Assessing Liability in Tort Law

The assignment content discusses vicarious liability and negligence in contract law. Two case scenarios are presented: the first involves Graham, a nightclub employee who manhandled a troublesome customer without permission from his employer, leading to damages for the customer. The second scenario involves Carla, a courier who used her company's van to deliver parcels on her day off, resulting in an accident and damages to another driver. The assignment concludes that parties are obliged to act responsibly and fulfill their obligations and duties. In absence of contractual obligation, tort law applies to guide individuals to operate in a fair manner.

Aspects of
contract

TABLE OF CONTENTS
Introduction......................................................................................................................................3
Task 1...............................................................................................................................................3
1 Essential elements for the formation of valid contract.............................................................3
2 Description of main types of contract along with their examples............................................4
3 Description of contractual terms...............................................................................................5
Task 2...............................................................................................................................................6
1 Draft of contract and description of contractual terms.............................................................6
2 Report to Mr. Michael Hair .....................................................................................................6
Task 3...............................................................................................................................................7
1 Differences between contract and tort liability.........................................................................7
2 Conceptual description of duty of care and neighbor principle................................................7
3 Vicarious liability......................................................................................................................8
Task 4...............................................................................................................................................9
1 Applicability of liability in negligence.....................................................................................9
2 Applicability of vicarious liability in given situations..............................................................9
Conclusion.....................................................................................................................................11
References......................................................................................................................................12
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INTRODUCTION
Contract and negligence law is developed to provide description of standard obligations
to the individuals and commercial entities so they can act in an appropriate manner. These
guidelines are required to be complied by all person else they will be held obliged to provide
damages for the misconduct to the innocent party (Gardiner, 2006). Present study based on
evaluation of various aspect of contract and negligence legislation. By considering these
provisions, assessment of given case scenarios will be done in order to provide justified
recommendation to the cited parties. For this aspect, reference of previous case precedents will
also be considered for better reasoning of provided recommendation.
TASK 1
1 Essential elements for the formation of valid contract
Contract can be defined as a promise formed by consent of two or more parties by
entering into a legal relationship. For the formation of valid and enforceable contract following
aspects are required to be satisfied- Offer- Agreement between parties is created by appropriate offer and acceptance. Offer is
a proposal of promise given by one party to another. It must be specific and possible to
perform (Nysten-Haarala, Lee and Lehto, 2010). It can be provided in general or to a
specific person. However case of Pharmaceutical Society of Great Britain v Boots,
invitation to treat does not have legal status of offer because it is merely a way of
showing intention to create contractual relationship. Acceptance- It is consent given by the party to whom offer was made. It must not be
supported by significant modification or condition else it will consider as counter offer
instead of acceptance (lucy V Zehmer, 196 Va 493 84 S.E. 2D 516). Intention to create legal relationship- This element is assumed to be part of the contract
formed by parties (Types of Contracts, 2015). In accordance with this aspect, parties must
intend to form legal obligation for the fulfillment of promise (Jones v Padavatton [1969]
1 WLR 328). Consideration- In legal terminology consideration is known as pro-quo i.e. something in
return (Holmes., 2009). Agreement formed by parties must be supported by mutual
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benefit else it will not be valid. This benefit is not required to be at arm length price but it
must be supported by consent. Capacity- Parties forming contractual relationship should be able to do so. For this aspect
they must not have qualification of minor, unsound mind, lunatic or restriction imposed
by law. Privity of contract- In accordance with this doctrine, third party to the contract is not
entitled to sue contracting party for the fulfillment of promises made by them (Macneil
and Gudel, 2001).
Case scenario
In the described case situation, invitation to treat was given by James through
advertisement on website for the sale of camera for £55. By considering this advert, offer was
given by Maria for purchase of camera at £45. On this offer counter offer was given by James
that he will sell camera at £55. Maria did not responded on this offer. James did not have other
offer due to which he decided to provide acceptance on the previous offer given by Maria.
However, he is not entitled to do so because with the providing of counter offer previous offer is
said to be canceled. Henceforth, there is no contractual relationship between parties.
2 Description of main types of contract along with their examples
Face to face contract
This form is generally selected by individuals to enter into contractual relationship to
fulfill day to day needs. This contract is formed mostly in verbal manner. In this type of contract
all the parties are present at common place for the negotiation of contracting terms (Devenney
and Johnson, 2013). Further, offerree is required to provide quick acceptance else offer will be
lapsed due to passage of reasonable time. Example of face to face contract is travelling from bus.
Business to business contract
These kinds of agreements is formed among two commercial entities and public is not
involved in it. These contracts are supported by terms inserted by the entities in accordance with
their requirements. Example of business to business contract is sale of goods by wholesaler to the
retailer.
Business to consumer contract
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This contract is created between public and business organization. In such contracts,
terms are stated by the business entities which are accepted by the customers. Business
organization are required to incorporate implied terms of Sales of Goods Act 1979 for fair and
valid contract.
Online contract
This contract is formed though electronic sources between two or more parties. Example
of online contract is shopping through e-trading websites. These contracts are governed by norms
of distance selling regulations.
Distance selling
This type of contract is selected in situation where parties are not able to present at same
place to decide the terms and conditions of the agreement. Due to this aspect, agreement is
created by communication through post or telephone (Nysten-Haarala, Lee and Lehto, 2010). For
the assessment of validity of this contract, postal rule in applicable (Powell v Lee (1908) 99 L.T.
284; Robophone Facilities Ltd v. Blank [1966] 3 All E.R. 128. ). In accordance with this rule,
distance contract is said to valid if acceptance is communicated to the party to whom offer was
provided (Middlemiss, 2011). Example of distance selling contract is import of goods and online
contracts. This is similar to the written contract but these are conducted online as parties are not
present at similar place.
Written contract
This is most formal agreement that is generally used by business entities. In this contract,
parties are required to prepare deed in order to define terms (Types of Contracts, 2015). This
deed is considered by law to provide damages to the aggrieved party in situation of non-
satisfactory performance.
Verbal contract
These contracts are formed on the basis of trust and faith through verbal communication.
In this, terms are described orally by parties. This contracts are informal in nature but are valid of
law. In situation of dispute in contracting parties in verbal contract, damages are provided by
considering situation as there is no evidence of deed of contract.
Inferred contract
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These contracts are also known as implied contract which is formed by conduct. In this
contract offer and acceptance is provided by actions. Example of implied contract is lunch in a
hotel.
3 Description of contractual terms
Expressed terms
These terms are inserted by the mutual will of all the contracting parties in order to
requirements to be fulfilled while performance by other parties. Further, bifurcation of expressed
terms is enumerated below Conditions- These terms are linked to the essence of contract which describes primary
obligation of parties (Howells, 2011). In accordance with the case of Poussard v Spider
breach of conditions is treated as breach of contract thus aggrieved party is not entitled to
provide performance. Warranties- Warranties are secondary terms linked to the conditions of the contract. In
situation where parties fail to satisfy these terms they are liable to provide damages to the
innocent term. For this aspect case of Bettini v Gye can be considered.
 Innominate terms- These terms are not distinguished as condition or warranty. In the
breach of these terms impact of damages is considered that party is deprived from whole
benefit or not to provide relief (Nysten-Haarala, Lee and Lehto, 2010).
Implied terms
In order to protect interest of weaker party implied terms are inserted by legislation and
custom. These terms are presumptive in nature as it is not expressly stated. These terms are
necessary to be fulfilled or party can challenge the validity of the contract.
Exclusion clause
These clauses are included in the contract to make reduction in obligations in situation
where party is not in position to provide satisfactory performance (Palmer, 2014). These terms
are considered for relief only if it properly inserted in the contract and it is supported by
legislation (Chapleton v. Barry Urban District Council (1940).
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TASK 2
1 Draft of contract and description of contractual terms
In the given case description, Bella UK had produced a miracle oil which helps in hair
growth to the user. For the promotion of their product, they had sent out the flyers with as
statement i.e. “offer of half price is valid for limited time period. Price of the ten boxes is 5 and
results are guaranteed.” Term of guarantee is supported by exclusion clause i.e. seller will accept
only liability for the adverse consequence and success probability of product is 20%. Hair 4 U is
planning for taking the benefit of this offer (Warren, 2012). Draft of their contract is as follows
Draft of contract of purchase of oil product
Purchasing party: Hair 4 U
Selling party: Bella UK
Description
Contract for the purchase of ten boxes of Miracle oil for the price of 5.
Contractual terms Expressed terms- In this contract expressed term is quantity and price stated by the seller
company regarding the miracle oil. This will be considered as condition of contract.
Warranty in this agreement is that results are guaranteed. Implied terms- All the parties to the contract are required to operate in fair manner.
Further, satisfactory performance will be provided by the parties in order to discharge
their obligation.
 Exclusion clause- Exclusion clause of the agreement is statement that seller will accept
only liability for the adverse consequence and success probability of product is 20%.
Provisions of this contract will be governed by implied terms of Sales of Goods Act. In addition
to this No modification will be considered valid if it is not in written with authoritative
signature.
Managing director of Hair 4 U Managing director of Bella UK
___________________ _________________________
(Signature) (Signature)
Date: _ _ _ _ Date: _ _ _ _
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2 Report to Mr. Michael Hair
Breach of condition
Condition
Condition in the present contract is price and quantity described by the seller of the hair
oil.
Impact of breach of condition
In situation where conditions of the contract are not satisfied by the company Bella UK,
then owner of Hair 4 U is able to repudiate entire contract (Friedman, 2011). Breach of condition
will be considered as breach of contract. It is because, English law states that breach of condition
repudiates entire contract. As a consequence, aggrieved party is not required to provide
performance and they can also make claim for damages.
Case reference
For this aspect case of Poussard v Spiers (1876) 1 QBD 410 can be considered. In
accordance with this case, condition is the major terms which is directly connected to the root of
contract. For the breach of condition, innocent party is entitled to repudiate entire contract and
they can make claim for damages.
Legality of exemption clause
Exclusion clause
Exclusion clauses are considered to repudiate the damages only if properly inserted in the
contract and it is justified in accordance with the provision of law (Appleman, Appleman and
Holmes, 2014). In the present agreement, exclusion clause is the statement that seller will not
accept liability for the adverse consequence and success probability of product is 20%.
Impact of Exclusion clause
By the effect of exclusion clause, obligations of parties is reduced of providing damages
while inappropriate performance is provided by them. In the given case situation exclusion
clause is described prior to the formulation of contract however it is not completely valid in
accordance with the provisions of Sales of Goods Act. In accordance with its Act, seller is
required to provide qualitative goods to customers by which possibility of injury can be reduced.
Case reference
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In accordance with the section 2 of the Unfair Contract Terms Act 1977, seller is not
entitled to restrict the liability for the personal injury or death occurring from the act of
negligence. This aspect was clarified in the case of Phillips Products v Hyland [1987] 1 WLR
659.
TASK 3
1 Differences between contract and tort liability
Description of contractual and tort liability
Liability in contract arises in situation where terms and conditions are satisfied in
accordance with the contractual deed by parties (Herring and Milosevic, 2001). On the other
hand, liability to provide damages in tort arises in situation where party fails to take duty of care
due to which another party is injured.
Contractual and tort liability covered in provisions of civil. Provision of liability has been
inserted to provide compensation to the innocent party for the damages occurred to them.
However, there are certain differences between these liabilities.
Major difference between contract and tort liability is of relationship. In contract
relationship is created by the mutual will of parties. Parties are already familiar to one another.
However, in tort, parties do not know each other does relationship is imposed by law (Milosevic
and et.al, 2004). They are not in relationship until and unless some negligent action occurs.In
both these liabilities damages are provided by considering different aspects. In contractual
liability damages are provided on the basis of deed prepared by parties. On the other hand, in tort
damages changes as per the situation. Case example of contractual liability is (Hochster v De la
Tour (1853) 2 E & B 678) and tort liability is (Topp v London Country Bus [1993] 1 WLR 976).
2 Conceptual description of duty of care and neighbor principle
Meaning of liability
Liability can be defined as obligation imposed by court of law in situation where
individual does not provide satisfactory performance and due to which injury is occurred to the
innocent party.
Meaning of negligence
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Negligence is a misconduct in which party fails to take care of their general duties. Due
to their carelessness, an innocent party is injuring (Friedman, 2011). In order to make successful
claim of the negligence, innocent party is required to satisfy following criteria- Duty of care- Defendant should have obligation to take care of claimant in order to make
reduction of possibility of occurrence of injury (Donoghue v Stevenson [1932] AC 562). Breach of duty- Defendant must breach their duty by acting negligently in that particular
situation where injury is occurred to claimant (Holmes, 2009). Causation- Negligent action of defendant must be primary reason for the damages
occurred to the claimant.
 Foreseeability- Occurred damages should be foreseeable from the action committed by
the tortfeasor.
Concept of duty of care was established with the case of Donoghue V Stevenson. In this
case, defendant went to the cafe for the consumption of beer and ice-cream. In her beer, a
decomposed snail emerged due to which she suffered from injury (Macneil and Gudel, 2001). In
this case, Lord Atkin said all individuals should love their neighbor and should act accordingly to
prevent injury of the parties related to them. As a consequence, manufacturer of the beer has duty
to take care of consumers in their manufacturing process by making use of suitable ingredients.
Further, in negligence damages are provided for both economic losses and personal injury.
3 Vicarious liability
In accordance with the law of vicarious liability, other party is liable for the negligent
action committed by faulty party. Obligation is transferred from one party to another because of
the influential relationship between them (Collins, 2003). By considering this concept, business
is also held liable for the negligence of their employees. For the transfer of the obligation on
employer following conditions are required to satisfied-
 Tortfeasor must have status of employee
 Negligent action should be conducted in the employment duration.
Due to this aspect, employer is obliged to take care of health and safety issues in workplace. By
considering the provisions of Health and Safety Act, they will be able to prevent situation of
negligence (Macneil and Gudel, 2001). In addition to this, they should guide employees in
proper manner so they work in more responsible way.
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Case situations
In the given case situation Alan (employee of Norfolk farms) hired Mathew (a minor). Alan was
aware of the fact that he cannot appoint minor but he still do so by saying Mathew that they will
keep this fact as secret. After some days he injured Mathew by his negligent driving.
A) Mathew can sue Alan because Alan has obligation to drive in proper manner to prevent
situation of accident. Due to the negligence of Alan, Mathew got injured. As a consequence,
Alan is obliged to provide damages.
B) Norfolks farm can be held obliged in this situation because, they were not aware of the fact of
appointment of minor. It is responsibility to assure that minor cannot be appointed as employee.
In addition to this, they are also required to ensure that all the guidelines are satisfied by the
existing employees. However, they failed to do so thus they will be liable to provide damages for
the same.
TASK 4
1 Applicability of liability in negligence
Case situation
In the described scenario, Albert is planning to rent a flat from the Brad. For this purpose,
Brad made an application to the Charles (accountant of Albert) to provide the statement of his
financial position. Charles got confused by the name and he had provided information of other
client that their financial position is extremely good without opening the books. However, in
actual, financial position was very poor as he was heavily indebted (Sweet and Schneier, 2012).
On relying on the statement made by Charles, Brad had rented his flat. Afterwards, Albert
escaped from the flat by making arrear of several months.
Present case situation, is based on the provision of negligent misstatement. For this aspect
case of Ross V Caunters 1980 can be referred. In this case, receiver to a will launched a claim
against the firm of solicitors for failing to advise the testator that having a party witness the will
who had an interest in that will would invalidate it as she had relied on the negligent
misstatement. Claim made by beneficiary was held successful.
In this case, Brad can sue Charles for negligent misstatement. It is because, Charles had provided
recommendation regarding Brad in a formal business context as banker of Albert. In accordance
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with case reference of Similarly, Ross V Caunters 1980 an action for negligent misstatement will
be held successful due to presence of special relationship between author and injured party.
In this case, Charles has duty to provide accurate information regarding financial position
of the Albert so Brad can make proper decision. His careless attitude shows breach of duty
(Appleman, Appleman and Holmes, 2014). Due to this aspect, economic losses were occurred to
the claimant. As a consequence, he is liable to provide damages for the financial losses occurred
to Brad.
2 Applicability of vicarious liability in given situations
In situation where defendant is able to avail benefit of one of the following defense then they are
not entitled to provide damages for the injury- Volenti non fit injuria- In situation where claimant deliberately themselves in situation
where there is risk of injury. As a consequence they are not entitled to make claim for the
damages from the defendant. Contributory negligence- This defense is applicable in situation where party had
contributed to the negligent action (Murdoch and Hughes, 2002). Henceforth, they are
self responsible for their injury. Ex turpi causa- In accordance with this defence, negligent action committed by tortfeasor
is justified in nature thus they are not required to provide damages for the same to the
party.
Case situation A
In accordance with the described situation Graham is hired as a doorman by Macho Men
plc. It is a company, which owns chain of night clubs. One day a drunken customer was causing
damage to the property of club. Due to this aspect, Graham had ejected the customer from
damages however in this process his arm was broken.
In the described situation, Graham cannot be liable to provide damages for the act of
negligence. It is because, he is able to avail the defense of ex turpi Causa. In accordance with this
defense, none of the action of the claimant can be considered as unjust or immoral. It was his
duty to eject customer thus he cannot be held responsible to provide damages for the same
(Murdoch and Hughes, 2002). Due to absence of negligence, Graham's employer will also not be
held vicariously liable to provide damages for the same.
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By considering the second situation, defense will not be applied because in this clear
restriction was provided on manhandling troublesome customers by the management of the club.
In this situation, he is not entitled to interfere. As a consequence, Graham's employer will be held
responsible to provide damages for the same action. It is because; they are required to sure that
employees are not interfering in the duties which are not allotted to them.
Case situation B
According to the given case scenario, Carla is working as a courier for the Links Ltd. On
a day where there was work off she use the van of company to drop her friend Lucy to the
railway station. After this, she decided to deliver some parcels even it was not a working day for
her. While delivery, she negligently crashes into the car driven by Joe.
In the described scenario, Carla is liable to provide damages for the George's car. It is
because, she has duty to drive in proper manner in order to prevent situation of accident.
However, by his negligent driving he crashes the car of George. This aspect shows the breach of
duty. Due to his negligence, George has suffered from damages (Appleman, Appleman and
Holmes, 2014). In addition to this, damages occurred to George were foreseeable from the
negligent action committed by Carla.
In the given case study, Links Ltd cannot be held vicariously liable to provide damages to
the George. It is because, negligent action was occurred after the course of employment. As as
consequence she was not in control of the employer (Herring and Milosevic, 2001). By
considering this aspect employer cannot be held liable to provide damages for the negligent
action of Carla.
CONCLUSION
In accordance with the present study, it can be concluded that parties are obliged to act in
responsible manner by fulfilling their obligations and duties. In absence of contractual
obligation, tort law is applicable for guiding individuals to operate in fair manner. Henceforth,
parties should provide satisfactory performance else they will be liable to provide damages for
the injury of innocent party. Employers are required to monitor the actions of subordinates and
for complying guidelines of Health and Safety Act. In situation where, they are not able to do so
they will be held obliged to provide damages as per the provision of vicarious liability. Liability
in negligence can be relinquished if they are able to avail benefit of defense.
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