable; a security should ensure the safety of their places which should be prevented any thieves and people who creates disturbance. The plaintiff must present evidence on breach of duty that the defendant has a duty of care to him. Negligence can also be proved by â€œreasonable man testâ€ which a reasonable person who is mentally fit and be rational to act differently against the defendant in the same situation (ADBM Lecture Notes, 2015, 17). Explain how a business, like TOY-S-A can be vicariously liable
Vicarious liability in business can be established between employer and employee. If an employee has done negligence to his customer, the employer and the related party may also be sued although the employer did not cause this accident. But to prove whether TOY-S-A is vicariously liable, we must understand the duty of care towards this company. As a toy shop, the basic duty of care of TOY-S-A must ensure all their products and the products selling in their company are safe and follow all legal regulations. In this case the toy did not indicate the age group of the toy and provide sufficient information in languages in the instructions, which the chemistry set company should be found guilty against the â€œToys and Childrenâ€™s Product Safety Ordinanceâ€. As a result based on the vicarious liability, since this product is sold from TOY-S-A, TOY-S-A should be vicariously liable to Mrs Ho. The second duty of care of TOY-S-A is to ensure her employees are well trained for the sales of goods. In this case, Samson is an employee of TOY-S-A and did misrepresentation to Mrs Ho. TOY-S-A should be liable to this employee base on the vicarious liability on employers and employees relationship. Apply elements of tort of negligence and defences in different business scenarios.
In this case, Mrs Ho may sue damages from Samson, TOY-S-A company, Chemistry Set Company and the chemistry set company Research and Development director. Elements of negligence include duty of care, breach of duty, proximate cause and actual harm (ADBM lecture notes, 2015:10). In breach of duty, Samson did not explain to Mrs Ho how to use this chemistry set properly as a salesman and did not explain the potential danger of this product, instead he tried to persuade Mrs Ho to buy by over exaggerating the benefits of this chemistry set, which breaches the duty of care for being a salesman as the duty of care of a salesman is to present all information needed to be considered before purchasing or using the product. TOY-S-A breaches the duty of care of monitoring her employee to sale this product correctly, and ensures all the products sold in this toy shop are legally present all instructions, including instructions in different languages and the age group suitable for playing this chemistry set. Based on strict liability, Samsonâ€™s fault renders TOY-S-A liable to the torts of her employee. Chemistry Set Company breaches the duty of care of presenting sufficient information for Mrs Ho before and after purchase since there are no indication of age group suitable and no Chinese instructions for consumers in Hong Kong, they also not ensured the chemistry set are safe to use since Aron was severely burnt after removing the lid. These negligence are against the criminal law of the â€œToys and Childrenâ€™s Product Safety Ordinanceâ€ as well. Base on strict liability, the chemistry set company is strictly liable to her products. The chemistry set company R&D director breaches the duty of care of ensuring all persons using this chemistry set are safe. We can see there is negligence during the R&D development of this chemistry set since the chemicals inside this set causes severe burnt to Aron. The R&D process did not ensure these chemicals are safe for every person. In proximate cause, Aron would not be severely burnt if the sales did not misrepresent this chemistry set to Mrs Ho and present all information needed to be considered before purchasing and using this chemistry set by understanding this chemistry set; if TOY-S-A founds the problem of misrepresenting information of this chemistry set and provide sufficient trainings to her salesman to provide sufficient information to their products; if the Chemistry set company has label the indication of suitable age group and provide sufficient information, include translating the instruction manuals in different languages, and provide all information needed to be aware of and considered to the TOY-S-A company and her salesman; and if the R&D develops a safe product by involving chemicals which are constantly safe to use by the children. Based on the unreasonable conducts from the above defendants, although some of the conducts of the defendants may not be illegal, they resulted harm to Aron who was severely burnt by the product and cause harm to him. The actual harm is obviously can be seen by Aron that he was severely burnt after opening the lid of the chemistry set, and lived in the hospital for two weeks. For defences, if the situation is changed that the chemistry company has label the indication of age groups suitable for and provide different translation to the instructions manual, and providing sufficient information to the TOY-S-A company and her salesman for consideration before using this product, the defendant may defend themselves for â€œWhen plaintiff is the wrongdoerâ€ (ADBM lecture notes, 2015:12). Base on the defences of plaintiff is the wrongdoer, the plaintiff is liable to a part of the wrongful doing to the procedures before using this chemistry set, which includes reading the instructions manual carefully and avoid this chemistry set from Aron because of the duty of care as a mother to her children. This is resulted in â€œContributory Negligenceâ€ which the plaintiff behaviour contributes this damage (ADBM lecture notes, 2015:18). Apply the elements of vicarious liability liker the situation of TOY-S-A.
Although TOY-S-A and the R&D director of the chemistry set company is not directly liable to the cause of this accident, they have a vicarious liability to it. For TOY-S-A, although they may have provided enough trainings to her salesman on how to introduce their products correctly to the customers, Samson, the TOY-S-A employee is working for this company while selling this chemistry product. According to the Ming An Insurance v Ritz Carlton, the court hold that the employee will be considered as in the course of employment when the tortious act of this employee was closely connected to his employment base on a â€œClose Connection Testâ€(ADBM lecture notes, 2015:11). As a result the TOY-S-A is liable for the vicarious liability towards the fault of Samson. Also, the manufacturer of this chemistry set may also be sued based on the vicarious liability. Although the manufacturer proves that they follow the manufacturing procedures from the R&D department of the chemistry set company, based on vicarious liability, the manufacturer is liable to the product she makes. Reference:
- ADBM Lecture Notes, Section 4.2, Negligence and Strict Liability, February 2015.
- ADBM Lecture Notes, Lecture 6, Law of Tort, February 2015.