Vicarious Liability

The Law of Tort

What is meant by Tort?

The law of tort is defined as a body of rights, obligations and remedies that is applied by courts in civil proceedings to provide relief for individuals or victims (claimant or plaintiff) who have suffered harm from the wrongful acts of others (defendant).

Tort should immediately be distinguished from two other kinds of law, notably criminal law and contract law.

Criminal Law

Criminal Law is concerned with crimes committed against the state which are punishable by either a fine or imprisonment. Tort is between individuals with the primary remedy being that of damages paid from one individual to another for the damage that they have suffered.

Criminal Law is presided over in the criminal courts whereas tort law is presided over in the civil courts.

Contract Law

Contract law is concerned with contracts between two parties which come in the form of an agreement between those two parties. The law of tort on the other hand is imposed by the law irrespective of what either party desires to be the case.

Similarities

There is however similarities between the systems of law, most notably with criminal liability in tort it is also imposed by the state and with contract the way in which compensation or damages is used as an appropriate remedy.

There can also be cases where actions can be brought both in a criminal action and a civil action. The offences against the person such as assault and battery can both be brought as a criminal and civil action.

Individual Parties

Parties which can bring an action in the law of tort

Any individual can sue using the law of tort. There is the potential for children, children who are born with disabilities due to harm inflicted prior to birth and even husband and wife to sue each other. These are some examples of the way the law has been developed to include certain individuals.

Parties who an action can be brought against

The following are examples of parties who can have an action brought against them in the law of tort:

• The Crown
• Companies – they are viewed as legal persons for the purpose of tort
• Employers
• Employees
• Independent Contractors
• Occupiers of Premises
• Individuals who have caused damage to another’s reputation
• Dangerous drivers
• Individuals in the medical profession
• Occupiers of recreational premises

What are the elements of the Law of Tort?

There are four elements to a tort, each of which needs to be present for a remedy to be provided. They are as follows:

1. Duty of Care

2. Breach of the Duty

3. Causation

4. Damage or Injury

Duty of Care

For a tort to occur the defendant for an action must owe a legal duty to the victim of the tort. The obligation of duty is legally enforceable and requires an individual to exhibit behaviour which is of a certain standard. In most cases this is concerned with what an ordinary person would do in that situation with the general duty often being to prevent foreseeable injury or damage to a victim.

Breach of Duty

For a tort to occur the defendant for an action must have breached the duty that was legally imposed on him.

Causation

The breach of the legally imposed duty must have caused damage or injury, whether directly or indirectly to the victim.

Damage or Injury

There must be damage or injury. This does not necessarily have to be physical damage or injury it could be monetary or often emotional distress or embarrassment are included.

Negligence

The tort of negligence is probably the most famous tort and can be found in such areas as the driving of automobiles to the administering of medical practices. For a claim of negligence to be found in these areas the following thus needs to be established:

• Duty of care
• Breach
• That the breach of the duty of care caused the damage or injury to the victim

Economic Torts

Economic torts are defined as torts that have inflicted pure economic loss and which are not concerned with physical damage or injury to another person. One of the best examples of an economic tort happening in the course of business is that of passing off whereby an individual or business attempts to pass of their goods as the goods of another relying on the substantial goodwill associated with the original product or goods.

Remedies

For a tort action there are two principal remedies which are as follows:

• Damages
• Injunction

Damages

• This means that the defendant must be fully compensated for his loss. Damages can be broken down into the following subcategories:
• Nominal – tort has been committed but the victim has suffered no loss
• Contemptuous – where the claimant is successful but the court considers that it should not have been brought and was without merit. A very small or derisory amount of damages will be ordered in this case.
• General – these come from torts which are actionable as a matter of course and so damages are not pleaded in the case
• Special – the claimant must plead these damages as part of the action and prove that the damage was in fact suffered
• Aggravated damages – if the court feels that the tort was committed in a malicious manner, i.e. to harm the claimant’s character or question his dignity then aggravated damages may be awarded
• Exemplary or punitive damages – these may be put in place when the court feels that the action committed by the defendant is shocking and an example needs to be made of them. This may be the case when servants of government commit certain torts.

Defences

The following are defences to tort actions:

• Vicarious Liability
• Contributory Negligence
• Volenti Non Fit Injuria

Vicarious Liability

This is where the tort was committed by an employee while he was undertaking his duties or employment, i.e. that there was a close and direct connection with the harmful act committed by the employee and what he was employed to do.

Date: 2016-04-22; view: 962