Contract vs. Tort Liability

This assignment delves into the distinctions between contractual and tort liability. It explores how breaches of contract lead to one type of responsibility, while wrongful actions resulting in harm give rise to the other. A specific example involving a minor injured at a milk farm illustrates vicarious liability, highlighting the employer's (Norfolk Farm) potential responsibility for an employee's (Alan) negligence.

ACNB
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TABLE OF CONTENTS
INTRODUCTION...........................................................................................................................3
TASK 3 ...........................................................................................................................................3
3.1 Contrast liability between contract and tort liability..............................................................3
3.2 The concept of 'Duty of care' and 'The neighbour principle' in the law of negligence..........4
3.3 Explanation of vicarious liability...........................................................................................5
TASK 4............................................................................................................................................6
4.1 Case scenario, .......................................................................................................................6
4.2 Case Scenario, .......................................................................................................................6
CONCLUSION................................................................................................................................7
REFERENCES................................................................................................................................8
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INTRODUCTION
There are various laws and regulation that are framed by the governing authorities in
order to ensure proper and valid formation of contractual relationship among the parties
(Gardiner, 2006). Legal doctrine also focuses on imposing different contractual obligations as
well as terms that need to be abide by the parties while formulating or entering into the contract.
Present report focuses on understanding the nature of contractual liability with the tort liability as
both are considered as different aspect. Furthermore, the report will also understand key
provision and principles of negligence that will affect the overall contractual agreement among
the parties.
TASK 3
3.1 Contrast liability between contract and tort liability
Under legal doctrine contractual liability arises when the debtor or party fails to
accomplish or delayed in accomplishing their responsibilities and duties that are imposed within
the contractual agreement by the parties (Contract and Tort Law, 2014). Furthermore, the
contractual liability enables the suspected party to pay for the damages to the innocent party. On
the other hand, tort liability is opposite to the contractual liability that is tort liability arises when
the party fails to perform their duty in the reasonable manner and results in harming the other
party. Tort liability are the outcome of negligence activities. There are some other difference
among the contractual and tort liability are as follows-
Ground of differences Contractual liability Tort liability
Key reason for arising
contractual liability
As per the legal doctrine the
nature of contractual liability
arises when one party fails to
perform their activities as per
the written deed and
agreement and results in
damaging the innocent party.
Avery v Bowden [1855]
On the other hand, tort liability
often arises in the situation
when the individual whether
he is in contract or not neglect
to perform their duty with care
and results in harming the
other party. Thus, tort liability
arises in such situation. Barnett
v Chelsea & Kensington
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Hospital [1969] 1 QB 428.
Relationship among the parties Within contractual liability
there is contractual
relationship among the parties
they have been in the valid
contract.
On the other hand, in nature of
tort liability the parties are not
in the agreeing contractual
relationship (Hernandez,
2010).
Arises of liability The contractual liability arises
or originate with the breach of
terms and condition by the
parties those who are agreeing
to the contract. Scammell &
Newphew v. Ouston [1941]
AC 251.
The tort liability arises by
considering the four principle
of negligence that is duty of
care, breach of duty, causation
and foreesability. Donoghue v
Stevenson.
Damages Under contractual liability
damages are provided to the
claimant party after
considering the terms and
conditions that are mutually
imposes by the parties. Dahalia
v Four Millbank [1978] CH
231.
On the other hand, under tort
liability damages are provided
to the injured party after
considering the nature of their
injury. In addition to this. The
damages for injury are also
decided by the governmental
authorities. Henderson v
Merrett Syndicates [1995] 2
AC 145.
3.2 The concept of 'Duty of care' and 'The neighbour principle' in the law of negligence
Negligence can be termed as tortuous activities that are conducted by the parties that
further results in violating the terms of the contractual deed or legal doctrine (McKendrick,
2012). The neglectful action performed by the party also results in damaging or injuring the other
party. Form the case precedent Donoghue v Stevenson the concept of duty of care get arises.
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Case scenario Donoghue v Stevenson [1938] AC 562
The case states that Mrs. Donoghue went to the cafe with his friend and ordered chilled
beer and ice-cream. The cafe owner bring the beer and ice-cream the ginger beer come in the
opaque bottle thus, the content within the bottle was not visible. Donoghue pour half of the beer
on ice-cream and also drank some beer. After that she poured rest of the ginger beer from bottle
on the ice-cream. She found decomposed snail emerged form the bottle. As, the result Mrs.
Donoghue suffered from the personal injury and she commenced claim against the beer
manufacturer for such neglectful activities while producing the beer.
After considering the case the concept of neighbour principle has been developed. As per
the concept individual or party is required to take care of their duty in order to overcome or avoid
the error or damages to the other or neighbour party. Thus, through considering the case
scenario, it has also been explained that it was the duty of manufacturer Plaintiff to take care of
their duty while producing the beer. Thus, Donoghue is in the situation to claim compensation
for their damages or injury.
3.3 Explanation of vicarious liability
Vicarious liability is the situation that impose obligation on the third party for the
neglectful action and activities performed by the faulty party (Harpwood, 2009). The key
purpose for imposing vicarious liability is to impose responsibility that the accountable party is
in the condition to control the activities of their staff and employees in order to overcome the
neglectful activities (Vicarious Liability, 2015). Therefore, through considering this aspect it can
be said that business or organization is accountable or vicariously liable for the misbehave that
has been conducted by their employees and staff within the workplace (Spindler, 2011). Thus, it
is essential to monitor the performance and activities performed by staff and employees as well
as providing proper guidance so that they can easily omit the wrong activities within the
employment.
Case scenario,
The case scenario is being described as Roger dishwasher in the hotel has complaint
regarding the skin rashes that is being due to washing dishes and utensils for the long time
period. The hotel owner has provided rubber gloves or their employees but they won't use them.
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Colin the head chef get fed up from the activities of Roger and results in knocking him with the
frying pan.
Through considering the above scenario, Ben the hotel owner has performed their duty by
providing rubber gloves to their staff (Scott, 2007). As per the duty of care Roger has to take care
through using the rubber gloves so that they wont complain regarding the skin rashes.
In addition to this, Ben is vicarious liable for the damages as he must ensure that Colin
may not engage in any sort of aggressive activities within the workplace.
Furthermore, Roger can also claim in vicarious liability against Ben for Colin actions as
they are accountable for monitoring the activities of Colin.
TASK 4
4.1 Case scenario,
The case is describes that Taxi driver negligently over turned the car and result in the
situation of accident. Mr. Smith that lived nearby heard of the accident and went to assist the
accidental case. For the next 10 hrs. he has assisted in taking emergency services at the site. The
rescue services that arrive at the accidental place has in-valued the services of Mr. Smith. As the
result Mr. Smith suffered from the nervous shock.
(a) Whether Mr. Smith in the given circumstances can claim for nervous shock
Through considering the above case scenario, Mr. Smith is not in the condition to sue
Taxi company for the nervous shock as the Taxi driver has drove the car negligently and hitted
other person. Furthermore, no one has asked Mr. Smith to provide help (Milner, 2011). In such
circumstance Smith is not liable to sued the Taxi company for nervous shock. In this case
scenario, Taxi driver due to the negligence driving hit the other person therefore, the person who
is injured is liable to claim damages instead the injured person who has provided them assistance
is claiming for the nervous breakdown. In this such situation Mr. Smith is not in the condition to
claim for the nervous shock. His assistance was invaluable but although it was required.
Case Scenario,
Paul engage in learning to fly helicopter one day while flying Paul crashes the helicopter
in the tree. He had attained best practices and activities to avoid the accident but he won't
succeed. Thus, the passengers within helicopter was badly injured and hurt.
(b) Whether Paul had a defence as he was 'only' learner
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From considering the case scenario, it can be said that Paul was the leaner as he was
learning to fly helicopter. In this situation Paul must apply the defence of Volenti non fit injuria
as he was learning how to fly the helicopter. Thus, the negligent action performed by Paul is
voluntary in nature as he was aware the he is the only learner. In addition to this, he was only
learner thus Paul had defence for their negligent action that the accident performed by him was
voluntary in nature not contributory in the nature. Thus, Volenti non fit injuria defence is
applicable in this case scenario. Thus, Paul is liable in this situation and can be sued for the
negligent activities that results in injury for the other individual flying in the helicopter.
4.2 Case Scenario,
Linda William owns a car that is being used by her within the business as well as by her
husband Mr. William. After drinking Mr. William is unfit for driving the car thus she has
allowed Alexander to drive the car when Mr. William is in drunken state. On one occasion,
Alexander drove the car negligently and results in injuring the passengers within the car. In such
situation Linda Williams be held vicariously liable for the action of Alexander as while allowing
him to drive the car both the parties enters into the agent and principle relationship. Thus, for the
negligent actions of Alexander Linda William is being held vicarious liable.
a) Whether Linda Williams can held responsible for the wrong committed by Alexander
On the other hand, the neglectful activity performed by Alexander through driving the
business car therefore, the owner of car Linda William is held vicarious liable for the wrong
commitment committed by Alexander. Moreover, Linda William is not held liable for the
neglectful action as she was not driving the car. She has just allowed Alexander to drive the car
when his husband is in drunken position. In the situation the concept of vicarious liability also
arises as the car that was negligently drove by Alexander has been provided by Linda William
thus, she is responsible for the accident and she is also liable to pay for the damages and injury
that has been caused to passengers those who were in the car at the time of accident (Oughton,
Marston and Harvey, 2007). Furthermore, Linda William has not committed anything wrong
thus she is not accountable for paying to the damages.
Case Scenario,
In the case scenario, Alan one of the employee of Norfolk farms has employed 13 year
old boy to assist them in delivering the milk. Alan was conscious regarding the fact that he is not
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in the condition to hire the minor within the employment but he ignores and hire him for
delivering the milk. After some days, Alan drove the car negligently and result in injuring the
minor.
b) Whether Alan can be sued for negligence and whether Norfolk Farms can be vicariously liable
or not
Through considering the case scenario, Alan can be sued for the negligence as firstly he
has hired the minor that is against the law and has also keep this as secret from the owner of
Norfolk farm (Devenney and Johnson, 2013). In addition to this, Norfolk Farms will also be held
vicariously liable in the situation as they need to monitor the activities of Alan that he has hired
the minor within their farm for delivering the milk. On the other hand yes, Norfolk farms must
be held vicariously susceptible in the situation as it was their responsibility to monitor the actions
and activities performed by their employees at the workplace. Moreover, The farm is also held
vicarious accountable for the action of their employees and staff for employing a 13 years boy
within their workplace for delivering the milk (Vicarious Liability, 2015). Therefore, Alan due to
negligence he injured the minor in this situation he is not solely accountable for causing
indemnity to the minor. In the scenario, Norfolk farm is responsible for the harm as the owner
has idea regarding the employment of minor in the milk farm. Thus, indemnity to the injured
party must be compensable by the Norfolk farms.
CONCLUSION
From the above report it can be summarizes that there is difference among the contractual
liability and liability in tort. Contractual liability arises with the breach of terms and condition of
the contractual deed. On the other hand, tort liability arises with the tortuous actions performed
by the parties that results in damage to the other party. In addition to this, the report also
understand the nature of vicarious liability in the different situation.
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REFERENCES
Books and Journals
Devenney, J. and Johnson, H., 2013. Contract, Tort and Restitution Statutes 2011-2012.
Hoboken: Taylor and Francis.
Gardiner, S., 2006. Contract and negligence law. London: Cavendish Pub.
Harpwood, H. V., 2009. Modern tort law. Routledge.
McKendrick, E., 2012. Contract Law; Text, Cases, and Materials. Oxford University Press.
Milner, A., 2011. Contract interpretation: potential for relaxing the exclusionary rule.
International Journal of Law in the Built Environment. 3(3). pp.205 – 221.
Oughton, D., Marston J. and Harvey B., 2007. Law of Torts. Oxford University Press.
Scott, M.D., 2007. Tort liability for vendors of insecure software: Has the time finally come. Md.
L. Rev. 67. pp.425.
Spindler, J.C., 2011. Vicarious liability for bad corporate governance: Are we wrong about 10b-
5?. American law and economics review. pp. 026.
Online
Contract and Tort Law. 2014. [Online]. Available through: <http://www.legalmatch.com/law-
library/article/contract-and-tort-law.html>. [Accessed on 2nd May 2016].
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 2nd May 2016].
Vicarious Liability, 2015. [Online]. Available through:
<https://www.law.cornell.edu/wex/vicarious_liability>. [Accessed on 2nd May 2016].
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