Employer's Liability for Employee's Negligent Actions: A Critical Analysis

The assignment content discusses the concept of negligence and vicarious liability in a case scenario involving Paul, an employee who was injured at work. The summary explains that Paul's employer, Smith & Co., is vicariously liable for Paul's injury because they failed to provide a safe working environment. This failure can be attributed to the company's breach of duty, which is one of the essential elements of negligence. The assignment also highlights that Smith & Co. may have available defences to avoid liability, such as contributory negligence or assumption of risk.

ACNB

TABLE OF CONTENTS
Introduction......................................................................................................................................3
Conclusion.......................................................................................................................................3
References........................................................................................................................................4
2

INTRODUCTION
Legislation is developed to maintain decorum in the society and for the prevention of
unfair conduct. Contract and negligence law is part of the civil law. Objective of this law is to
describe standard obligations of parties and to develop control their actions for the assurance of
fairness (Collins, 2003). Present study highlights provisions of contract and tort law in order to
provide justified recommendations to the given case scenarios. First part of report will include
description of essential elements of contract law along with its significance. Further, description
will be provided regarding key contractual and types of contract. In the second part of report,
negligence law will be discussed through its principles and defences.
TASK 1
1.1 Importance of essential elements of valid contract
Contract is an enforceable agreement between two or more parties for the completion of
stated promises. All agreements do not have legal enforceability due to provision of essential
elements of contract. An agreement is considered to be legally enforceable if following elements
are present in it:
 Offer- It can be termed as promise made by one party in exchange of performance given
by another party. Offer must be certain and lawful. However, proposal without intention
is considered to be invitation to treat instead of offer (Giliker, 2010). In accordance with
the court decision of case Pharmaceutical Society of Great Britain v Boots [1953] display
of goods does depict offer as shopkeeper is providing invitation to customer to provide
offer. In following situation offer is considered to be terminated:
◦ Revocation made by offeror in reasonable time period
◦ Offerree had not provided acceptance in reasonable time
◦ Counter offer is given by offerree
◦ Party is not in position for the completion of performance
◦ Proposed performance in the offer is not feasible
 Acceptance: Acceptance is said to be consent given by the party on the provided offer. In
accordance with the provisions of English law, acceptance can only be provided to the
aspect that is offered. Due to this factor, conditional or modified acceptance is not said to
3

be valid and it is treated as counter offer (McKendrick, 2012). Acceptance must be
communicated to the party by whom offer is provided.
 Consideration: According to the contract law, consideration is benefit provided to the
contracting parties in against of performance provided by them. It can be in monetary or
non monetary terms. However, it must have some value in eyes of law but it is not
required to be fair. It is because, court of law is not interested in bargaining capacities.
 Intention: Parties entering into contract must have intention to create legal obligation for
the fulfilment of promises made by them. This element is not required to be expressly
stated as it is assumed by the court of law (Nystén-Haarala, 2010). By considering this
aspect, legal enforceability is not assumed in the agreement created on the basis of love
and affection.
In addition to above described elements, parties must be in capacity to create contract.
Further, objective of agreement must be lawful and supported by free consent of parties.
1.2 Explanation of different types of contract
Parties entering into contract are entitled to make selection of suitable form of contract in
order to make their promise legal enforceable (Austen-Baker, 2011). Parties are required to
select appropriate form of contract as each form has different impact on the contractual
relationship of parties. Explanation of different types of contract and its impact is as follows:
Verbal contract
These contractual agreements are informal in nature as terms are described in oral
manner. Verbal contracts are formed on the basis of trust and faith. In situation of dispute in
these contracts, court of law make interpretation of situation instead of considering actual deed.
It is because; original contractual terms are not available (Nysten-Haarala, Lee and Lehto, 2010).
Example of verbal contract is purchase of footwear from local shop by customer.
Distance contract
Distance contract is selected by parties in situation where all the contracting parties are
not present at common place. Due to this aspect, contractual terms are determined on the basis of
mail or telephonic communications. In these contracts, validity is assessed through applicability
of postal rule (Mote, 2013). Further, contracting parties are required to comply norms of distance
selling regulations.
4

Written contract
Written contract is most formal form of contract in which deed is prepared by the
contracting parties in order to described terms and conditions. This deed is considered as
evidence in situation of dispute (Partington, 2013). Furthermore, damages to the injured parties
are provided by considering this deed only.
1.3 Description of different forms of contractual terms
Contractual terms can be defined as provisions inserted to describe obligations of parties
in order to assure that fair and satisfactory performance is provided by them. Description of
different forms of contractual terms is as follows:
Expressed terms
Expressed terms are incorporated in the contractual deed by the mutual consent of the
parties. In these terms, description of requirements of parties is provided which is required to be
satisfied through their performance. Further, bifurcation of expressed terms is as follows: Conditions- These are the primary stipulations of the contract as it is directly linked to the
core objective (Collins, 2003). In situation where, conditions of the contract are not
satisfied then innocent party is in position for termination of contract and along with this
they can claim for damages. Warranties- These are ancillary stipulations of the contract which provides specification
to the obligation of parties. If these terms are not satisfied by the performance, then
aggrieved is only entitled for damages (DiMatteo, 2012). Innominate terms- Provision of innominate term is applied in situation where contractual
terms cannot be bifurcated into conditions and warranties. As per this approach, injured
party is in position for the termination of contract only if they are not able to take
complete benefit (Emerson, 2009).
Implied terms
Implied terms are described by legislation and custom in order to assure fairness in the
commercial contracts. These terms are expressed part of the contract. Objectives of these terms is
to provide effect to the obvious intentions of parties (Gray, 2010). Example of implied terms are
provision of various acts, case law judgements, etc.
Exclusion clause
5

Exclusion clause can be defined as those contractual terms which makes reduction in the
obligation of parties if they failed to provide satisfactory performance. These contractual terms
are governed by the provisions of UCCTA of English law (Middlemiss, 2011). These terms are
considered by court of law if it is included in contractual deed in proper manner and loss is
covered in the described provision. For this aspect, case of Chapleton V Barry can be considered.
In this case, exclusion clause was considered invalid by court because it was incorporated
through ticket which is merely a receipt and statement on it was not considered as part of
contract.
TASK 2
2.1 Applicability of essential elements of the contract in the given case situation Case scenario- As per the given case situation, Mary had planned to purchase a television
set. For this aspect, she went to the departmental store. At store, a particular model was
selected by her and for the same signed a written agreement. However, she did not read
the terms stated in it. Applicability of essential elements- In the cited situation, offer was given by departmental
deed through written agreement which was accepted by Mary by providing her signature
on the deed. Agreement of the parties was supported by proper intention and mutual
consideration. Validity of contract- By considering the described provisions, it can be said that all the
essential elements are present in the agreement of Mary and departmental store.
Henceforth, agreement of contracting parties is enforceable by court of law.
 Terms of the contract- According to given case situation, statement described in
contractual deed will be treated as expressed terms. These statements are linked to the
price, model number and warranties. In this contract, implied terms described by Sales of
Goods Act will be applied.
2.2 Applicability of contractual terms in the given scenario
In accordance with the provided case scenario, there were two exclusion clause
incorporated by departmental store in point 9 and 11. Clause 9 of the contractual deed depicts
that no liability will be accepted on the side of company if it occurred due to fault in product.
6

Further, clause 11 of the deed impose restriction on the liabilities linked to the personal injury of
the customers (Nysten-Haarala, Lee and Lehto, 2010).
In this aspect provisions of Unfair Contract Terms Act 1977 depicts that, exclusion clause
is considered by court of law for relief only if it is supported by legislatory aspects. Due to this
aspect, if exclusion clause is in contradiction with implied terms than it will be considered part of
the contract. In this case, Clause 9 of the deed is in contradiction with the implied terms
described by Sales of Goods Act as it states that seller is obliged to provide qualitative products
to the customers. Further, Clause 11 is in contradiction with the Consumer Act and Health and
Safety Act. It is because, provisions of these Acts state that seller cannot restrict obligation for
the personal injury.
By considering the legislatory provisions exclusion clause inserted by company is
completely invalid. Due to this aspect, Mary is in position to make claim for both personal and
property damages. Further, for the replacement of television set, Mary is in position to demand
specific performance.
2.3 Evaluation of remedies available to the Mary
In accordance with the described case provisions, Mary can claim for specific
performance for property injury. She is in position to demand refund for the television set or for
the replacement. For the personal injury occurred due to explosion of television set she can make
claim for the monetary compensation to the departmental store.
TASK 3
3.1 Contrast liability in tort with the contractual liability
In order to assure standard performance of parties provision of liability is introduced in
contract and tort law. Objective of both the provisions is to provide compensation of the injury of
parties (Milner, 2011). Further, provisions of both contract and tort liability is covered in civil
law. Despite of these similarities, there are certain difference in contract and tort liability.
Description of these differences is as follows:
Basis of difference Tort liability Contractual liability
Issue of consent In tort liability, relationship is In contractual liability,
7

imposed by court of law
without the consent of parties.
agreement of parties is formed
by their mutual consent
(Nysten-Haarala, Lee and
Lehto, 2010).
Occurrence of obligation Liability in tort is imposed if
defendant fails to satisfy their
general obligations.
Contractual liability arises in
situation of non satisfactory
performance by parties.
Reason of damages Objective of damages in tort is
to compensate the injury
occurred to the innocent party
due to negligent action (Steele,
2007).
In contractual liability
damages are provided for the
compensation of injury
occurred due to non
satisfactory performance of
contracting parties.
Determination of damages Damages are decided by
considering injury of the party.
Damages are provided by
considering contractual deed
of parties.
Case precedent Wilson and Clyde Coal Co. V
English (1938)
Steinberg v Scala (Leeds) Ltd
(1923)
3.2 Explanation of nature of liability in negligence
Negligence can be defined as tortuous action in which individual fails to take care of their
standard responsibility and due to this aspect injury is occurred to the innocent party. In order to
make successful claim of negligence following principles are required to be satisfied by the
claimant: Duty of care: Defendant must have duty of care to the claimant for the prevention of risk
of injury. Duty of care is standard obligation expected from prudent person in such
similar situation (Warren, 2012).
8

 Breach of duty: Defendant must be failed to satisfy their duty and this aspect must be
resulted in the act of negligence. Breach of duty is determined through the applicability
of caparo test. Causation: Negligent action committed by defendant must be the primary reason of the
injury of claimant. Further, claimant must not have any contribution in the act of
negligence else they will not be entitled to make claim of damages (Hernandez, 2010).
 Foreseeability: Damages occurred to the claimant must be predictable from the action of
defendant.
These principles haven been developed from the case of Donoghue V Stevenson. In this
case, claimant was injured by the consuming drink produced by defendant as decomposed snail
emerged from it. In this case, court said that defendant has duty to take care of their production
process for the prevention of risk of injury of customers. However, occurrence of snail for the
drink shows breach of duty by the defendant. Due to negligence of defendant injury was
occurred to the claimant and consequently manufacturer of beer held liable for the act of
negligence.
3.3 Vicarious liability of business by considering case example of Film Flops
Vicarious liability is English doctrine according to which controlling party is also liable
for the negligent actions conducted by the parties controlled by them. It is because, they were in
position to prevent the negligent action but they failed to do so. As a consequence, they are
responsible to provide damages for the injury (Garriga, 2013). In accordance with this approach,
employer is said to be responsible for the actions of employees if negligent action is occurred in
course of employment (Vicarious Liability, 2013). For the prevention of this obligation,
employer has responsibility to ensure that employees are not engaged in any such activities.
In the provided case scenario of Film Flops, employee of the organization had injured to
customer by pouring coffee on his hand. Employee was intoxicated due to which manager was
called. Film Flops has obligation to ensure that employees are in their senses during their
working hours. They must not consume alcoholic products. However, they failed to comply their
duty due to which negligence was committed by employee. Hence, they will be held vicariously
liable to provide damages for the compensation of the injury of innocent party.
9

3.4 Applicability of negligence elements to the given case scenario
Description of negligence principles by considering the case scenario of Film Flops is as follows: Duty of care- As an employee of the company, individual has duty to take care of their
actions for prevention of act of omission at work place that can cause injury to the
innocent party. Breach of duty- Employee was intoxicated during the working hours. This aspect shows
that they had not satisfied his duty in a proper manner. Causation- Intoxicated stated of employee had caused injury to the customer of the Film
Flops as hot coffee was poured on his arm.
 Forseeability- Damages of Paul were predictable from the negligent action of employee
of the company.
Above described provisions depict that all principles of negligence are satisfied in the
given case. As a consequence, employee will be liable to provide damages to the Paul in order to
compensate his injury.
3.5 Applicability of law of vicarious liability to the given case scenario
Despite of provision of vicarious liability, Film Flops will not be liable to provide damages if
they are in position to make benefit of one of the following defence: Volenti non fit injuria- Provision of this defence is applicable for the defence of
defendant in the situation where claimant voluntarily put themselves in a situation where
there is risk of injury (Deaki and et.al., 2007). It is because; injury is occurred due to
carelessness of claimant. Contributory negligence- Benefit of this defence is provided to the defendant in case
where negligent action had been occurred from the contribution of both claimant and
defendant. In such scenario, injured party is not in position to make claim of damages.
 Ex turpi causa- This defence is provided to the defendant party, if there actions cannot be
considered as immoral or unjust as per the viewpoint of law (Adams, 2010).
By considering the case facts, Film Flops is entitled to take benefit of defence of Ex turpi
causa. This defence is applicable because, during the negligent action employee was not in his
senses as he was intoxicated. Consequently, Film Flops does not held responsible for the
negligence of employee.
10

CONCLUSION
Present study is based on the provisions of contract and negligence law. In accordance
with the described provisions, conclusion can be drawn that parties are required to provide
satisfactory performance by complying their duty in a justifiable manner. In situation where they
fail to fulfil their contractual or standard duties then they will be liable to provide damages for
the compensation of injury of innocent party. Obligation for the payment of damages can be
relinquished if parties are entitled to avail defences described in the negligence law.
11

REFERENCES
Books and journals
Adams, A., 2010. Law For Business Students. 6th ed. Pearson Education Ltd.
Austen-Baker, R., 2011. Implied Terms in English Contract Law. Edward Elgar Publishing.
Collins, H., 2003. The Law of Contract. Cambridge University Press.
Deaki, and et.al., 2007. Markesinis and Deakin's Tort Law. Oxford University Press.
DiMatteo, A. L., 2012. False dichotomies in commercial contract interpretation. Journal of
International Trade Law and Policy. 11(1). pp.27-43.
Emerson, W. R., 2009. Business Law. Barron's Educational Series.
Garriga, E., 2013. Corporate social responsibility theories: Mapping the territory. In Citation
Classics from the Journal of Business Ethics. pp. 69-96
Giliker, P., 2010. Vicarious liability in tort. Cambridge University Press.
Gray, J., 2010. Legal commentary. Journal of Financial Regulation and Compliance. 18(3).
pp.293-300.
McKendrick, E., 2012. Contract Law; Text, Cases, and Materials. Oxford University Press.
Middlemiss, S., 2011. The psychological contract and implied contractual terms: Synchronous or
asynchronous models?. International Journal of Law and Management. 53(1). pp.32-50.
Milner, A., 2011. Contract interpretation: potential for relaxing the exclusionary rule.
International Journal of Law in the Built Environment.3(3). pp.205 – 221.
Nystén-Haarala, S., 2010. Flexibility in contract terms and contracting processes. International
Journal of Managing Projects in Business. 3(3). pp.462 – 478.
Nysten-Haarala, S., Lee, N. and Lehto, J., 2010. Flexibility in contract terms and contracting
processes. International Journal of Managing Projects in Business. 3(3). pp.462 – 478.
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.
Steele, J., 2007. Tort law: Text Cases and Materials. Oxford University Press.
Warren, J. M. C., 2012. Law and the Built Environment. Property Management. 30(2). pp.209-
210.
Online
Hernandez, K., 2010. Elements of a negligent tort. [Online]. Available through:
<http://www.legalsource360.com/index.php/elements-of-a-negligent-tort-torts-tort-law-
negligence-duty-breach-causation-damages-2181/>. [Accessed on 18 December 2014].
Mote, A.,. 2013. Types of Contracts. [Online]. Available Through :
<http://www.buzzle.com/articles/types-of-contracts.html>. [Accessed on 18 December
2014].
12

Vicarious Liability. 2013. [Online]. Available Through : < http://legal-
dictionary.thefreedictionary.com/Vicarious+Liability>. [Accessed on 18 December
2014].
13