Vicarious Liability in Film Flops Case Study

The assignment content discusses the concept of vicarious liability in tort law, particularly in the context of a film flops case study. The summary highlights that for vicarious liability to be applied, there must be a breach of duty, foreseeability of injury, and causation between the staff member's actions and the injury sustained by Paul. Additionally, the assignment touches on contributory negligence, volenti non fit injuria, and ex turpi causa as defenses against vicarious liability.

ASPECTS OF
CONTRACT
1

Table of Contents
INTRODUCTION................................................................................................................................3
TASK 1 ................................................................................................................................................3
1.1 Essential elements required for formation of valid contract .....................................................3
1.2 Different types of contract ........................................................................................................4
1.3 Different forms of contractual terms .........................................................................................5
TASK 2 ................................................................................................................................................6
2.1 Essential elements of contract....................................................................................................6
2.2 Applying law on terms to the scenario ......................................................................................6
2.3 Evaluating remedies which are available to Mary ....................................................................7
TASK 3.................................................................................................................................................7
3.1 Contrast of liability in tort with contractual liability ................................................................7
3.2 Explain the nature of liability in negligence..............................................................................8
3.3 Explain how a business can be vicariously liable .....................................................................9
4.1 Applying elements of tort of negligence ...............................................................................10
4.2 Applying law on vicarious liability ........................................................................................10
CONCLUSION..................................................................................................................................10
REFERENCES...................................................................................................................................12
2

INTRODUCTION
Legal laws and regulations are introduced by government with the aim to reduce the level of
unfair transaction and this directly prevents organizations from indulging into unethical activities.
Further, it is beneficial for the entire commercial environment and safeguard interest of the weaker
party. Further, in this regard law of contract and negligence has been introduced by British
parliament (Gillies, 2004). Moreover, provisions present in this act provides description of standard
duties of parties which has to be necessarily considered at the time of carrying out business
operations. The present report being prepared totally focuses on describing the provisions so as to
provide suggestions to different parties as per the scenario given. Apart from this, aspects of
contract and negligence law has also been considered as per the cases provided.
TASK 1
1.1 Essential elements required for formation of valid contract
Contract is regarded as an legal agreement which is developed by two or more parties so as
to fulfil expectations of one another. Further, it may be possible that all the agreements are not
enforceable by law it is because of validity of essential elements. So, in accordance with the
provisions present in English law, an contract is said to be legal if following elements are present in
it which are as follows: Consideration: In every agreement it is must that consideration must be present which
represents mutual benefit of both the parties (Jennings, 2010). Further, consideration can be
in any form such as in monetary or non monetary one. Moreover, it is not necessary to be
arm length price but it may have some sort of value in the eyes of law. Offer and acceptance: Essential elements of a valid agreement is offer and acceptance
where offer is given by one party to another (Pharmaceutical Society of Great Britain v
Boots [1953]). Further, main stress is on accomplishing their consent for completion of the
overall performance. Generally acceptance is regarded as the consent which is given by
offerree in relation with the offer given by offeror. Moreover, it is necessary that offer must
be unconditional and in appropriate manner. Other elements: In every agreement it is necessary that parties must be capable enough to
enter into contractual relationship (Kelly and et.al., 2013). Moreover, aims of the contract
must be legal and this will prevent third party to claim for performance on contracting
parties.
 Intention: All the parties in agreement must enter into contract in order to fulfil promises
made by each other. Further, this element is regarded to be one of the most crucial part of
3

contract made by parties.
1.2 Different types of contract
Written contract They are the best kinds of
contracts where no confusion
arises relating to the terms and
clarity of a contract. They are
generally the best types of
contracts as they provide proof.
Example: Sale deed.
Oral contract It refers to a contract whose
terms are discussed orally but
still they can be enforced by
courts. It may be part written
and part oral (McKendrick,
2012). These contracts are
always prone to some risk
factor because of the difficulty
arising in proving the terms of a
contract as they lack written
proofs.
They are less impactful and
certain when compared to a
written contract. Some oral
contracts are even
unenforceable by law. It
involves maximum fraud and
risk. Example: Marital
settlement contracts.
Distance contract It is a kind of contract in which
the parties communicate or
negotiate through post,
telecommunication, emails,
click-wrap, etc. The condition
here is that the communication
must be given properly and on
time. In case of delayed
acceptance, the offer is lost.
Acceptance ,must be in the
manner stated while making an
offer.
It is equally efficient and
enforceable as any other
contract. The only difference is
non existence of parties at a
same place (Partington, 2013).
Example: Online shopping
Face-to-face contract Contracts where parties are It provides maximum clarity of
4

physically present. They can
meet physically and discuss the
terms of a contract in known as
face-to-face contracts (Rush,
and Ottley, 2006). In these
contracts parties are generally
present in the same area. Thus,
this results in formation of a
contract where all the terms and
conditions are written down and
signed by both the parties.
thoughts and ideas. One can
give counter offers and
negotiate to a large extent.
1.3 Different forms of contractual terms
Contractual terms can be regarded as standard guidelines which are necessary to be
compiled by the parties entering into contract at the time of performing obligations. Further, in
many conditions, contractual terms are not satisfied at all and in this situation parties are required to
pay for the damages or any other kind of loss suffered (Tomprou and Nikolaou, 2011). Details in
relation with different type of contracting terms have been described below:
Expressed terms
These terms are represented by the parties in the contract and they can be either in written or
oral form. Further, bifurcation of expressed are as follows: Warranties: Warranties are regarded as the ancillary contractual terms which directly shows
the obligation of the parties (Bettini v Gye 1876 QBD 183). In case when warranties are not
satisfied then party is liable to pay for damages. Conditions: They are considered as the core terms of the contract and are associated with
the main objectives. Further, it is must for parties to satisfy terms else they will be
responsible for breach of contract (Mermann, 2000). Innominate terms: Concept of innominate terms are introduced from the case of Hong
Kong Fir Shipping v Kawasaki Kisen Kaisha. These terms are neither regarded as condition
nor as warranty. Further, damages are provided to the party by undertaking the fact that
when innocent party is deprived from the advantage of contract or not in condition when
these terms are not satisfied at all.
Implied terms
These terms are provisions described by court where main stress is on providing effect to the
5

obvious intention of parties. Main aim of these terms is to deliver protection to the contracting
parties from unfair terms (Miller, 2011). Moreover, these terms are not expressly stated and they are
considered to be crucial part of the contract.
Exclusion clause
This clause is regarded to be the crucial part of unfair terms through which party in fault can
be provided protection in situation when performance is not up to the mark. These terms provides
base in the form of relief only in the case if they are supported by legal laws and introduced in
appropriate manner.
TASK 2
2.1 Essential elements of contract
In the case provided for purchasing television set Mary went to the departmental store and
selected as specific model for purchasing it. Further, she signed agreement which was written and it
was not read by her.
Essential elements of contract
In the scenario given valid offer was given by departmental store by providing agreement
deed and this offer was accepted by Mary after signing the same (Milner, 2011). Further, all the
parties have legal intention of entering into contractual relationship and obtained advantage of
mutual consideration. In case of departmental store consideration was payment but in case of Mary
it was television set. So, by considering this all the necessary elements are present and through this
it can be said that valid contract is present in between two parties.
2.2 Applying law on terms to the scenario
By undertaking the present scenario provided it has been identified that departmental store
has rendered two exclusion clauses with the help of clause such as 9 and 11. As per clause 9,
business enterprise will not accept any liability in relation with the damages of any faulty
commodity. On the other hand clauses 11 imposes limitations on the liability of personal injury.
Further, in accordance with provisions of unfair contract term act 1977, exclusion clauses
are acceptable if they are directly supported by legislatory aspects. Apart from this, Clause 11 is not
said to be acceptable in this aspect (Rosly, 2010). It is due to the presence of reason that Sales of
goods act obligation on seller to deliver qualitative commodity with the aim to decrease possibility
of injury. Further, similar responsibility are imposed by the provision of health and safety act along
with consumer law. Apart from this, with the help of legislatory feature it has been determined that
excluson clause by departmental store is not at all valid. It is due to the presence of reason that cited
exclusion clause is imposing restriction on the liability of personal injury which is not at all
acceptable.
6

2.3 Evaluating remedies which are available to Mary
As per the case scenario provided, explosion took place in evening time when May was
turning on television set. Further, after this incident she suffered from burns which were severe at
her arms. Moreover, she was not at all able to work for three weeks and she took treatment for the
same. Moreover, due to this incident she was not able to work which lead to loss of income.
Due to severe injuries she claimed to departmental store to replace the television set which
harmed her. Further, Mary also claimed for financial compensation for the injuries occurred (Rush
and Ottley, 2006). By undertaking the reference of exclusion clause it has been identified that both
the exclusion clause are not valid at all and this they will undertaken for relief for the departmental
stores. Due to presence of consequences, Mary is allowed to avail for the remedies which have been
described above.
TASK 3
3.1 Contrast of liability in tort with contractual liability
Provision of liability in negligence along with contract has been developed with the main
aim to provide compensation to the party which is innocent for damages occurred when other party
is in fault. Further, provisions associated with the tort liability and contract are considered under
aspect of civil law (Desai, 2008). Apart from this, both the liabilities present are having similar
attention where main focus is on reducing the level of injury of parties. On the other hand, large
number of differences are present in between provisions of these obligations. All the basic
differences are described below:
Relationship between parties: In contract, parties develop obligations at their mutual will. In this
regard, they enter into relationship which is enforceable with the aim to fulfil terms and conditions
associated with the contract. Further, in tort relationship is imposed by law as there is no direct
relationship present between defendant and claimant.
Reason of occurrence: Liability in tort is enforceable when parties present in the contract are not at
all able to take care of their standard duty and due to this reason injury takes place to the party
which is innocent (Rush and Ottley, 2006). On the other hand, contractual liability takes place when
parties in the contract are not at all able to provide satisfactory performance as per the terms and
condition of the contract.
Influence on aggrieved party: One of the ultimate aim of contractual obligation is to bring claimant
in a situation where one party has given satisfactory performance. Further, in case of tort damages
are delivered to claimant in a position negligent actions are not at all performed by parties.
Basis of damage: In absence of contractual obligation, damages are given to the party by
undertaking breach of condition and warranty along with contractual deed. Further, no such pre
7

determined deed is present for providing injury and due to this basic reason injury of party is
undertaken for providing damages for the loss suffered (Gillies, 2004).
Case study: In the case of White & Carter (Councils) Ltd v McGregor damages were provided to
the suffered party as per their contractual deed and the contract was existing. Whereas in case of
Donoghue V Stevenson the damages were provided to the party as per situation which was
enforceable by law. Therefore, both the cases differ from each other where in former one damages
were given as per deed but in later one which relies on situation.
3.2 Explain the nature of liability in negligence
Negligence is regarded as the tortuous act due to which damages takes place which badly
affects the party who is innocent. Further, acts which are tortuous are committed and in this
situation parties are not at all able to take care of their standard obligations (Rosly, 2010).
Moreover, to make successful claim for the recovery of damages which took place due to act of
negligence different principles are present which needs to be satisfied by claimant and they are as
follows (Description of these principles will be supported with the case of Donoghue V Stevenson)-:
Breach of duty: Principle of breach of duty can be satisfied easily in condition when it is not
possible for defendant to take care of general duties and negligent act takes place. Further, in the
situation provided, one decomposed snail occurred from the drink which was ordered by the
Claimant. In this situation, drink was offered in the opaque bottle and due to this reason internal
components were not visible at all. So, this act highlights breach of duty on the part of defendant
(Rush and Ottley, 2006).
Duty of care: As per the negligence law, it s the first and foremost duty of defendant to take care of
their actions with the aim to decrease the chances of injury of claimant. Further, this factor has been
undertaken after considering the principle of neighbour love. As per this principle, individual should
love related parties or its neighbour by preventing act of omission along with carelessness in their
action. In the case provided defendant who is Steveson was engaged in manufacturing of beer.
Therefore, he is responsible to look after all the operating tasks in order to provide better
commodities to the customers (Desai, 2008).
Forseeability: Principle of proximity relies on the approach of proximity. Further, as per this
principle, injury caused to the claimant must be computed or likely to occur from the negligent act
of defendant (Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428). In the case provided,
injury caused to target market is forseeable from the negligent act of manufacturer.
Causation: It is one of the most significant principle of negligence which states that their should be
injury to the claimant from the act which is negligent and caused by action of defendant. Further, it
is necessary that main reason of injury must be totous actions in which contribution of claimant is
8

nil. Further, in the given case Claimant named Donoghue has to undergo severe injury which was
caused due to the negligent act of Stevenson.
In the case provided of Donoghue V Stevenon all the necessary principles present were
satisfied and due to this reason Donoghue claim was considered to be successful and she was able
to claim for damages for the injury which took place. Apart from this the present case is regarded as
leading precedent for the applicability of concept of duty of care.
3.3 Explain how a business can be vicariously liable
Vicariously liability is regarded as the form of negligence in which responsibility is impose
on other party due to the presence of negligent act which has been committed by tortfeasor. Transfer
of such duty from one individual to another is due to presence of special relationship between the
parties in which liable is required to exercise care as a reasonably prudent person (Employer
Vicarious Liability, 2013). One of the main example of such kind of relationship is parent and child,
driver of the vehicle and owner etc.
As per the provisions present in the vicarious liability employer is responsible to take care of
all the actions of their staff members otherwise they will be vicariously liable to provide damages to
the party who has been injured. Apart from this, to transfer obligation on employer who has
committed negligent action of employee different conditions are required to be transferred which
are as follows:
 It is required for staff members to carry out negligent action during the course of
employment which considers during the time period when employment is present and rights
and duties are provided to them. So, by undertaking this aspect it can be said that vicarious
liability will not be shared if staff members act beyond the employment or against the
authorities (Hollingsworth, 2014).
 Negligent party must know about the status of staff member. It is due to the reason that self
employed individuals are not at all controlled by employer and they will not be vicariously
liable for the action committed which is negligent. Apart from this status of staff member
will not be influenced by contract which is part time or full time.
Film flops case study
In the scenario provided it has been given that paul has purchased ticket from local cinema.
Before starting of film he decided to buy popcorn. By mistake staff member of film flop poured hot
coffee on arm of Paul and he was badly injured due to this. After occurrence of this incident
manager of film flop was called and it was identified that staff member was intoxicated.
As per the case firm will be held vicariously liable for the action of staff members due to
presence of duty of care that staff members must not consume alcohol at the time when they are on
9

duty. Further, appropriate policies within the workplace must be developed in which distance must
be maintained in between staff members and customers of enterprise through which it is possible to
avoid such kind of events. Considering the present scenario top authorities of film flops were not
able to take care of aspects which are described above. Therefore, due to this reason they are
vicariously liable to provide damages to the paul.
4.1 Applying elements of tort of negligence
Negligent principles applied in the given case scenario are as follows: Breach of duty: During the working hours staff members were intoxicated and this is
showing breach of duty by employee. Duty of care: Staff member of film flops has duty to act in proper manner so as to provide
safe environment to visitors (Gillies, 2004). Forseeability: Injury which took place to paul was forseeable from the negligent action of
staff members
 Causation: Due to negligent act of staff member Paul was injured in the case provided
Therefore, in the case provided all the principles of negligence are satisfied and due to this
reason staff member is liable to pay damages to paul for the injury (Hemraj, 2003).
4.2 Applying law on vicarious liability
Individual will not be responsible to pay for damages despite of presence of negligent action
when they are able to take following advantages: Contributory negligence: All the provisions associated with defence of contributory
negligence are considered in condition where both defendant along with claimant are present
in negligent action. Further, by apllying this defence, Claimant is not entitled to make cliam
for damages for the injury (Tomprou and Nikolaou, 2011). Volenti non fit injuria: Advantage of this defence is provided to the defendant in condition
when claimant on its own put himself in situation which leads to risk of injury. Inspite of
this party must be well aware about risk of injury (O'Connell v Jackson [1971] 3 WLR 463).
 Ex turpi causa: As per provision of this defence defendant is not responsible for rendering
damages if their actions are not at all faulty (Harpwood, 2009).
Considering the present scenario Fim flops can take advantage of Ex turpi causa as at the
time of incident staff member was intoxicated and was not in position to be controlled by employer.
CONCLUSION
From the above study it can be concluded that parties are required to carry out their duties in
appropriate manner otherwise they will have to pay for damages as a compensation for injury.
Further in case when contractual relationship is not present then parties must take care of their
10

standard duty so as to prevent possibility of injury. Moreover, it is the first and foremost duty of
employers to take care of the actions of the staff members so that vicarious liability cannot be
imposed on them.
11

REFERENCES
Books and Journals
Desai, N., 2008. Checking correctness of business contracts via commitments. In Proceedings of
the 7th international joint conference on Autonomous agents and multiagent systems. 2. pp.
787-794.
Gillies, P., 2004. Business Law. Federation Press.
Harpwood, H. V., 2009. Modern tort law. Routledge.
Hemraj, B. M., 2003. The emergence of solicitors’ tortious liability and the award of damages.
Journal of Financial Crime. 10 (4). pp.316 – 330.
Jennings, M., 2010. Business: it’s Legal. Cengage
Kelly, D. and et.al., 2013. Business Law. Taylor & Francis.
McKendrick, E., 2012. Contract Law; Text, Cases, and Materials. Oxford University Press.
Mermann, R., 2000. Good Faith in European Contract Law. Cambridge University Press.
Miller, R., 2011. Modern Principles of Business Law. Cengage.
Milner, A., 2011. Contract interpretation: potential for relaxing the exclusionary rule. International
Journal of Law in the Built Environment. 3(3). pp. 205-221.
Partington, M., 2013. The psychological contract and implied contractual terms: Synchronous or
asynchronous models?. International Journal of Law and Management. 53(1). pp.32-50.
Rosly, A. S., 2010. Shariah parameters reconsidered. International Journal of Islamic and Middle
Eastern Finance and Management. 3(2). pp.132-146.
Rush, J. and Ottley, M., 2006. Business Law. Cengage.
Tomprou, M. and Nikolaou, I., 2011. A model of psychological contract creation upon
organizational entry. Career Development International. 16(4). pp.342–363.
Online
Employer Vicarious Liability. 2013. [Online]. Available through:
<http://www.oxbridgenotes.co.uk/notes/oxbridge/2013/tort-law-notes/samples/employer-
vicarious-liability>. [Accessed on 3rd Dec 2015].
Hollingsworth, G., 2014. Vicarious liability lawyers. [Online]. Available through:
<http://www.legalmatch.com/law-library/article/vicarious-liability-lawyers.html> [Accessed
on 3rd Dec 2015].
12