Vicarious Liability and Tort Law

This assignment examines the concept of vicarious liability, focusing on its application in various scenarios. It analyzes a case study involving a head chef assaulting a dishwasher, discussing how the hotel could be held liable under vicarious liability. The assignment also explores other examples, such as a chauffeur company being held responsible for an employee's drunk driving accident. It highlights the legal principles of tort law and their relevance to these situations.

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Table of contents
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Introduction
The purpose of this case study is to recognize and identify the different aspects of
contract and negligence in business. In this age of modernization, people sometimes refrain
from vocational agreements, which have seldom paved the way for written contracts. Both the
oral and written contracts provide a proper legalised business transactions with two or more
parties and it resolves any probability for future disputes.
In the following case studies, the various aspects of the legal court proceedings and the
cases linked with contract and negligence are discussed vividly. In addition to that, the below
mentioned case studies also forecast a detailed understanding of the myriad laws of contract and
the proper tort and skill that are applicable in lieu to it, especially in business predicaments.
LO 1
1. Explaining of the formation of essential elements required for contract with
examples (AC 1.1)
There are four elements required for a valid contract. Those are:
Offer: Before making a proposal legalised, it should be followed a clearly stated offer.
As for example, it may be any quotation by sub-contractor to main contractor and an offer to
lease. An offer is likely to lapse if acceptance time expires; offer is withdrawn before it is
accepted.
Acceptance: Acceptance is caused when any offer is accepted without any terms and
conditions. Proposal of any new terms makes it a counter offer.
Intention: In case of a commercial transaction, the parties entering a contract are guided
by some legislation. If one party has signed a contract about any business, then he can sue the
opposite party if the contractual provisions are not being fulfilled. The presumption can be
rejected if both the parties express their reluctance in making any legally binding contract. The
word subject to contract is often printed on document.
For example, as noticed in Taylor V Cladwell, 1982, this legally ensures that the
document is not contractually signed but all its contents will be bound by a subsequent contract.
In this case, party acting the “subject to contract” can withdraw case at any time before
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conclusion made for the contract. The dispute and proof in which the intention was to build a
contract rest the party who rely on the contract (Cooter and Landa 2016)
Consideration: The offer placed should have value to be considered for example, one
party's promise to do something, in return of any action of other party. It can be called as an
agreed price for other party’s promise. Although, it does not have any monetary value, it can be
any kind do deed as for example promise to do something or not to do.
2. Considering the effect of various types of contract (AC 1.2- M1)
Various types of contract are categorized as follows.
Types of contracts based on formation:
Contracts under seal: a contract was only considered valid if it is enforced as a legal
document with proper stamp and seal. The seal symbolizes to be the acceptance proof of legal
effect along with its consequences. Courts recognise informal contracts including implied
contracts, which have diminished the importance of employment of formal contracts under seal
(Andrews, 2016).
Express contracts: it includes cases where terms are being stated by parties. The terms
can be both in verbal or nonverbal forms while making the contract. There is a well-defined oral
or written offer which are accepted by the offered explicitly demonstrating consenting its terms.
Implied Contracts: although contracts that are implied in fact and contracts implied in
law are both called implied contracts, a true implied contract consists of obligations arising from
a mutual
Agreement and intend to promise which have not been expressed in words. It is
misleading to label as an implied contract one that is implied in law because a contract implied
in law lacks the requisites of a true contract (Perry, 2016). The term quasi contract is a more
accurate designation of contracts implied in law. Implied contracts are binding as express
contracts. An implied contract depends on substance for its existence; therefore, for an implied
contract to arise there must be some act or conduct of a party, in order for them to be bound
(Perry, 2016).
Section 68: when the requirements are supplied
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Types of contracts based on Execution:
Executed and Executor Contracts: an Executed contract is one in which nothing
remains to be done by other party. The phrase is to a certain extent, a misnomer because the
complication of performances by parties signifies that a contract no longer exists. An executor
contract is one in which some future act or obligation remains to be performed per its terms.
Types of contracts on the nature of consideration
Bilateral contracts: the exchange of mutual, reciprocal promises between entities that
entails the performance of an act, or forbearance from the performance of an act, with respect to
each party, is a Bilateral Contract. A bilateral contract is sometimes called a two-sided contract
because the two promises that constitute it (InBrief.co.uk, 2017). The promise that one party
makes constitutes sufficient consideration for promise made by the other party.
Unilateral contract: if only the consideration is moved in single direction after contract.
On the basis of validity
Valid: contracts enforceable in a court of law are termed as valid
3. Evaluate the various terms of contract (AC 1.3-M2)
Various terms of business contracts are as follows
Rights: right is another very common term of contract, which specifies the rights to
which party is entitled. For example, if two parties not approve the quality of work performed
band compensation involved, the contract stipulates a third party arbitrator used to settle dispute.
In some cases, the contract also indicates each party's right to sue.
Dates: the terms of a contract specify relevant dates including date of completion of
project, date of starting and completion of an employment.
Payment: the contractual terms indicate the amount and method of payment. For
example, the contract might stipulate that complete payment is required after completion of any
project or increments on completion of each phase of project. This term also specifies if any late
fees are involved in case of any task (InBrief.co.uk, 2017).
Confidentiality: a contract may approve confidentiality of parties harming each other.
Duties: A business contract will spell out some specific tasks completed by all the parties
involved in a contract. Examples include contract duties including distributor obligation to take
an attempt to sell a product to a third party. The product manufacturer compensates the
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distributor based upon his duties. Such duties also include the terms of any project, which
include duties, which are not permitted.
Conditions: The conditions refer to the midpoint of the entire contract on the basis of which
contract is made. It mentions various terms that are applied in the contract for binding each
concerned party.
Warranties: The warranty mentions condition so that an individual can give the assurance to
another party about status of product and services. In case of breaching warranty, the suffered
party can take compensation for the losses.
In nominate terms: The in nominate terms cannot be placed under either warranty or condition.
This term attempts to make a detailed investigation on the level of harm that is caused to the
plaintiff as a result of aggrieved party.
LO 2
4. Application of the contract elements in this business scene (AC 2.1-D2)
The following elements are applied as per the scenario provided.
Acceptance: the determination of a valid acceptance is governed by whether a promise
or an act by the offeree was the bargained for price. In the provided case study, it is entire fault
of the shopkeeper as he forgot to remove the display. Since the acceptance of unilateral contract
requires an act rather than a promise, it is unnecessary to furnish a notice of intended
performance unless the offeror requested it.
If, however the offeror has reason to believe that the offeror will not learn of the
acceptance with reasonable promptness, the duty of offeror is discharged unless the offeree
makes a reasonable attempt to give a notice; the offeror learns of performance or the offer
specifies the performances or indicates if no notice required. So, unless the shopkeeper tries to
assure the customer for a new copy, duties of the customer ends here.
Consideration: The offer placed should have value to be considered for example, one
party's promise to do something in return of any action of other party. It can be called as an
agreed price for other party’s promise. Although, it does not have any monetary value, it can be
any kind do deed as for example promise to do something or not to do. As discussed before
unless any counter offer is made by Todor to his second customer about reordering the book, the
intention of the buyer is not being fulfilled
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In the present scenario, the case of 'invitation to treat' is followed according to which, it
is clear that shopkeeper kept the book in shelf for display which makes an offer for the product
to be sold for all. While, the offeree who does not have knowledge of its selling already to some
one else is not shopkeeper's fault. However, there is no contract made between both parties as
their was no fulfilment of elements of contract.
5. Useful implementation of the legal proceedings in
a. Condition: in any provision or applying any contract for a consumer sale and
purporting to exclude or restrict the operation of all or any of the provisions of sections, 18, 19
and 20. (section 19 (4) expected) or any liability of the seller for a breach of a condition or
warranty implied by any provision of those sections is void as in case of Sale of Goods Act,
1923.
An express warranty or condition in a contract for consumer sale does not make a
condition negative as to merchantable quality implied by this Act. merchantable quality goods
are subject of a contract for a consumer sale are not of merchantable quality if they are not as fit
for the purpose for which goods of that kind are commonly bought as a reasonable to expect
having regard to their price to any description applied to them by the seller and to all other
circumstances. (InBrief.co.uk, 2017). The conditions of a contract makes various terms in
contract that are necessary to be complied. Law explains that breach of such condition may
result into the status of contract void ab initio.
b. Warranty: an express warranty can be created in one of the three ways. Through
affirmation made by vendor to purchaser related to goods, becoming part of bargain, by a by
way of a description of the goods, which is made part of the basis of the bargain by way of a
description of the goods which is made part of the basis of bargain. An express warranty can be
words spoken during negotiations or written into sales contract. These expresses the minor terms
of contract that must be complied but in case of breach, only damages can be recovered in the
form of compensation. The parties cannot terminate or cancel the contract.
c. In nominate term (AC 2.2-M3)
It is a basic contract law that determines whether a particular contractual term is a condition or
an in nominate term, the court must look to the intentions of parties as manifested by the entire
agreement and surrounding circumstances. In case of in nominate terms, the court looks into the
matter if breach of contract has resulted into major losses for suffered party and deprived of all
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the benefits. If the plaintiff has deprived of whole benefits, in such case, contract may be put to
the end.
6. Discussing the effect of various terms of contract in relation to the
mentioned situation (AC 2.3-D1)
Rights: right is another very common term of contract, which specifies the rights to
which party is entitled. For example, if two parties not approve the quality of work performed
band compensation involved, the contract stipulates a third-party arbitrator used to settle dispute.
In some cases, the contract also indicates each party's right to sue. In the provided case study, the
second customer holds every right to place order for the book as it was displayed. Being the
seller the shopkeeper is entitled to answer all the questions.
Dates: the terms of a contract specify relevant dates including date of completion of
project, date of starting and completion of an employment. It was fault of the shopkeeper not to
remove the display after a sufficient time has lapsed sell of the book.
Payment: the contractual terms indicate the amount and method of payment. For
example, the contract might stipulate that complete payment is required after completion of any
project or increments on completion of each phase of project. This term also specifies if any late
fees are involved in case of any task. As for the case study, it is relevant that the book has
already been sold and the seller had made monetary transactions (Perry, 2016).
The mentioned case is related with application of exception clause which makes the
liability of a person limited which may raise due to any negligence or non performance of the
act. In present case, the clause is based on valid evidence as it is already mentioned on the ticket.
Thus, the claim for compensation cannot be made as the as ticket has mentioned the exemption
clause which was not read by John because of his negligence.
LO 3
7. Differentiating between tort liability and contractual liability (AC 3.1)
The main difference between tort liability and contractual liability is the type and the
nature of duty or work force. Per Antieau (2015), the law or the liability of tort is a part of the
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British common law, which has been in existence since ancient times. In other words, the tort
liability can be defined as a breach of duty or work primarily amended by law. A tort is a type of
action in which the claimant is injured in any manner and the plaintiff therefore can demand for
any type of damages from the accused.
In the tort liabilities, the duties and the work that are constituted in it are fixed by law or
legal proceedings. There is also a historical ascent behind the tort liability, as it is originated
from the writ of trespass. In addition to that, the law of tort is very much fixed and stagnant in
structure. There are myriad types of international torts such as defamation, battery etc.
One party on behalf of another party on the other hand, defines the contractual liability as
an acceptance of liability. Greene (2016) stated that it is mainly constituted under the general
liability policy. Normally the contractual liability is voluntarily undertaken unlike the tort
liability, which is imposed on the people by the law.
This means that the people are given an alternative as to whether they can freely enter the
legal contracts or whether they would be bound by obligations. In addition to that, a person
involving in the contractual liability is owes only to the party mentioned in the contract. On the
other hand, the tort liability is owing to everyone as it pertains to all. Generally, contractual
liability is stern and on the other hand, tort liability is based on fault.
There are myriad cases related to the contractual liability in the legal books that very
much depict the authenticity of the definition. One such case was the long trial between the
Tesco Stores Limited vs. the Chiltern Railway as mentioned by (Petersson, 2015). In that case,
the while constructing a building on 30th June 2005, one part of the tunnel collapsed and the
debris remained there for almost 51 days.
Although none was harmed in the process or during the occurrence of the incident, the
railway track of Chiltern Railway was halted for almost 51 days. This proved to be a huge
economic loss for the Chiltern Railway Company. In lieu to this accident, the Chiltern Railway
sued the Tesco Stores Limited and demanded compensation on the grounds of obstruction of
their business transactions. The Chiltern Railway was proven in favour of the case and they did
receive compensation from the Tesco Limited.
8. Constituting the liability nature in Negligence (AC 3.2- M1)
The liability of negligence refers to the term that the person or the institution is responsible
for the any outcome that it has caused in the society. Geisser (2015) opines that normally the
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society or any organization and company wants it people to perform any type of duties without
any barrier. In legal proceedings, it is termed as implementing strict obligation without any
flaws.
Nevertheless, sometimes the various precarious actions of some persons result in the
vociferous results in the society. Sometimes this inadvertent action of the members of the law or
the society is termed as a violation of the law or criminal activity. If any person or group of
persons or any institution is personally responsible for any harm, it is termed as physical injury
or civil violation. There are mainly three types of negligence, which are:
 Tort negligence- There is mainly four type of tort negligence that is considered to viable.
Firstly, the defendant must have an obligation to either the concerned plaintiff or the
general mass. For example, the work of the sweeper is to clean the area in which he/she
works. Secondly, the accused has failed to perform its duty in some manner. Thirdly, the
plaintiff has suffered injury from the defendant, for e.g. a person fell on the pavement
due to the presence of the spillage of oil. Fourthly and lastly, another judgmental person
has given the verdict the cause of the injury of the plaintiff is due to the negligence of the
accused.
 Criminal negligence- in this case, when a person is charged with criminal offence, the
accused normally mentions that it has been performed inadvertently. The prosecutor
alleges that the defendant acted in such manner as because the plaintiff instigated to do
so, or the alleged has forced to perform such type of action. For example: In the
California, drunk murder case of 2006, the person who was drunk was repeatedly
insulted and taunted by his friend as the former got sacked and was divorced on that
week. Enraged, the drunken person hit his friend with the bottle who collapsed on the
ground. Nevertheless, the person was charged with the murder was punished in the case.
 Defence against negligence- There are myriad legal procedures that are being
formulated and rightfully to act against civil negligence. Sometimes the civilians try to
take advantage of the laws that are set for the defence against the negligence. For
example: in a parking spot if two cars collide against each other, then the judge will see
as which driver’s fault has been the maximum. Frankand and Colarusso (2016), opines
that the driver will the maximum mistake and fault must pay the required compensation
to the other driver if the latter sues the former.
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 Duty of care: Under this, it is necessary to show that the aggrieved party was under the
responsibility of performing the duty of care and failing to which has resulted into
necessary action. For instance, The case of Donoghue v. Stevenson case is the example
of duty of care where the restaurant was in duty of care to provide hygienic and right
product, but in the drink there was a snail due to which Mrs. Donoghue fell ill.
 Breach of duty: This law results into breach of contract as a result of any loss that has
been done by a party because of not acting in a sensible manner. This takes place in the
case if defendant fails to perform the duty as required by the laws and standards. The
case of Vaughen v Menlove show it as the haystack of defendant caught fire for which
he was warned many times. Yet he did not pay required attention for which he is liable
for the breach of duty.
9. Explanation about the vicarious liability of the business (AC 3.3- M3)
The vicarious liability refers to the circumstance where a person or the group of persons
are wrongfully punished, instead of the concerned people or the group of people. In other words,
when someone is held responsible for the work and the actions of the other individual or a flock
of persons, then it is termed as vicarious liability.
The vicarious liability takes place when a person is made responsible for the acts which
have been executed by him on the behalf of some other person. Thus, this act explains that a
person who is acting on behalf of other person who is in control, the controlling party would be
liable for any wrongful act. In case of Valles vs. Albert Einstein Medical centre, the hospital
was responsible for the damages caused to suffered party as the doctor was in control of hospital.
Price (2013) states that the vicarious liability also arises in an organization when a certain
person is taken upper hand because of the tort of the others. In a workplace, any novice employer
is usually harassed in a fun manner which is sometimes termed as a welcome mat for them. In
addition to this, sometimes the old employees irrespective of their size, sex, colour and status are
vexed and discriminated often.
These employees if make any type of complain are inversely scolded by the management
authority, this phenomenon is termed as vicarious liability. If the actions of the accused are not
defined by the reasonable steps, then it is not accepted a legal offending. The reasonable steps
are defined in the legislature, as the steps of one big company may be different from that of the
small company.
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McLaren (2014) mentions that the vicarious liability legislative policies are applicable in
those situations where the putative harassment and the discrimination is based on employment of
an individual. An employer can apply for the misconduct portrayed on them to the authority or
pertain to the legislative actions of the vicarious liability only when it has suffered negligence
and insult based on the employment section. Sometimes the gender imbalances in the workplace
also enhance the probability of the legislative policies of the vicarious liability.
LO 4
10. Application of the tort elements of negligence and defences in these
business predicaments (AC 4.1- D2)
In this case, it is seen that David is driving at 35 mph at a four-lane street where 25 mph
is the speed limit. Suddenly a nine-year-old Kevin runs into the street chasing the ball. This is
the first negligence of the part of the driver. He is deliberately ignoring the traffic rules and over
speeding to some extent at a local area where there are kids playing.
The ignorance from the child cannot be considered as negligence as the child is too
young to know the traffic rules and the traffic etiquettes. On seeing the child come suddenly in
front of the car, David skews the mobile car into the other direction and in the process, hits the
telephone pole that is being standing erect on the lane. This accident caused severe and
permanent injury to the driver, David.
On the other hand, the due to the harsh hitting of the car, the pole broke down and it hit
the nine-year-old boy Kevin, who also suffered from serious and permanent injuries. The
negligence is on the part of the driver, David who is careless to enough into drive in 10 miles
more than the mentioned speed limit in an area where the children are playing. In addition to
that, the telephone company Telco can also be sued as they erected the telephone pole adjacent
to the ground. In this case, the civil violation and the tort violation of the part of the driver can be
considered as viable.
The case of Lister vs. Hesley Hall ltd. Where the sexual assault was done with suffered
part, the employer is vicariously liable for the wrong deeds of its employees.
11. Implementation of the elements of liability in this situation (AC 4.2- D3)
In this case study, the head chef of the Regent hotel Colin is seen to be enraged every
time with the dishwasher Roger. They seem to be remaining out of the good books of one
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another and sometimes they get irritated with each other. In one such instance of heated
conversation, the dishwasher boy Roger gets unconscious because of the hitting on the head by a
frying pan by the head chef Colin.
In spite, all this vociferous actions, Roger refuses to go to the hospital for treatment. In
this case, Roger can bring claim in the vicarious liability against Regent Hotel in lieu of the
actions of the head chef Colin. The head chef has violated all the norms of employee relation and
has undertaken the view of physical violence. He has caused a physical injury to Roger, which is
inexcusable in the employment sector or the workplace environment. It is imperative for Roger
to bring proper legal claim in the vicarious liability against Regent Hotel for the actions of the
head chef Colin. If this incident is viewed from another angle, then it portrays a different story.
As every action has an equal and opposite reaction, in this case Roger must have insulted or
irritated Colin to an extreme extent. This might cause Colin to succumb to such violence
measures. It will up to the court to decide whose actions are more severe and they would be
punished accordingly.
For instance, the driver of a chauffeur company was made responsible for the accident
caused due to drink and drive. In this case, the company was made liable for the compensation to
be paid to the suffered party.
Conclusion
The legal decision is framed per certain guidelines in order to impose a fair judgement.
When any kind of offer is placed with monetary value or any activities in exchange of it, it is
known as terms. There are various kinds of terms defined legally. Right is another very common
term of contract which specifies the rights to which party is entitled.
For example, if two parties not approve the quality of work performed band
compensation involved, the contract stipulates a third party arbitrator used to settle dispute. In
some cases, the contract also indicates each party's right to sue. The judgement is passed so that
no biasness is caused to any of the parties.
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