Tort Law and Vicarious Liability

This assignment delves into the concepts of tort law, specifically negligence, and vicarious liability. It presents several case scenarios where these legal principles are applied. Students analyze each scenario, identifying the elements of negligence and determining the applicability of vicarious liability. The assignment also emphasizes the importance of understanding contract law in relation to tort cases.

Aspects of Contract and Negligence for
Business
1

Table of Contents
INTRODUCTION ..........................................................................................................................3
1. Provide Legal Advice..................................................................................................................3
LO 1.1 explain the importance of the essential elements required for the formation of a valid
contract.........................................................................................................................................3
LO 1.2 discuss the impact of different types of contract context ...............................................4
LO 1.3 analyse terms in contracts with reference to their meaning and effect...........................4
LO 2.1 Apply the elements of contract in given business scenarios ..........................................5
LO 2.2 Apply the law on terms in different contracts business situations .................................5
LO 2.3 evaluate the effect of different terms in given contracts.................................................6
2. Evaluation task.............................................................................................................................6
LO 3.1 Contrast liability in tort with contractual liability...........................................................6
LO 3.2 Explain the nature of liability in negligence....................................................................6
LO 3.3 explain how a business can be vicariously liable...........................................................7
LO 4.1 and 4.2 apply the elements of the tort of negligence and defences in principles of
liability in different business situations along with application of vicarious liability.................8
Statement A..................................................................................................................................8
Statement B..................................................................................................................................8
Statement C..................................................................................................................................8
Statement D..................................................................................................................................8
Statement E..................................................................................................................................8
Statement F..................................................................................................................................8
Statement G..................................................................................................................................9
CONCLUSION ...............................................................................................................................9
REFERENCES .............................................................................................................................10
2

INTRODUCTION
Law specifically refers to rules and regulations which are enforced to protect the rights of
individuals by punishing culprits for their illegal conduct (Marsh and Soulsby, 2002). The report
herewith is going to describe the importance of essential elements of a valid contract. This report
focuses on the difference between liability in tort and contractual liability along with explaining
the nature of liability in negligence. Various cases have been discussed here in this report while
explaining the elements of tort of negligence and vicarious liability.
1. Provide Legal Advice
LO 1.1 explain the importance of the essential elements required for the formation of a valid
contract
Contract is termed as a legal relationship among two or more parties that is used to
perform duties. Following points explains the importance of the essential elements for formation
of a valid contract.
 Offer and acceptance- Offer is mandatory for a valid contract as one party can only
accept the offer in case, it is given by another party. However, invitation to treat is not
considered as an offer because in this, another party provides counter offer to the offerer.
Acceptance, on the other hand is to be seen as unconditional and absolute acceptance of
an offer by the offeree (Four Essential Elements of a Contract, 2014).
 Consideration- Consideration directly links to the return which is agreed by both the
parties. In a legal language, consideration is a pro-quo which means something in return.
There is required an adequate price of performance and it must be agreed by mutual
consent (Four Essential Elements of a Contract, 2014).
 Intention of parties- Both the parties of contract must have an intention to create a
contractual relationship and fulfil promises. The agreement made for domestic or
charitable purpose is not considered as a valid contact.
However, it is also required that parties must be clear with objectives of agreement and
contractual parties must legally position them into the contract. According to the given case
scenario, it can be seen that the offer made by Sam was an invitation to other parties or making a
3

counter offer for purchase of book. Bob has given counter offer to Sam hence; Sam became
obliged to accept the offer. However, he sold the book to Carl which was last in the store. The
law says that Sam was not entitled to pay damages to Bob as he had not accepted his counter
offer so there was not contractual obligation between parties.
LO 1.2 discuss the impact of different types of contract context
Following points represent the types of contacts and their impacts: Face to face contract- In the contract, both the parties are present at the time of
formation of contract and create a verbal contract. In this contract, parties face to face
negotiate the contractual terms. In the absence of quick acceptance, the offer can be
lapsed. Example : purchasing product from the retail store (Gray, 2010) Distance contract- When the parties are not able to meet at similar place for determining
contractual terms. To judge the validity of this contract, postal rule is used. This rule
describes that acceptance is only valid if it is communicated to the offeree. Example:
shopping from online websites (Marsh and Soulsby, 2002).
 Written contract- In a written contact, a deed is to be prepared by the parties that
includes all terms and conditions of a contract. In the case of dispute, this deed is used by
judicial person to solve the case and punish the defendant party.
Here in the present case, it can be seen that a face to face contract was made between
Sam and Bob but Sam has not accepted this offer, hence it lapsed (Twomey, 2007).
LO 1.3 analyse terms in contracts with reference to their meaning and effect
The terms of a contract are generally said to be clauses which are inserted to clearly
express the obligation of contractual parties. There are major two kinds of terms included in
contracts i.e. expressed and implied terms. Here, both the terms are explained:
Expressed terms
The expressed terms are inserted in a contract as per the mutual will of the parties. The
terms are further divided into parts i.e. condition, warranties and innominate terms.
1. Conditions are the core of contracts. In case, these terms are not satisfied in the contact, it
can be breached and parties can also claim for damages (Four Essential Elements of a
Contract, 2014).
4

2. Warranties are known as ancillary terms that are used for clarifying the obligations. In
case if these are not fulfilled then only damages can be claimed by the innocent party.
However, the parties are also obliged to claim damages and perform their duties (Marsh
and Soulsby, 2002).3. Innominate terms are those which do not fit under the criteria of conditions and
warranties.
Implied terms
Implied terms are further described in terms of legislation and custom which further
provides fairness in the contractual relationship. The cited terms are to be assumed as a part of
contract wherever required but parties are not provided with the mutual consent at the time of
agreed to a contract.
LO 2.1 Apply the elements of contract in given business scenarios
According to the given case scenario, there is face to face contract between two parties.
Barry made offer for hiring a chair at a consideration of 50P, however Barry has accepted that
offer and purchased a ticket. This was a counter offer made by Barry which was further accepted
by the local council. Here, the parties came into contractual relationship by their mutual consent,
hence, it can be said that the contract made between Barry and local council was valid as the
parties came into contractual relationship for fulfilling their promise. This agreement was made
between the parties after considering all essential elements of a valid contract which makes it
enforceable by law.
LO 2.2 Apply the law on terms in different contracts business situations
Expressed terms
The price paid for the services are considered as the expressed terms of the contract made
between Barry and local council. However, the statement quoted at the back side of the contract
is called as the innominate expressed term. On the basis of this term, it can be said that the
council can not be said liable for damages that are occurred to Barry. The chair was not having
such elements that provide damages to Barry but he claimed council. The term stated at the back
side of ticket is considered as exclusion clause that allows council to remove their obligation for
non-satisfactory performance. It is further considered as relief in case, it is properly inserted and
is not contradictory to legal provisions (Twomey, 2007).
5

Implied terms
Implied terms represent that Barry and Local council may perform their duties in a fair
manner. In addition to this, parties are complied to follow legal provisions.
LO 2.3 evaluate the effect of different terms in given contracts
The case above defined on the grounds of the case precedent of Chapelton v Barry UDC
[1940] 1 KB 532. In the decision made in respect with the here mentioned case, exclusion clause
was used to restrict their obligation of defendant. As per the application of exclusion clause
defendant has refused to pay damages and law an order was not agreed to this fact. Court had
held that ticket as a receipt which was further said as a part of the contractual terms. In
consequences of such fact, defendants are seen liable to provide damages and in this situation
local council can not take benefits of exclusion for getting relief to not paying damages.
2. Evaluation task
LO 3.1 Contrast liability in tort with contractual liability
According to English Law, provisions of contractual and tort liability have been defined
in order to explain contractual relationship between the parties. The obligations of both kinds of
contractual relationship are covered in aspect of civil law (Hall, 2003). Nonetheless, there are
certain difference between liabilities of parties in both kind contractual relationship. From the
application of law sources, it can be defined that in case parties are agreed to perform their duty
and they have provided their consent then there can be seen contractual liability between them to
fulfil their obligations (Mullis and Oliphant, 2011). On the other hand, trot liability arises when
parties fail to perform their duties and from this impact innocent party is injured. In contractual
relationship, there is seen a legal relationship between parties however, in trot liability
relationship between parties is imposed by law.
LO 3.2 Explain the nature of liability in negligence
Negligence is said to be a tortuous act in which a party fails to provide a reasonable care
to another party and this negligent behavior leads to damages to the other party whether
deliberately or innocently (Elliot and Quinn, 2009). In the case of negligence, the party can claim
to another party only buy satiating all the principles which are stated below :
6

1. Duty of care- According to this principle defendant has a duty to provide standard care to
a party so-as-to prevent possibility of injury. In this case, the principle of neighbor love is
applicable (Giliker,2010).2. Breach of duty- According to such principle, this is to be explained that defendant has
failed to perform his/ her duty and it has resulted into damages to other part.3. Causation- This principle of negligence is applied in pre specified manner to the
negligence cases in which the injured party has to prove that claimant has injured due to
act of breach of duty by defendant (Adams, 2010).
4. Foreseeablity- From the application of such principle, this is to be explained that Injury
of claimant is foreseeable from the action of defendant.
However, defendant is not said liable to provide damages in case where volenti non fit
injuria and ex-turpi causa principles are applied.
LO 3.3 explain how a business can be vicariously liable
The application of different elements of vicarious liability state that third party is liable
for the damages that are made to innocent party as the defendant has done the negligent act under
their assistant. In other words, an innocent party is many seen liable for tortuous action of
another party. This is due to a reason as an authorized party has transferred obligation which
represents influential relationship between parties (Wheare, 2003). In consideration to this
approach, an employer is held liable for the negligent behaviors or an illegal act for their
employees.
According to the given case scenario, Adam was made a unilateral offer by announcing
prize for the first person who will cross English Channel. This advertisement was considered by
Brain and he performed the act. During his performance, the advertisement was come by Adam
for the revocation of offer. In such case, Brian was refused to provide rewards by Adam. To
judge on this case, Carlill v Carbolic Smoke Ball Company [1892] EWCA can be considered. In
case the revocation to the offer was not made in reasonable time hence, Adam will be obliged to
provide damages to the Brian.
7

LO 4.1 and 4.2 apply the elements of the tort of negligence and defences in principles of liability
in different business situations along with application of vicarious liability
Statement A
The statement given in the question is true that Neil is not obliged to provide safe
working environment due to he was an employee there and it is the responsibility of employer to
do this. In addition to that, Ben provided gloves to Roger for having safety but he has not used
them hence, Roger is not in the position to ask for damages.
Statement B
As per the analysis of situation, it can be seen that Roger can sue employer while
considering the provisions of vicarious liability. Hence, it is responsibility of employer to ensure
that senior staff are not engaged in any kind of physical violence.
Statement C
While considering Occupiers’ Liability Act 1957, it can be said that Hotel will be held
liable to provide damages to Mark for the damages occurred to him. This is because Neil has
stolen jewellery and he was employed by Poshplace. It is responsibility of management to ensure
that employees must not get opportunity to conduct and miscount hence, hotel must compensate
for this action.
Statement D
Occupier's Liability Act, 1984 says that Hotel is not liable for damages as “defense of
violent non fit injuries” is applied in the situation where a defendant can have benefits for non
performance of duty. It can be provide that Mark has put himself in the situation of being injured
(Occupiers Liability Act. 1984, 2015).
Statement E
In this case general principles of negligence can not be applied as clear warning was
previously provided to the visitor t for not entering into the pool at stated period.
Statement F
The claim for damages can not be asked by Mark as in the case situation as “defense of
violent non fit injuries” is applied.
8

Statement G
Vicarious liability provisions can not be applied because robbery is a criminal action gor
which employer is not liable.
CONCLUSION
The above report concluded that elements of tort of negligence and vicarious liability are
applied in different cases as per the given case scenario and applicability of law. In order to
better understand various elements of contract law, the given case scenarios are linked to the
previous case studies.
9

REFERENCES
Books and journals
Adams, A., 2010. Law For Business Students. 6th ed. Pearson Education Ltd.
DiMatteo, A. L., 2012. Common European Sales Law: A critique of its rationales, functions, and
unanswered questions. Journal of International Trade Law and Policy. 11(3). pp.222-240.
Elliot, C. and Quinn, F., 2009. Tort Law. Longman.
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.
Hall, C. J., 2003, The contractual nature of social law. Managerial Law. 45(3/4), pp. 23-107.
Marsh, B. S. and Soulsby, J., 2002. Business Law. Nelson Thornes.
Mullis,A. and Oliphant, K., 2011.Torts. Palgrave Macmillan
Twomey, D. P., 2007. Anderson’s Business Law and the Legal Environment. Cengage
Online
Four Essential Elements of a Contract. 2014. [Online]. Available Through: <
http://www.smallbusiness.wa.gov.au/four-essential-elements-of-a-contract/>. [Accessed
on 22nd February 2016].
Occupiers Liability Act. 1984. 2015. [pdf]. Available through:
<http://www.legislation.gov.uk/ukpga/1984/3/data.pdf>. [Accessed on 22nd February
2016].
Wheare, C., K., 2003. Maladministration and its remedies. The English law. [PDF] Available
through: <http://socialsciences. Dimension.pdf>. [Accessed on 22nd February 2016].
10