Describe the nature of general tortuous liability comparing and contrasting to contractual liability * There are some similarities between tortious and contractual liability Both tortious liability and contractual liability are civil law obligations, so the remedies of all two them are only damages, injunction or specific performance without punishment as well as the civil courts have jurisdiction to hear contract and tort claims. Moreover, breaching of both types give rise to an action for damages.
For example, to contrasting liability, see case Jackson v Horizon Holidays Ltd 1975 and to torious liability, see case Scott v Shepherd 1773. And the person who wronged sues in the court for compensation. * The difference of tortious and contractual liability In tort claim, anyone who has suffered losses because of a wrongful act of defendant can claim for their damage without being necessary to have any previous transaction or relationship with the defendant. For example, a passenger can sue a motorist for making him suffer injury when they have accident on a road.
In contrast, there is more privacy in the contract in the case of contractual liabilities as the parties who are involved in the contract are the one who can actually sue for damages as in the case of Atkin v Sounders, 1942. Moreover, general rule of contractual obligations are voluntarily undertaken, that means the defendant and the plaintiff have opportunity to escape from their relationship before a wrongful act is occurred. Therefore, liability in contract cases is more freedom than in tort liability.
Meanwhile, tortious liability is imposed the defendant because the result of the plaintiff loss is appeared as the reason to create their special relationship. For the compensation, when a tort is committed, the remedy is just an action for damages while in the case of contractual liability, the remedy for wrongful acts can also be injunctions and specific performance. Furthermore, in tort case, damages will be awarded if there are a causation and it must be reasonable foresight. Claim 1 * Issue: Was Charlie liable for the injury of the thief? * Rules.
* A tort is a civil wrong arising from a general duty rather than from a contractual relationship. Damages will be awarded if there are causation and reasonable foresight. There are some defences to an action in tort: genuine consent, self defence, unavoidable accidents, within rights of statutory authority, necessity, Act of state and Act of God. * Trespasser is a person who knows he does not intend communication with the occupier or anyone else on the premises. That includes three typical torts: trespass to land, trespass to goods and trespass to person.
* The Occupiers’ Liability Act 1984 has replaced the common law rules governing the duty of occupiers of premises to persons other than visitors. The duty is to take such case as is reasonable in all circumstances to see that the person to whom a duty is owed does no suffer injury on the premises by reason of the danger. That means the occupier can only be liable for injury to the person, but not for loss or damage to property. * Application Charlie grows prize winning flowers in his garden. Before a major Flower Competition, he discovers that someone has stolen some of his best flower.
Thus, in one night he hides in a tree in his garden to catch the thief. A trespasser is not defined by the Act but, generally speaking, it is a person who knows he does not intend communication with the occupier or anyone else on the premises (see case British Railways v Herrington 1972). At about 4. 00am, there is a person get out of one car and goes into Charlie’s garden then start to dig up Charlie’s flowers. It is obvious that this person does not intend to communicate with Charlie and also anyone else on the premises.
Therefore, he can be called as a trespasser who commits the law of torts including trespass to land (see case Basely v Clarkson 1681), and trespass to goods (see case Neave v Neave 2002). When seeing the thief dig up the flowers, Charlie yells at him to stop and then bring out the gun and starts shooting. Normally, Charlie has the right to have an act against the thief to save his goods and land. Thus, preparing a gun is just Charlie’s self-defence action to protect his goods and land. However, that thief has to run away with an injury in the left arm which is hit by a bullet.
In any circumstances, bring out a gun and shoot is always causing danger and injury to other people. Therefore, using the gun and shooting to the thief that means Charlie has to aware of the danger that the thief may be suffered. Moreover, that thief does not have any action assault to Charlie or any weapon that equivalent to the gun of Charlie. Under this circumstance, the balance of power between the thief and Charlie does not match to each other. Thus, the action of Charlie is not personal protection or that it is not a reasonable self-defence so Charlie action is understood as trespass to person.
According to the Occupiers’ Liability Act 1957, an occupier of premises owes a common duty of case to all visitors to those premises. But if the visitor exceeds the limit of the permission, he becomes a trespasser. Then the occupier’s duty was to act with common sense and humanity to trespassers included the seriousness of the danger. And under the Occupiers’ Liability Act 1984, the duty owed is to take such care as is reasonable in all the circumstances to see that the person to whom a duty is owed does no suffer injury on the premises by reason of the danger.
It can be discharged by taking reasonable steps to give warning of the danger. In the case of trespassers, the occupier can only be liable for personal injury and not damage to property. In this case, the thief is a trespasser since he has no intends communication with Charlie or anyone else on the premises, or since he has no legal right of entry Charlie’s garden. Provided that Charlie is regarded as the occupier of the premises, Charlie owes a duty to take such care as is reasonable in all circumstances to see that he does no suffer injury on the premises by the reason of the danger.
Causing injury in the left arm of the thief, Charlie breaks the duty to his trespasser. * Conclusion Result from breach the duty of care to trespasser, Charlie has to face liability for the thief’s injury. Claim 2 * Issue: Does Upton have to pay damages for both the customer and Cynthia? * Rules * A tort is a civil wrong arising from a general duty rather than from a contractual relationship. Damages will be awarded if there are causation and reasonable foresight. There are some defences to an action in tort: genuine consent, self defence, unavoidable accidents, within rights of statutory authority, necessity, Act of state and Act of God.
* Negligence is causing loss by failing to take responsible care when there is a duty to do so. A duty of care is owed to person whom it could be reasonably be foreseen would be affected by the defendant’s carelessness. * Contributory negligence is occurred when the plaintiff contribute by failing to take reasonable care. So the defendant damage can be reduced by the court decision. * An employer is liable for torts committed by his employees in the course of their employment. An employee may be acting in the course of his employment even if he disobeys his employer’s orders.
Vicarious liability can also arise for the tort of independent contractors. * Consent of the claimant is usually a defence to an action in tort, which is more than mere knowledge of a risk, and also is freely given. * The Health and Safety at Work Act 1974 puts a requirement on employers and self-employed to consider and protect the health and safety of persons at work and persons other than persons at work. Employers’ general duty is to ensure the health and safety of their employees (as far as is reasonably practicable).
Employees must take care of their health and safety of themselves and other persons, and they must obey employers’ health and safety requirements. * Application Uptons run a plant business and Cynthia is their employee. Cynthia is a part time horticulture student in the early stages of her course and also be Uptons’ “technical expert”. That means she is a professional about plant. According to the Health and Safety at Work Act 1974, employees must take care for their health and safety of themselves and other persons who might be affected by their acts or omission at work.
It shows that Cynthia owes a duty of care to any persons who affected by her work and that included her customers (see case Donoghue v Stevenson 1932). That means Cynthia will be liable to her omissions at work if it is the reason causing damage about the health and safety of her customers. However, Cynthia had given a wrong advice to a customer that a plant would have no allergic side effects. Giving false statement to the customer is Cynthia’s action of breaching the duty of care. It is reasonable foresight that customers always believe in advices of experts.
And in this case, there is no doubt that the customer believes in the wrong advice of Cynthia that there is nothing happened to his health and safety if he sits near the plant. Thus, when sat next to the plant for several months, this customer suffered a variety of respiratory disorders. Obviously, if there is no wrong advice of Cynthia, the customer will not be in a bad condition of healthy. Base on the definition of consent, a defence of tort; if the claimant has knowledge of a risk but still volunteer to accept a risk of injury, the defendant will not be liable (see case Morris v Murray 1990).
However, the customer is not a plant expert to have knowledge of the danger so he has no genuine consent of the risk. Cynthia is a “technical expert” of Upton’s business so that she is required to display her skill that included the knowledge of the plant affect to the health. She also had no disclaimers for giving wrong advice to the customer. It is proved that Cynthia has no defence for her act, and giving misstatement to the customer is Cynthia’s negligence. Normally, by giving misstatement and making the customer suffer the damage of heath, Cynthia has to be liable to her negligence.
However, according to Vicarious liability, if an employer is liable for torts committed by his employees in the course of their employment, even if an employee does something for his own convenience while carry out his duty and this act is negligent, the employer may still be liable (see case Century Insurance v Northern Ireland Road Transport Broad 1942). In this case, Cynthia is an employee of Uptons and her negligence is occurred when she is in the course of her employment. As a result, Uptons is the employer of Cynthia so they have to be liable to Cynthia’s negligence.
Base on the Health and Safety at work Act 1974, employers’ general duty is to ensure the health and safety of their employees, as far as is reasonably practicable. That means the Uptons must have liability to take care about the health and safety of their all employees (see case Hunt v. Sutton Group 1994) or it can be understood that Uptons owes a duty of care to Cynthia. However, while Uptons were aware of the side effects of such a plant to the health, they still believed that their young staffs, including Cynthia were healthy enough and would have no problem. So they did not ask their staffs to wear masks when they worked with the plant.
This kind of Uptons’ action is supposed as the breach of duty to their employees. Soon after the claim of the customer, an employee of Uptons, Cynthia herself has suffered the same symptoms to the customer. It is reasonably foresight that does not wear marks when working with the plant will cause trouble to anybody. If Uptons asked Cynthia to wear marks when working with such kind of plant, she would not suffer the respiratory disorders symptoms. Obviously, the damage of Cynthia health was occurred as the result of the Uptons’ negligence and they are liable for Cynthia situation.
Under the Health and Safety at Work Act 1974, employees must take care for their own health and safety even when their employers do not require and also they must obey employers’ health and safety requirements. That means Cynthia owes the duty to take care of herself health and safety at work. It also means that she has to work under the bad condition only when her employers require. But there is no evidence that the Uptons required their staffs to work with the plant without wearing marks. Thus, Cynthia was absolutely able to wear marks to protect herself from the bad working condition.
However, Cynthia was suffered the symptoms. It is reasonably foresight that Cynthia is an expert so she might have a degree of knowledge about such plant affection, if Cynthia wore mark when working, her health condition would be ensured. Obviously, in this case, Cynthia had freely accepted working under the bad condition even when she knows about the risk. Thus, there is no wrong to done to Cynthia when she consents of it (see case Morris v Murray 1990). Therefore, it is not only the negligence of Uptons but also the negligence of Cynthia to herself.
According to the Law Reform (Contributory Negligence) Act 1945, if the damage suffered as a result of negligence was partly caused by contributory negligence of the claimant his claim is proportionately reduce (see case O’Connell v Jackson 1971 or Froom v Butcher 1976). It is sufficient that the damage of Cynthia was due to herself failure to take reasonable precautions to avoid the risk which she absolutely foresaw. So this is the contributory negligence of Cynthia. Therefore, the damages of Uptons to Cynthia could be reduced. * Conclusion.
Consequently, Uptons have to pay all damages to the customer but to Cynthia the damages can be reduced by the court. Task 2 Distinguish strict liability from general tortuous liability In many torts the defendant is liable because he acted intentionally or at least negligently. He may escape liability if he shows that he acted with reasonable care. That is essentially the position in the tort of negligence itself. But there are also torts which result from breach of an absolute duty with strict liability: the defendant is liable even though he took reasonable care.
It is provided that: Where a person who, for his own purposes, brings and keeps on land in his occupation anything likely to do mischief if it escapes, he must keep it in at his peril, and if he fails to do so he is liable for all damage naturally accruing from escape. The rule in Rylands v Fletcher 1868 defines that tort of strict liability. Fletcher employed competent contractors to construct a reservoir to store water for his mill. It means that for his own purpose, Fletcher has brought and kept on land in his occupation a subject that might cause trouble to other occupier if it escapes.
Therefore, Fletcher owes the duty of care to all other land side when his subject escapes. Meanwhile, in their work the contractors uncovered old mine working which appeared to be locked with earth. They did no more to seal them off and it was accepted at the trial that there was no want of reasonable acre on their part. It is obviously that sealing the uncovered old mine is not the liability of Fletcher but Rylands. So having the trial before keeping on his work is that means Fletcher has took reasonable care on their part.
However, when the reservoir was filled, the water burst through the working and flooded the mine of Rylands on adjoining land. Base on the principle quoted of strict liability, causing a loss to Rylands’ occupation is that Fletcher failed to keep his absolute duty so he was liable for the damage suffered by Rylands. In generally, a tort is a civil wrong arising from a general duty rather than from a contractual relationship. There are some defences to an action in tort: genuine consent, self defence, unavoidable accidents, within rights of statutory authority, necessity, Act of state and Act of God.
General tortious liability occurred when the defendant breach the duty of care to the plaintiff. A plaintiff must prove certain things about wrongful acts including fault to provide the wrong of defendant. In conversely, strict liability can be always applied without fault or irrespective of fault and even when the defendant has took all reasonable care, he still has liability if the damage appeared. That means strict liability cases, the defendant is liable even though he did not intend to cause the harm and did not bring it about through his negligence.
Thus, there is no defence for the defendant to escape liability in strict liability case. Claim 3 * Issue: Was Yorick liable for the loss of Lear? * Rules * A tort is a civil wrong arising from a general duty rather than from a contractual relationship. Damages will be awarded if there are causation and reasonable foresight. There are some defences to an action in tort: genuine consent, self defence, unavoidable accidents, within rights of statutory authority, necessity, Act of state and Act of God. * Negligence is causing loss by failing to take responsible care when there is a duty to do so.
A duty of care is owed to person whom it could be reasonably be foreseen would be affected by the defendant’s carelessness. * Liability for economic loss is limited to cases in which there is a special relationship between the claimant and the defendant. * Negligent mis-statement is when a special relationship the person who made the statement must have done so in some professional or expert capacity which made it likely that others would rely on what he said. This is the position of an adviser such as accountant, banker, solicitor or surveyor.
* Application Lear has received $250,000 superannuation for retiring. Then he seeks Yorick for investment advice. A financial advisor providing advice usually does so in a professional or expert capacity which made it likely that others would rely on what he said (see case Chaudrey v Prabhakar 1989). Yorick has been a qualified accountant and investment advisor for over 30 years. It is obviously that he has professional capacity to ensure the others will rely on his advices. Therefore, Yorick owes a duty of care to anyone to whom he gives advice.
Following the Lord Denning’s test of a special relationship that is adopted by the House of Lords; “a special relationship is one where the defendant gives advice or information and the plaintiff relies on that advice. The defendant should realize that his words will be relied on that by the person he is addressing or by a third party” (see case Candler v Crane Christmas 1951). In this case, Yorick and Lear are friendship so Yorick does not charge Lear for the advice. That means if they are not friend, Lear would have been paid to have the advice.
It can be understood that the advice of Yorick is not just a talk between two friends with no purpose, but an advice for other to rely on. With this kind of special relationship, Yorick has a duty of care to Lear when he gives Lear the investment advice. Then by, Lear discovers that the company had been in serious financial trouble for many months and it is well known in the financial market and among many investment advisors that the company was very high risk and a poor investment. Clearly, Yorick gives to Lear a wrong advice. That means Yorick has a breach the duty of care to Lear.
Furthermore, it is reasonably foreseeable that Lear relies on the advice of Yorick. Therefore, when Yorick strongly advises Lear to invest his money in a company called Macbeth Ltd, Lear has followed this false statement and suffered loss all of his money after only one month because that company goes into liquidation. It is right to say that there will be no loss for Lear if Yorick does not give the wrong advice. Also, Yorick has no disclaimer that he has advised Lear invest all his money into the Macbeth Ltd company. Causing the economic loss of Lear by giving him the mis-statement is Yorick negligence.
Base on the economic loss liability, a person who has suffered financial loss can make claim for their loss of business profit while the damage is put right. Then Lear can sue Yorick for his mis-statement negligence. * Conclusion As consequence, Yorick has liability to pay damages for Lear. References 1. No author (no date) Compare and contrast tortuous liability and contractual liability [online] [cited on 30th December 2010] <http://wiki. answers. com/Q/Briefly_Compare_and_contrast_tortuous_liability_to_contractual_liability#ixzz19nYVuZdU> 2. Edexcel HNC/HND Business. (2004) Common law. 1st ed, BPP: Professional Education, London.