Introduction
The law of tort is a section of the law that deals with civil wrongs such as insult and trespass amid many other offences. Under the law, if a person suffers bodily, legal or monetary harm, he can file a case in the court of law. If the court deems the lawsuit legal, the person suffering from tortious injury is likely to receive payment according to the extent of the damages caused. Tort law is divided into intentional, unintentional, and liability torts. Unintentional torts are most applicable in car accidents and are caused by a person acting carelessly. A tort is intentional when for example an individual takes control over another’s property such as land for his gain without permission, whereas strict liability covers products (Emerson, 2009). This paper focuses on the role of tort in business activities and analyzes particular forms of tortious liability.
Differences between Tortious Liability and Contractual liability
A tort is an incorrect act that makes a person suffer from either bodily harm or loss of possessions such as land. An individual who commits a tort is legally responsible for the damages suffered. For example, if a driver hits another car due to reckless driving or overspending, he is liable for the action. Some instances of tortious liability are illegal and criminal. For example, if a person strikes another intentionally, he commits a crime and at the same time, a tort. Generally, a tort entails a violation of an obligation imposed by law.
On the contrary, a contractual liability occurs when a person suffers due to failure to honour a contract rule. For example, if a person agrees to repair another’s house for $1000, and takes $700 before the job, and then gets another job offer and fails to repair the house, the owner of the house can go to court and claim the $700 paid because the other party breached the contract. This type of claim is a contractual liability claim.
Johnston, Deaki, and Markensis (2007) concur that in both tortious and contractual liabilities, the party that commits an offence or breaches a contract is accountable. However, they differ in the fact that in contractual liabilities, there has to be a contract made between two parties, but in tortious liability, a person who causes harm to another either intentionally or unintentionally is responsible for all the damages suffered. In both cases, when there is a breach of right, the wrongdoer is responsible. The wrongdoers in both liabilities commit crimes and the court can either fine or imprison them.
Similarly, in contractual liability, the person who suffers damage will receive compensation and any other earnings, which could be gained in that contract. However, we find that in tortious liability, a person who suffers harm can only claim for damages his goods, for example, in the case of car damage. In this case, we see that there is more freedom in contractual law whereas nature forces the tortious liability. Since contractual liability involves two or more parties agreeing, there is more privacy given that only those who are involved in the contract can sue for damages. In tortious liability, anyone can claim damages from the defendant so long as he suffers damages. For example, if a person damages three cars belonging to different persons in an accident. In essence, the wrongs and damages occur in both tortious and contractual liabilities: in each case, the claimants must prove their losses if they want to get any compensation because if there is no loss, then there is no compensation (Gordley & Mehren, 2006).
The Liability Applicable to an Occupier of Premises
Occupier’s liability is the liability of an individual who is in control of land or buildings concerning the damages suffered by the persons who enter the premises, whether invited or not (Fishman, 2008). Other premises include ships and portable structures, which may serve as shelter. The person may be a trespasser who enters with no permission, a person with permission or a licensee, the persons who have a right to enter such as meter readers, firemen, visitors to public premises such as animal parks, and the contractual entrants who pay to use the premises, for example, those who pay to watch movies. The occupier is the person who is in charge of the premises. The occupier must make sure that the visitors who come to the premises for a genuine reason is safety. Many cases occur and make the owner either liable or not liable for the damage.
For instance, there is this Scottish case, which involved an eleven-year-old boy who climbed an electrical fence that was enclosing a power substation. His body was electrocuted, and he died on the spot. Soil covered the base of the fence; hence, it was four feet to the top, which made it easy for him to climb. Although there were warning signs on the fence, the Scottish power was liable for the damages. This is because Section 2(3) (a) of the Act clearly states that an occupier should be ready if any danger occurs to children since they are less careful than adults are. Young children may not be able to read warning signs and so it is difficult to put safety measures for them. In another case, two children were walking along a field where an occupier was setting up a building. One of them fell on a deep trench and broke his leg. Here the court ruled that is obvious that the trenches were a danger to the small children hence the occupier was held liable.
In this light, it is the occupier’s duty in occupier’s liability to keep all the areas within the premises safe. These areas include staircase, walk paths, car parks, and driveways. The occupier can be held liable if, for example, a person slips and is injured on a wet floor because he has to keep all the premises free from any hazards. There are cases where liability is shared between two or more people. For example, if a premise has more than one occupier, there is a need to establish the circumstances leading to loss to determine who is to be held liable.
The Nature of Employer’s liability concerning Vicarious Liability and Health and Safety Implications
An employer’s liability is a liability held by the employers due to accidents that occur to employees during their time of employment. Employers are responsible for the health and safety of the workers at work (BPP, 2010). The workers may be injured or become sick due to the nature of work such as lifting heavy equipment or other work-related injuries. There is a direct relationship between employer’s liability and vicarious liability because employer’s liability assigns responsibility to a person who is not the cause of injury but has a relationship with the individual who caused negligence. Just like employers’ liability, the person under control is the one who takes responsibility for any damages. For example, in the case between a car owner and the driver, the car owner is liable for any accidents caused by the driver.
According to Fishman (2008), the employer is responsible for the employee’s negligence because he is in charge of the employer. For example, if a truck driver hits another car due to negligence and injuries, and damages occur, the company that employed the driver will be held liable for the damages. If the same driver violates traffic rules and drives beyond the limited speed, the company is also liable to pay any fine that is imposed on him due to negligence. The same case applies in vicarious liability where, for example, a child decides to drive a vehicle registered under the parent’s name. If the child is negligent, the parents are accountable for any negligence that occurs as the child is on a wheel.
An employer can also be liable for defamatory statements, especially if the employees are involved in the course of their duties. For example, newspaper and other media companies are liable for any defamatory material published by their employees. However, there must be clear evidence of whether there was an authorization of publication of the defamatory material.
Differences between Strict Liability and General Tortious Liability
Emerson (2009) states that strict liability is a liability that inflicts legal responsibility for the damages suffered due to persons’ behaviour despite the persons’ state of mind even if he was not negligent. Strict liability includes products liability, mega hazardous activities, animal care, and statutory offences. Products liability involves claims for injuries from faulty designs of consumer products. The claimant does not necessarily have to show that the manufacturer was careless in designing a product, but he shows the defective product that caused an injury. Strict liability is also enforceable to persons involved in major hazardous activities such as oil drilling, which are risky but valuable enterprises. Similarly, strict liability arises when animal owners neglect their duties to protect people and the environment from animal harm. For example, when they invade another persons’ farm and thereby, causing damages to plants or other properties.
Additionally, strict liability is a liability with no-fault because it depends on whether the damages caused are sensibly foreseeable while tortious liability depends on the duties enforced by law. In tortious liability, an individual is accountable depending on the harms caused, whereas, in strict liability, there is complete liability where an individual is legally accountable for damages even if he was not careless.
Furthermore, tortious liability aids the liability mechanism more than the strict liability because it encourages the parties involved to search for more information concerning the damages to either file for the claim or protect themselves against it. Although strict and tortious liability are both civil liabilities, strict liability is often connected to ultra-hazardous activities, for example, blasting, while tortious liability entails proof of injury or assault. In most cases, strict liability does not need proof (Gordley & Mehren, 2006).
Conclusion
This paper has explained that civil law is different from criminal law as it deals with law torts such as negligence torts where individuals and organizations are held liable for recklessness, which causes harm and damages to persons or property. Several liabilities such as tortious liability and vicarious liability have been discussed while exploring their differences in different circumstances. Each liability is only applicable according to its nature – for example, strict liability is prevalent in hazardous situations while employees’ liability applies to employee damages. Nevertheless, all these types of liabilities are centred on how the law deals with damages, the circumstances that led to harm or injuries, the person to be held liable for the damages, how they could have been avoided and who is to pay for the damages. Tort liability should be reformed to lessen tort litigation or harm. This will only be achieved with the change in common law in common justice. The courts should also be able to address a difference between the primary and vicarious liability since it has caused some indistinctness in modern law. Although the distinction between the two is theoretically clear, applying it, has in some cases, been proven difficult.
References
BPP. (2010) Business Law. London: BPP Learning Media Ltd.
Emerson, W.R. (2009) Business Law. 5th ed. New York: Barrons Educational Series.
Fishman, S. (2008) Working for Yourself: Law and Taxes for Independent Contractors, Freelancers, and Consultants. 7th ed. Berkeley: Nolo.
Gordley, J. and Mehren, A.T. (2006) An Introduction to the Comparative Study of Private Law. Cambridge: Cambridge University Press.
Johnston, A., Deaki, S., and Markesinis, B. (2007) Markesinis & Deakin’s Tort Law. 6th ed. Oxford: Oxford University Press.