Understanding Tort Law and Liability in Common Law System
Added on -2019-09-22
This article explains the concept of tort law and liability in the common law system. It covers the but for test, vicarious liability, and the circumstances under which the liability of the principle employer arises. It also discusses the need for a standard form of construction contract and the role of the Joint Contract Tribunal (JCT) in introducing a uniform standard construction contract. Additionally, it provides an overview of the NEC contract, including its core clauses, optional clauses, and dispute resolution mechanism.
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Solution -1There are many circumstances where there exits infringement of rights of otherperson. The right so infringed may be either statutory right or it may be contractualright. The breach of contractual right entitles a person to initiate legal action under lawof contract. on the other hand the breach of statutory right entitles a person to initiatelegal action under common. The common law provides that when there is right thereis remedy. The common law provisions are based on the rule of equity and the remedyis available even if there is no legal provision for remedy under any law. The law relating to tort deals with breach of statutory right and consequences thereof.It is important to note that the law of tot has no applicability in case of criminal breachor contractual breach of right. The tort is common law remedy available against the civil wrong. The liability undertort law arises in case if plaintiff proves following before the court in satisfactorymanner namely:1.The defendant owes duty of care towards plaintiff. The defendant must haveresponsivity to maintain utmost care towards plaintiff. 2.There exits breach of duty of care on the part of plaintiff. Defendant wasnegligent in his act or has not honoured minimum standard of care required tobe maintained. 3.The breach of duty has caused harm to plaintiff. 4.The plaintiff has to establish nexus between the negligence of the part ofdefendant and injury cased to him. This test is even known as but for test.The concept of but for test is most important in case if damages to plaintiff is causedby the negligence of defendant. The plaintiff is under obligation to prove direct nexusbetween damages caused to him and act of negligence of defendant. In case plaintifffail to prove so, defendant cannot be held liable.The liability of tort is vicarious in nature. The employer can be held liable for thewrong committed by his employee. However in case where the principle employer hasemployed independent contractor, generally he cannot be held liable for the wrongcommitted by person employed by independent contractor. The liability of principleemployer arises only if:1.The wrong committed by employee or independent contractor is authorised byor with the consent of principle employee. 2.The principle employer is in position to foresee the danger arising out of actand had failed to warn or to take reasonable steps.
Solution -3In Contraction industry both human capital and the technology are used in equalproportion, previously when the technology was not invested at the high tech level orthe where the high tech technology were not available, the human capital were used atthe work place, corporately higher than the technology. During those days it washighly required to formulate a contractual relation between the constrictor andemployee working at work place. The contract specifies the rights, duties, obligationand other aspects of the contractor, sub-contractor and of employer. It was the timewhere the requirement for execution of contract was introduced but the format andnature of contract was vary from one contractor to another and as a result of whichconfusion and contradiction between the contracts were there. The mutualunderstanding executed between the parties gives a birth to the legal terminology andas a result of which many confusion, contradiction and misunderstand was there. Inshort the contractual relation had created many legal issues, and these had given anobligation among the parties, many confusion, contradiction and issue was there. Allthose issues and contradiction was length and time consuming in nature, ultimately therequirement for the stander format and need of stander contract was created. It wasrequired that such stander contract shall be executed between the employer andemployees in construction industry. The said stander form of contract was the keydocument to resolve the issue between the employer and employee working in theconstruction industry. The stander form of contract helps in the avoiding the legalissues, as well as it has also help in saving the time and money of the peoples involvedIn the transection, The standard form of construction contract harmonizes legal issues,rights and obligation. The above situation had given a birth to the Joint contract tribunal, the tribunal is anindependent body which oversee the function of various parties involved in thetransection, the Joint tribunal contract was established in the year of 1930 by the bodycall royal institute of British Architecture, and the National Federation of BuildingTrades Employers. The body was specifically constructed to introduced a uniformstander construction contract. The tribunal has identified the difference types of
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