Contract Law Tort Law

Question: Describe about the Contract Law for Tort Law? Answer: Tort Liability In the present case, Mobius and Pythias worked in the factory named Carefull Manufacturing Company from the past two years. Two months back, Mr Wise, who was the owner of the said factory decided to rewire certain parts of the factory and gave the rewiring contract to Mr Damon, who was an electrical contractor and the owner of Damon Electricals. Before Mr. Damon started the rewiring work, he stated his business policy statement to Mr Wise, which was in a form of a waiver stating that Damon Electricals will not be responsible for any loss, damage or injury sustained by anyone who is the client of the company. Last month, Mobius was electrocuted due to negligent wiring done by Damon Company. Pythias who witnessed Mobius from a distance of 75 yards suffered from a severe nervous breakdown. In addition, when Mobiuss wife was informed about her husbands dead suffered from a nervous breakdown As Mobuis was a very popular employee of Carefull Manufacturing Company, all his collegues wished to attend his funeral, which was about 50 miles away from the factory, for the said reason the factory was shut down from 11 a.m on Mobuiss funeral day. The closure of the factory resulted into a loss for business of about 1,000 to the Eatwell Restaurant, which was across the factory road where nearly 400 workers ate lunch every day[1]. Damon who felt very guilty of the whole situation donated 100,000, which he received from recent Euro Lottery winnings of 5m to Mobiuss wife Amelia. The issue in the said case is to discuss the tortuous liability. Tort is a civil wrong, which gives the injured party the option to bring about a civil action. The present case relates to tort action of negligence which can be brought about by Carefull Manufacturing Company against Damon Electricals o the grounds that the negligent rewiring doe by the Damon Company has killed an employee of the Carefull Manufacturing Company and additionally considerably harmed the business and other employees of the said company. Negligence is referred as carelessness in routine life. However, legally negligence has a separate meaning. Legally, negligence is referred as a failure to exercise standard degree of care, which an individual possess as a reasonable person should possess in any given situation, where his failure of duty of care has injured or harm a third party[2]. It is a duty of every individual to take care when the individual foresees that a failure of the said duty will harm or injury a third party. There are certain essential elements that are req uired to be present to prove negligence. The burden of proof in such cases lied on the plaintiff who needs to prove the presence of the following events to establish a valid claim for negligence. The said events are as follows: Duty of care The primary element which a plaintiff needs to establish is that the defendant owed the plaintiff duty to take care. In the famous ginger beer case, Donoghue v. Stevenson, 1932 AC 562, the court explained to whom an individual owes duty of care. The Judge in the said case stated that the people who are closely and directly affected by an act of an individual, which can possibly harm or injure them, in that case the individuals owes a duty of care to anyone who could be so harmed by his actions. Breach of the duty The plaintiff then needs to prove that the defendant who owed duty of care has committed an action or as a result of an omission on his part, the said duty of care is breached. For example, a person walking on the road died after a heavy branch from a tree flew on his head[3]. In this case, the Municipal Corporation of the said area was held for negligence for not maintaining harmful branches that ultimately resulted in someones death[4]. Breach directly caused injury Another event, which the plaintiff needs to prove, is that the breach of duty to take care by the defendant has directly resulted into the injury or damage, which the plaintiff suffered. The injury in this case can be in any form like physical or mental injury, loss of reputation, property damage, etc. In Newman others vUnited Kingdom Medical Research Council (1996) CA, new drug was developed to help children whose growth were stunted. Nearly 2000 children were treated with a drug, which caused their death shortly after consumption. In this case, the Court held that the drug company owed a duty of care and was shut up after compensation was provided to the families of all injured children. When a plaintiff proves the said events, a negligent action can be rightly brought against the defendant. In this cause, the plaintiff can claim for monetary damages, which can be unliquidated in many cases depending upon the facts of each case. The only defences available to a defendant in case he wants to fight back a negligent action claim against him are contributory negligence of the plaintiff, Act of God or inevitable accidents. Many a times, before entering into any service agreement, a waiver is signed which states that the company providing services to an individual or another company will not be responsible for any loss, injury or damage which the service receiving company sustains. This is called a waiver agreement, which can be a separate agreement or a term of the service agreement. However, a waiver signed before getting into any contract does not save the company from extreme personal liability actions[5]. When a company agrees to provide any service to a client, signing a disclaimer or a waiver is not a complete protection against an action for negligence or negligently providing poor services, which harms the company or its employees receiving services from the negligent company. In United Kingdom, the government has introduced a legislation called the Unfair Contract Terms Act, which imposes limits on the extent to which a waiver or a term in a contract can waive or limit personal injury actions or civil liabilities. This means that signing a waiver under the said Act does not restrict civil liabilities for injury or death, which is caused by the negligent actions. In a service contract, the company is vicariously liable for the wrongful and negligent action of its employees f they have supplied or offered poor or negligent services. The principles of vicarious liability are well established and deep rooted in the tort laws established in United Kingdom. Vicarious liability is a secondary or a strict liability that arises out of the common law agency doctrine. The law of agency has created the concept of vicarious liability. This legal concept creates a strict liability on the employer for the negligent actions of its employees if the said actions are committed during the course of employment. To prove vicarious liability against an employer, it is essential to prove that the employee was not working in his personal capacity and injury to an third party is a result of an action the employee has committed during the course of his employment. The essential elements of vicarious liability are as follows: Employer-employee relationship To be successful in a claim for vicarious liability, it is necessary to prove an employer- employee relationship between the wrongdoer and is employer. For the doctrine of respondent superior to be applied, it is necessary that the employer-employee relationship exists for the employer to be responsible for the wrong actions of his employees. This can be proved b simply stating that the employer had control over what the employee does. Another way to prove employee-employer relationship is to check if the employee was hired under ant service of employment or service agreement[6]. Negligence Vicarious liability can be claimed only when the employee does an action or commits an omission which results in breach of duty of care e owes to a third party resulting in the physical or monetary harm of the third party[7]. In the course of employment The claim for vicarious liability is valid only when the negligence is committed in the course of employment by the employee. This means that the said negligence is a result of an authorised act or is under an authorised job, which the employer has ordered the employee to conduct, and the said ob is executed in an improper or negligent manner. The remedies under these cases are usually monetary compensation which the injured party can demand from the employer for the unlawful and negligent actions of the employee committed during the course of employment. In Poland v John Parr and Sons (1927) KB 236 an employee assaulted a boy believing him to be stealing is employers goods. I this case, the Courts held that vicarious liability would be validly imposed based on implied employees authority to safeguard masters goods[8]. In the present case, Carefull Manufacturing Company can claim a tort liability of negligence from Damon Electricals on the grounds of negligently rewiring the said factory which resulted in to the death of an employee named Mobius and many other financial losses[9]. Damon Electricals owed a duty of care to Careful Manufacturing Company when it signed a service contract of rewiring the companys factory. Moreover, Damon Electricals acted negligently in performing rewiring services, which resulted into a breach of duty, that Damon electrical owed to Carefull Manufacturing Company causing injury and damages to the said company[10]. The injury and the damage was the direct cause and result of the negligent service provided by Damon Electricals. Therefore, Carefull Manufacturing Company was legally eligible to sue Damon Electricals under the tort law of negligence. The waiver under the business policy statement that Mr Damon signed with Carefull Manufacturing Company does not give Damon El ectrical an exemption from being sued for the death and injuries caused by their negligent action under the Unfair Contract Terms Act. This Act makes provisions to not restrict civil liabilities for injury or death, which is caused by the negligent actions in United Kingdom. Therefore, Carefull Manufacturing Company can sue Damon Electricals for negligence ignoring the fact that Damon Electricals had made the said company sign a waiver, which makes Damon Electricals free from civil liabilities that can be claimed as a result of any injury damage or harm to its clients. In United Kingdom, the legislation makes provisions for protecting the injured from negligent actions of a third party, when the negligent party has got waiver signed to avoid civil liabilities[11]. The Unfair Contract Terms Act is a masterpiece within the array of tort laws to protect injured from the harsh consequences of signing a waiver, which cannot be relaxed to claim damages[12]. In the preset case, as the employees of Damon Electricals who were engaged in wiring services were acting under the control of Mr Damon who was the owner of Damon Electricals. Therefore, their negligent action in defaulting with the rewiring services makes Mr Damon vicariously liable for the wrongful and negligent actions of its employees[13]. In this case, to prove vicarious liability, Carefull Manufacturing Company will have to prove that the there was an employer-employee relationship between Mr Damon and the employees who worked in Damon Electricals which can be established by the service agreement the employers were signed under or by the fact that Mr Damon had full control over their actions[14]. Once the employer-employee relationship was established, the negligence on part of the employees in conducting wiring services needs to be proved. Lastly, the fact that the negligence was committed during the course of their employment needs to be established. As all these three elemen ts are evident in the present case, it can be legally said that Mr Damson was vicariously liable for the act of his employees in negligently rewiring the Carefull Manufacturing Companys factory which resulted into the death of Mobius and various other monetary losses to the said Company[15]. In the present case, a tortuous liability of negligence is evident and the tort law of vicarious liability can be applied to the said situation as Mr Damon was responsible for the negligent actions of his employees who negligently rewired the Carefull Manufacturing Companys factory which resulted in to the death and many monetary losses to the company. The said Company was shut on the funeral of Mobius, which attracted loss of business, and profits and the Eatwell Restaurant can claim for damages from Damon Electricals for loss of business. Therefore, Mr Damsons waiver or his donation to Mobiuss wife Amelia will not exempt him from civil tort liability of negligence[16]. Reference List Chen-Wishart M, Contract Law (Oxford University Press 2012) 'Editorial Board' (2015) 156 Endocrinology Giliker P, 'Vicarious Liability Or Liability For The Acts Of Others In Tort: A Comparative Perspective' (2011) 2 Journal of European Tort Law Kidner R, Casebook On Torts (Oxford University Press 2012) Kleiman L and Kass D, 'Employer Liability For Hiring And Retaining Unfit Workers: How Employers Can Minimize Their Risks' (2014) 41 Employment Relations Today Koffman L and Macdonald E, The Law Of Contract (Oxford University Press 2010) Lee J and Kim H, 'Countermeasures Against Violation Of Human Rights By Multinational Corporation' (2015) 19 jias Lewis R and Morris A, 'Tort Law Culture In The United Kingdom: Image And Reality In Personal Injury Compensation' (2012) 3 Journal of European Tort Law Macdonald E, Atkins R and Koffman L, Koffman Macdonald's Law Of Contract Markesinis B, Johnston A and Deakin S, Markesinis And Deakin's Tort Law (Oxford University Press 2012) Muchlinski P, 'Limited Liability And Multinational Enterprises: A Case For Reform?' (2010) 34 Cambridge Journal of Economics Pozgar G, Pozgar G and Pozgar G, Legal And Ethical Essentials Of Health Care Administration (Jones Bartlett Learning 2014) Steele J, Tort Law (Oxford University Press, USA 2010) Van Dam C, European Tort Law (OUP Oxford 2013) Visscher L, 'Wrongfulness As A Necessary Cause Of The Losses - Removing An Alleged Difference Between Strict Liability And Negligence' (2011) 2 Economic Analysis of Law Review Weinrib E, The Idea Of Private Law (OUP Oxford 2012) [1] Mindy Chen-Wishart, Contract Law (Oxford University Press 2012). [2] 'Editorial Board' (2015) 156 Endocrinology. [3] Paula Giliker, 'Vicarious Liability Or Liability For The Acts Of Others In Tort: A Comparative Perspective' (2011) 2 Journal of European Tort Law. [4] Richard Kidner, Casebook On Torts (Oxford University Press 2012). [5] Lawrence S. Kleiman and Darrin Kass, 'Employer Liability For Hiring And Retaining Unfit Workers: How Employers Can Minimize Their Risks' (2014) 41 Employment Relations Today. [6] Laurence Koffman and Elizabeth Macdonald, The Law Of Contract (Oxford University Press 2010). [7] Elizabeth Macdonald, Ruth Atkins and Laurence Koffman, Koffman Macdonald's Law Of Contract. [8] Jin Woo Lee and Hyeon Jeong Kim, 'Countermeasures Against Violation Of Human Rights By Multinational Corporation' (2015) 19 jias. [9] Richard Lewis and Annette Morris, 'Tort Law Culture In The United Kingdom: Image And Reality In Personal Injury Compensation' (2012) 3 Journal of European Tort Law. [10] Basil Markesinis, Angus Charles Johnston and S. F Deakin, Markesinis And Deakin's Tort Law (Oxford University Press 2012). [11] P. Muchlinski, 'Limited Liability And Multinational Enterprises: A Case For Reform?' (2010) 34 Cambridge Journal of Economics. [12] L. Visscher, 'Wrongfulness As A Necessary Cause Of The Losses - Removing An Alleged Difference Between Strict Liability And Negligence' (2011) 2 Economic Analysis of Law Review. [13] George D Pozgar, George D Pozgar and George D Pozgar, Legal And Ethical Essentials Of Health Care Administration (Jones Bartlett Learning 2014). [14] Cees Van Dam, European Tort Law (OUP Oxford 2013). [15] Ernest J Weinrib, The Idea Of Private Law (OUP Oxford 2012). [16] Jenny Steele, Tort Law (Oxford University Press, USA 2010).