Tort Law and Vicarious Liability: A Comprehensive Analysis with Case Studies

Contents
TASK 3 – Vocational scenario....................................................................................................................2
3.1 Explain the similarities and differences (contrast) of liability in tort with contractual liability using
an example..............................................................................................................................................2
3.2 Explain using suitable example how liability for negligence can arise and the conditions needed to
be met for a claimant to successfully prove negligence..........................................................................2
3.3 Explain what vicarious liability means and how a business such as your organization can become
vicariously liable giving example..............................................................................................................3
TASK 4 - Case studies................................................................................................................................3
4.1 Apply the elements of the tort of negligence and defences in the given business scenarios below; 3
Case 7..................................................................................................................................................3
4.2 Apply the elements of vicarious liability in given business situations below;....................................4
Case 8..................................................................................................................................................4
Case 9..................................................................................................................................................5

TASK 3 – Vocational scenario
3.1 Explain the similarities and differences (contrast) of liability in tort with contractual liability
using an example.
Every country is governed by civil law and criminal law. The civil law comprises of several
laws, two of them are the law of contract and the tort. A brief contrast is drawn amid the two:
(Slideshare 2013)
i. In contract law, that parties are in a contractual relationship and are bound to comply
with the terms that are made part of the contract;
In the law of tort, the parties are not joined with any kind of contract but they are
linked with each other under a legal phenomenon;
ii. The liability in the law of contract arises when the parties to the contact does not fulfil
the contractual terms;
But the liability in law of tort arises when there is some legal obligation that is
imposed upon the parties and the same is not met by them;
iii. The liability that is imposed upon the contractual parties is evaluated as per the terms
of the contract;
But, the liability under the law of tort is determined by the courts. The court analyses
the situation in which the loss is incurred and the actual damage that is caused by the
plaintiff prior imposing liability upon the defendant;
iv. The liability in contract is pre determined and thus liquidated;
But the laity in the law of tort is not already analysed by the parties and thus it is
decided by the court making it un-liquidated in nature;
v. In contract, the parties are known to each other;
But on tort, the parties are not aware of each other;
Thus, these are the basic distinction that is drawn amid the two.
3.2 Explain using suitable example how liability for negligence can arise and the conditions
needed to be met for a claimant to successfully prove negligence.
The law of negligence is a tort law which makes a defendant liable for the losses that are
sustained by the plaintiff provided the defendant is found to be in breach of his legal duty. The
main conditions that are needed to be met to make a claimant successful under the law of
negligence are: (Leeds 1998)
i. Duty of care – It is the legal duty that is casted upon the defendant which submits that
no acts of the defendant must be such which causes loss to the plaintiff. But, a duty is
imposed only when:
Neighbourhood- The plaintiff and the defendant are neighbours of each other, that is,
they are so closely connected with each other that the acts of defendant impact the
plaintiff directly. The parties must share a relationship of proximity (Marc Rich & Co
v Bishops Rock Marine (1995);
Reasonable forseeability – That the defendant is duty bound against those plaintiff
who he can reasonably foresee. If the plaintiff is too remote then no duty is casted
upon him.
ii. Breach of duty of care – When the defendant is duty bound then the duty must be
comply with like a normal prudent man behaves in similar situation. The level of care

must be met by the defendant considering the risk associated with the act. If the risk
is high then the level of care must be high.
iii. Damages – The breach of duty when results in loss to the damage then the defendant
is negligent provide (Allied Maples Group v Simmons & Simmons (a firm) (1995).
But for test- The loss that is caused to the plaintiff is but because of the acts of the
defendant and not by any other means;
Remoteness – When the loss that is caused is reasonably anticipated by the defendant
and is not remote in nature.
3.3 Explain what vicarious liability means and how a business such as your organization can
become vicariously liable giving example.
The law of vicarious liability establishes that when any liability is undertaken by an employee
while carrying out the usual course of actions of the business then such liability must be faced by
the employer and not the employee (Century Insurance v Northern Irish Road Transport Boar
(1942). The main elements to prove vicarious liability are:
i. That the parties must be in the relationship of an employee and employers;
ii. That the employee is undertaking actions that are carried out by him in the usual
course of business;
iii. That when the liability is incurred then employee is working under the commands of
the employer;
iv. Loss is incurred to third party because of the acts of the employee;
v. The acts of the employee must not be personal in nature.
When all the elements are comply with then the employer is held liable for the loss of the
employee.
TASK 4 - Case studies
4.1 Apply the elements of the tort of negligence and defences in the given business scenarios
below;
Case 7
Issue
i. Can the hospital be held liable for negligence?
ii. Can the hospital protect itself in the law of negligence?
Law
A defendant is negligent when: (Leeds 1998)
I. The legal duty of care is imposed upon him (Donohue Stevenson (1932). The
defendant is legally bound to provide care to the plaintiff who are is neighbours
(Marc Rich & Co v Bishops Rock Marine (1995) and who he can reasonably foresee
(Topp v London Country Bus (1993);
II. The duty must not be met by him as the level of care that is furnished is not adequate
(Condon v Basi (1985);
III. Because of the breach there must be some loss that is caused to the plaintiff. The loss
that is caused must be because of the acts of the defendant and the loss must not be
too remote .

Application and conclusion
Mr Brown visits Goodmayes Hospital as he was feeling chest pains and breathing problem. The
It is submitted that the doctor is in proximate relationship with his patient and can reasonably
foresee them. Thus, there is a legal duty of care that is imposed upon the doctor.
However, nurse on duty called the doctor who prescribed pain killers.
So, the legal duty is not met by the doctor because the painkillers are prescribed without
diagnosing Mr Brown thus the level of care that is required is not met.
Mr Brown dies as he was suffering from pneumonia which was caused to him because of toxic
mould in his house.
Mr Brown dies thus a loss is caused.
So,
i. Hospital can be held liable because the duty of acre is not met resulting in loss to Mr
Brown.
ii. The hospital cannot be held liable as Mr Brown dies because of pneumonia, thus, the
loss that is caused is not because of the acts of doctor so there is lack of causation.
4.2 Apply the elements of vicarious liability in given business situations below;
Case 8
Issue
Whether the client can sue the company for the loss suffered by him?
Law
In the law of vicarious liability, there must be relationship of an employee and employer. It is
necessary that the employee must be carrying out the duties for the employer. While carrying the
duties there is some loss that is incurred to the third party. The third party is then liable to sue the
employer and not the employee under the law of vicarious liability (Merseyside Docks &
Harbour Board v Coggins and Griffiths (1946).
Application and conclusion
As per facts, a driver is working for a company. Thus the driver and the company are in
employment relationship. The driver was sent to pick a client, thus, the driver is on the official
duty to pick client.
The driver decided to take few glasses of alcohol and while returning he crashed and injuries are
suffered by the client.
Now, the loss that is caused to the client was when he was discharging his official duties. It
makes no difference whether the driver was drunk or not but he was carrying out the duties of the
company.
Thus, the company is held to be vicariously liable for the acts of the driver.

Case 9
Issue
Whether the collegue can sue the supermarket for the loss that is incurred to him because of Mr
Jones?
Law
One of the basic principle that underlines a vicarious liability and which makes an employer
liable for the acts of the employee are that the acts of the employee must be undertaken by him
during the course of employment which would have resulted in causing loss to the third party. If
the acts are not within the course then there is no vicarious liability. (The Law Teacher, 2016)
Application and conclusion
Billericay in Essex is a supermarket and it appointed Mr Jones as a delivery driver. One day, he
slipped on the tail gate when loading pallets and one of them fell over injuries the colleagues.
The injury was severe resulting in a surgery and months of rehabilitation.
But, it is submitted that when the accident took place at that time the responsibility for health and
safety had been delegated to another company.
So, though Mr Jones is the employee of Billericay in Essex but the responsibly of health and
safety is shifted to another company. Thus, when the incident took place at that time Mr Jones
was not the employee of Billericay in Essex. So, the colleague cannot sue the Billericay in Essex
rather can sue the other company who is now responsible for the acts of Mr Jones.

Reference List
Books/Articles/Journals
Leeds (1998) UKLawOnline .
Case laws
Allied Maples Group v Simmons & Simmons (a firm) (1995)
Century Insurance v Northern Irish Road Transport Boar (1942).
Condon v Basi (1985).
Donohue Stevenson (1932).
Marc Rich & Co v Bishops Rock Marine (1995);
Merseyside Docks & Harbour Board v Coggins and Griffiths (1946).
Topp v London Country Bus (1993).
Online Material
Slideshare, 2013, <http://www.slideshare.net/btecexpert/0201compare-contrast-tort-and-
contract>. Viewed on 4th May 2018.
The Law Teacher, 2016, Vicarious Liability
http://www.lawteacher.net/free-law-essays/tort-law/tort-vicarious-liability.php. Viewed on 4th
May 2018.