Common Law – Taha Miyasaheb

TORTUOUS LIABILITY
1. Define Tort and write a note on differences between
contractual and tortuous liability.

Ans. A tort, in common law jurisdictions, is a wrong that involves a breach of

a civil duty (other than a contractual duty) owed to someone else. It is
differentiated from a crime, which involves a breach of a duty owed to society
in general. Though many acts are both torts and crimes, prosecutions for crime
are mostly the responsibility of the state, private prosecutions being rarely
used; whereas any party who has been injured may bring a lawsuit for tort. One
who commits a tortious act is called a tortfeasor. The equivalent of tort in civil
law jurisdictions is delict.

The term tort is the French equivalent of the English word ‘wrong’ and of the
Roman law term ‘delict’. The word tort is derived from the Latin word tortum
which means twisted or crooked or wrong and is in contrast to the word rectum
which means straight. Everyone is expected to behave in a straightforward
manner and when one deviates from this straight path into crooked ways he
has committed a tort. Hence tort is a conduct which is twisted or crooked and
not straight. As a technical term of English law, tort has acquired a special
meaning as a species of civil injury or wrong. It was introduced into the English
law by the Norman jurists.

Tort now means a breach of some duty independent of contract giving rise to a
civil cause of action and for which compensation is recoverable. In spite of
various attempts an entirely satisfactory definition of tort still awaits its master.
In general terms, a tort may be defined as a civil wrong independent of
contract for which the appropriate remedy is an action for unliquidated
damages. Some other definitions for tort are given below:

Winfield and Jolowicz said that tortuous liability arises from the breach of a duty
primarily fixed by law; this duty is towards persons generally and its breach is
repressible by an action for unliquidated damages.

Salmon and Hueston said that a tort is a civil wrong for which the remedy is a
common action for unliquidated damages, and which is not exclusively the
breach of a contract or the breach of a trust or other mere equitable obligation.

Sir Frederick Pollock said that every tort is an act or omission (not being merely
the breach of a duty arising out of a personal relation, or undertaken by

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contract) which is related in one of the following ways to harm, suffered by a

determinate person.

a) It may be an act which, without lawful justification or excuse, is intended by

the agent to cause harm, and does cause the harm complained of.
b) It may be an act in itself contrary to law, or an omission of specific legal
duty, which causes harm not intended by the person so acting or omitting.
c) It may be an act violation the absolute right (especially rights of possession
or property), and treated as wrongful without regard to the actor’s intention or
knowledge. This, as we have seen is an artificial extension of the general
conceptions which are common to English and Roman law.
d) It may be an act or omission causing harm which the person so acting or
omitting to act did not intend to cause, but might and should with due diligence
have foreseen and prevented.
e) It may, in special cases, consist merely in not avoiding or preventing harm
which the party was bound absolutely or within limits, to avoid or prevent.

A tort is an act when person becomes injured in some way, and for which the
injured person may sue the wrongdoer for damages. Legally, torts are called
civil wrongs, as opposed to criminal ones. Under traditional law, family
members were prohibited from suing each other for torts. The justification was
that allowing family members to sue each other would lead to a breakdown of
the family. Today, however, many states recognize that if family members have
committed torts against each other, there is already a breakdown in family
relationships. So, they are no longer bar members from suing each other. In
these states, spouses may sue each other either during the marriage or after
they have separated.

Torts may be committed with force, as trespasses, which may be an injury to

the person, such as assault, imprisonment; to the property in possession; or
they may be committed without force. Torts of this nature are to the absolute
or relative rights of persons, or to personal property in possession or reversion,
or to real property, corporeal or incorporeal, in possession or reversion: these
injuries may be either by nonfeasance, malfeasance, or misfeasance.

There is no entirely satisfactory definition of tort. The principle of the tort is that
the law gives various rights to persons, such as the right of a person in
possession of land to occupy it without interference or invasion by trespassers.
When such a right is infringed the wrongdoer is liable in tort. The law of tort is
concerned really with a person’s responsibility to others. It applies to both,
individuals and companies.

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There is therefore a duty imposed by law to respect the legal rights of others.
When a tort is committed the remedy is an action at common law for damages
not established by a formula in a contract which represent such compensation
as the court may see fit to award. The principle of tort is based on rights, the
related duty to respect them and compensation for infringement

If a claimant has suffered damage but no legal wrong has been done, he will
not succeed in his action. If a legal wrong has been done but no damage has
been suffered, damages may be awarded in some cases, but they may be only
nominal.

For example:-

Electro chrome v Welsh Plastics 1968

The facts: the defendant‘s lorry, driven carelessly, crashed into a fire hydrant.
As a result the water supply to the claimant’s factory nearby was cut off. The
factory had to close until the supply was restored. The claimant claimed
damages for his loss.

Held: the fire hydrant was not the claimant’s property and. So in spite of his
loss, no legal wrong had been done to him for whom he could hold the
defendant liable.

Tortuous Liability.

The role of defenses in the law of tort is to limit the liability of the defendant or
in some cases exonerate the defendant completely from tortuous liability.
Some defenses to tortuous liability include contributory negligence, consent
and illegality. Until recently, common employment was recognized as a defense
until it was abolished by the Law Reform (Personal Injuries) Act 1948.

Today the Court will normally apportion responsibility for the loss between the
plaintiff and defendant wherever the defendant successfully raises the defense
of contributory negligence, i.e. that the plaintiff contributed to his loss or injury
or damage. Even after the occurrence of the injury or tort, what the plaintiff
does may still amount to contributory negligence and may have the effect of
reducing the damages but he many ultimately recover from the defendant. The

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plaintiff owes himself a duty to mitigate his loss and not to aggravate his injury.
Indeed, a plaintiff who has suffered damage in consequence of an accident for
which the defendant is wholly responsible and may be found guilty of
contributory negligence, although his conduct in no way contributed to the
accident itself. If his act or omission contributed to the nature or extent of the
injuries which he has sustained as a result of the accident.

For example:-

If a motor cyclist who fails to wear a crash helmet in circumstances where a

prudent road-user would do so and who is injured in an accident, may be held
in part responsible for the injuries which he would not have received if he had
been wearing a helmet, even though he was in no way to blame for the
occurrence of the accident.

By the decision of the English Court of Appeal (Civil Division) in the case of
O’Connell Jackson (1971) 3 ALLER. 129. In the above case, the failure of the
plaintiff to wear a crash helmet was held to constitute contributory negligence
and accordingly led to a reduction in the compensation awarded to the plaintiff
by the Lower Court on the basis of full liability. And by also the provisions of
Section 4 of the Law Reform (Contributory Negligence) Act 1948, which states
that, "where any person suffers damage as the result partly of his own fault
and partly of the fault of any other person.

Contractual liability

Contractual liability is defined as a liability which does not arise by the way of
negligence, but by assumption under contract or agreement. Although it is
frequently misunderstood, that this type of liability is critical in the insurance
and risk management industries. It is common in business agreements (written
or oral), for one party to assume the liability of another. This is sometimes
referred as a hold harmless agreement. The full extent to which one holds
another harmless varies from project to project, contract to contract, job to job
and so on. To assume liability of another is risky and increases our exposure to
loss. This is why insurance is required. Contractual liability insurance is usually
provided with commercial liability insurance - but we should always ask our
agent to make sure about some exceptions and limitations, so we should ask
your agent and thoroughly read through our policy so that we know what is and
what is not covered.

Outside of insurance, contractual liability has a broad meaning - it's basically a

promise that may be upheld in court. For example, say you agree to build
someone a deck for $600 and collect $300 as a retainer prior to starting the
job. In the meantime, a higher paying project comes along and you never show

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up to put on the deck. The other party can take you to court and collect the
original $300 that they paid you. You were in breach of contract and therefore
they had a justified contractual liability claim.

There is more freedom in contractual law where as in tortuous liability it is

more of imposed nature. The claimant will receive compensation for damages
and expected earnings in the case of contract liability where as the claimant
can only claim damages as in the case of tortuous liability. There is more
privacy in the contract in the case of contractual liabilities as the parties who
are involved in the contract are the one who can actually sue for damages as in
the case of ATKIN V SOUNDERS (1942) whereas in tortuous liabilities any
one as a third party who had suffered losses or damages can claim
compensation from the defendant.

There is more freedom in contractual law where as in tortuous liability it is

more about imposed nature. The claimant will receive compensation for
damages and expected earnings, as in the case of contract liability where the
claimant can only claim damages and in the case of tortuous liability, there is
more privacy in the contract as there is in the case of contractual liabilities as
the parties who are involved in the contract are the one who can actually sue
for damages. Where as in tortuous liabilities any one cannot sue, but the one
which has received damages can only sue for damages from the defendant.

Q.2 Advice CTC and in light of decided cases explain

the principles of Occupier’s Liability.

Ans. According to the Occupiers Liability Act 1957 CTC can claim against both
Score Bowling and the Firm for the damages caused to their materials as well
as any injury caused to Mr. Harrison the contractor of CTC as he slipped on the
stairs due to faulty railing.

CTC had brought their materials only after the green light shown from the
Score Bowling and though their material was damaged by the rain water which

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entered the building through an imperfectly completed door way by the Firm.
Even after their material getting damaged, their contractor met with an injury
caused due to the faulty railings for which CTC can claim too.

For better understanding the Occupiers Liability Act 1957

Occupiers' liability is a field of tort law, codified in statute, which concerns the
duty of care that those who occupy (through ownership or lease) real property
owe to people who visit or trespass. It deals with liability that may arise from
accidents caused by the defective or dangerous condition of the premises. In
English law, occupiers' liability towards visitors is regulated in the Occupiers'
Liability Act 1957. In addition, occupiers' liability to trespassers is provided
under the Occupiers' Liability Act 1984. Although the law largely codified the
earlier common law, the difference between a "visitor" and a "trespasser", and
the definition of an "occupier" continue to rely on cases for their meaning.

For example:-

Wheat v E Lacon & Co Ltd [1966] 1 All ER 582 is a decision by the Judicial
functions of the House of Lords concerning the definition of "occupier" for the
purposes of Occupiers' Liability Act 1957. The leading speech in the case was
delivered by Lord Denning, during his short tenure as a Law lord.

Facts - The defendants were a brewery house. The managers of the brewery
house, Mr. and Mrs. Richardson, lived on the premises and occupied a private
portion there. Wheat, a paying guest, fell down the stairs of that private part of
the premises and was killed, because there was no handrail on part of the stairs
and someone had removed the light bulb on the stairway. Mr. Wheat's estate
sued the brewery under the Occupiers' Liability Act 1957.

Judgment - The main legal issue before the Law Lords was whether the
brewery fell within the scope of the Act as "occupier". The leading speech was
delivered by Lord Denning. He defined the "occupier" as a person who has
sufficient control over the premises to the extent that he ought to realise that
lack of care on his part can cause damage to his lawful visitors. The duty may
be shared between several occupiers, who will be jointly and severally liable to
the visitors if they both fail to exercise the due care, causing injury. If the
property is let, the owner will be considered occupier to all parts of the
premises that are not let by demise, such as the common staircase. Where the
owner did not let by demise, but merely licensed the property (i.e. allowed
another person to live on it), he will be considered occupier of the entire space
because he would retain the right and the duty to do repairs. In both cases he
will be occupier jointly with the tenant. A contractor doing work on the
premises can also be classed as occupier in certain circumstances, whether or
not jointly with the owner.

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In this particular case, the brewery and Mr. and Mrs. Richardson (the brewery’s
licensees) were all three occupiers. However, they all had different duties of
care towards the visitors, depending on how much control they exercised. In
this case, the owners were responsible for keeping the handrail safe and the
lighting system maintained. However, the handrail could not reasonably
considered dangerous provided there was light and the lack of light was caused
by an unknown stranger taking out the light bulb. Consequently, the
respondents did not fail in their duty as occupiers towards their visitors and
were not liable.

This Case just justifies that CTC can claim over the Score Bowling as well as the
Firm.

Principles of Occupier’s Liability are as follows:-

1. The rules enacted by the two next following sections shall have effect, in
place of the rules of the common law, to regulate the duty which an occupier of
premises owes to his visitors in respect of dangers due to the state of the
premises or to things done or omitted to be done on them.

2. The rules so enacted shall regulate the nature of the duty imposed by law in
consequence of a person’s occupation or control of premises and of any
invitation or permission he gives (or is to be treated as giving) to another to
enter or use the premises, but they shall not alter the rules of the common law
as to the persons on whom a duty is so imposed or to whom it is owed; and
accordingly for the purpose of the rules so enacted the persons who are to be
treated as an occupier and as his visitors are the same as the persons who
would at common law be treated as an occupier and as his invitees or
licensees.

3. The rules so enacted in relation to an occupier of premises and his visitors

shall also apply, in like manner and to the like extent as the principles
applicable at common law to an occupier of premises and his invitees or
licensees would apply, to regulate the obligations of a person occupying or
having control over any fixed or moveable structure, including any vessel,
vehicle or aircraft; and the obligations of a person occupying or having control
over any premises or structure in respect of damage to property, including the
property of persons who are not themselves his visitors.

4. A person entering any premises in exercise of rights conferred by virtue of

an access agreement or order under the National Parks and Access to
the Countryside Act 1949 is not, for the purposes of this Act, a visitor of the
occupier of those premises.

5. Extent of occupier’s ordinary duty.

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a. An occupier of premises owes the same duty, the “common duty of care”, to
all his visitors, except in so far as he is free to and does extend, restrict, modify
or exclude his duty to any visitor or visitors by agreement or otherwise.

b. The common duty of care is a duty to take such care as in all the
circumstances of the case is reasonable to see that the visitor will be
reasonably safe in using the premises for the purposes for which he is invited
or permitted by the occupier to be there.

c. The circumstances relevant for the present purpose include the degree of
care, and of want of care, which would ordinarily be looked for in such a visitor,
so that an occupier must be prepared for children to be less careful than adults;
and an occupier may expect that a person, in the exercise of his calling, will
appreciate and guard against any special risks ordinarily incident to it, so far as
the occupier leaves him free to do so.

d. In determining whether the occupier of premises has discharged the

common duty of care to a visitor, regard is to be had to all the circumstances,
so that where damage is caused to a visitor by a danger of which he had been
warned by the occupier, the warning is not to be treated without more as
absolving the occupier from liability, unless in all the circumstances it was
enough to enable the visitor to be reasonably safe; and where damage is
caused to a visitor by a danger due to the faulty execution of any work of
construction, maintenance or repair by an independent contractor employed by
the occupier, the occupier is not to be treated without more as answerable for
the danger if in all the circumstances he had acted reasonably in entrusting the
work to an independent contractor and had taken such steps (if any) as he
reasonably ought in order to satisfy himself that the contractor was competent
and that the work had been properly done.

e. The common duty of care does not impose on an occupier any obligation to a
visitor in respect of risks willingly accepted as his by the visitor (the question
whether a risk was so accepted to be decided on the same principles as in
other cases in which one person owes a duty of care to another).

For the purposes of this section, persons who enter premises for any purpose in
the exercise of a right conferred by law are to be treated as permitted by the
occupier to be there for that purpose, whether they in fact have his permission
or not.

6. Effect of contract on occupier’s liability to third party.

a. Where an occupier of premises is bound by contract to permit persons who

are strangers to the contract to enter or use the premises, the duty of care
which he owes to them as his visitors cannot be restricted or excluded by that
contract, but (subject to any provision of the contract to the contrary) shall
include the duty to perform his obligations under the contract, whether

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undertaken for their protection or not, in so far as those obligations go beyond

the obligations otherwise involved in that duty.

b. A contract shall not by virtue of this section have the effect, unless it
expressly so provides, of making an occupier who has taken all reasonable care
answerable to strangers to the contract for dangers due to the faulty execution
of any work of construction, maintenance or repair or other like operation by
persons other than himself, his servants and persons acting under his direction
and control.

c. In this section “stranger to the contract” means a person not for the time
being entitled to the benefit of the contract as a party to it or as the successor
by assignment or otherwise of a party to it, and accordingly includes a party to
the contract who has ceased to be so entitled.

d. Where by the terms or conditions governing any tenancy either the landlord
or the tenant is bound, though not by contract, to permit persons to enter or
use premises of which he is the occupier, this section shall apply as if the
tenancy were a contract between the landlord and the tenant.

e. This section, in so far as it prevents the common duty of care from being
restricted or excluded, applies to contracts entered into and tenancies created
before the commencement of this Act, as well as to those entered into or
created after its commencement; but, in so far as it enlarges the duty owed by
an occupier beyond the common duty of care, it shall have effect only in
relation to obligations which are undertaken after that commencement or
which are renewed by agreement (whether express or implied) after that
commencement.

3. Is the milkman’s employer vicariously liable; write

your arguments for and against the defense.

Ans. The parents can held the claim against milkman’s company for the
damages even though the milkman was employed just to express prohibition
by the company. The boy who the milkman took along with him on his milk
round wasn’t employed by the company nor was any contract made with the
boy. The injury was caused partly by boy’s carelessness and by milkman’s
negligent driving. Hence the parents of the boy should claim against the
milkman and not with company who employed him.

OR

The parents can claim from the company even though their boy wasn’t the part
of the contract as the employer is vicariously liable for the action done by the
milkman.

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For example:-

Employers may be held vicariously liable for unauthorized acts of an employee,

as long as the acts could be regarded as a mode (although an improper one) of
performing the normal tasks of the employment.

Background
Mr. Starks, a patron at the Bondi Hotel, was requested to leave the premises by
a security guard. When he challenged the security guard's request, he was
head-butted.
Mr. Starks took exception to this treatment and subsequently claimed damages
for his injuries against the security guard, the security guard's employer, the
owner/occupier of the hotel and the hotel's licensee.

At first instance, the trial judge found that the security guard was liable, but
rejected the claims against the employer, the owner/occupier of the hotel, and
the hotel's licensee.

Decision on appeal
On appeal, a Full Court of the New South Wales Supreme Court held that the
employer was vicariously liable for the security guard's actions, but that the
owner/occupier of the hotel and the hotel's licensee were not.

Hence from the above case we can conclude that the employer is vicariously
liable.

Q.4 Write a note on different types of tortuous liability.

Ans.The different types of tortuous liabilities are:

• Strict Liability
• Product liability
• Negligent Liability

Strict Liability

Strict liability is a legal doctrine that makes some persons responsible for
damages their actions or products cause, regardless of any "fault" on their part.

Strict liability often applies when people engage in inherently hazardous

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activities, such as doing "blasting" in a city, or keeping wild circus animals. If

the blasting damages you -- no matter how careful the blasting company was --
it is liable for the injury. Similarly if the animals escape and injure someone, the
fact that the circus used the world's strongest cages and the highest standard
of care imaginable will not let it get off the hook.

Strict liability also may apply in the case of certain manufactured products. In
strict product liability, typically anyone who is engaged in the stream of
commence of the product (from the manufacturer to the wholesaler to the
retailer, or all of them) can be held responsible if the product was defective and
someone was injured. There is no need to prove negligence but the injured
party must prove that the product was defective.

Product Liability

Product liability is the area of law in which manufacturers, distributors,

suppliers, retailers, and others who make products available to the public are
held responsible for the injuries those products cause.

Types of product liability

There are three major types of product liability claims:

• Manufacturing defect
• Design defect
• A failure to warn.

However, in most states, these are not legal claims in and of themselves, but
are pleaded in terms of the theories mentioned above. For example, a plaintiff
might plead negligent failure to warn or strict liability for defective design.

Manufacturing defects are those that occur in the manufacturing process and
usually involve poor-quality materials or shoddy workmanship. Design defects
occur where the product design is inherently dangerous or useless (and hence
defective) no matter how carefully manufactured. Failure-to-warn defects arise
in products that carry inherent no obvious dangers which could be mitigated
through adequate warnings to the user, and these dangers are present
regardless of how well the product is manufactured and designed for its
intended purpose.

Negligence Liability

Negligence is the failure to exercise the required amount of care to prevent

injury to others. For example, if you cause an accident that injures someone or

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damages their vehicle because you were driving at an unsafe speed, then you
could be sued for negligence.

In some cases, the law imposes absolute liability (strict liability) on specific
parties without regard to fault, and, therefore, obviates the need to prove fault
in court. For instance, manufacturers are held strictly liable for defective
products that they manufacture.

Sometimes, the law designates other parties as being responsible, whether

they are or not. Imputed negligence results in vicarious liability, where the
principal is responsible for the acts of his agents. For example, employers have
vicarious liability for the actions of their employees. If an employee injures
someone in the course of employment, then it doesn't matter whether the
employer could have done anything to prevent it—the employer will be held
liable regardless. Other instances of imputed negligence is through the effect of
the family purpose doctrine that holds parents responsible for the negligent
acts of their children, or the dram shop law, which holds the seller of alcoholic
beverages liable for drunken patrons. If a patron drives after drinking at a
tavern, and subsequently kills or injures someone with his vehicle, then the
tavern owner can be held liable.

Sometimes, the act itself determines negligence. Under the doctrine of res ipsa
loquitur, (Latin term for "the thing speaks for itself"), there are some actions so
obviously negligent that the law presumes negligence, such as when a surgeon
operates on the wrong side of the body, and the defendant, in such cases, must
prove that he wasn't negligent.

Insurance can be purchased to protect against lawsuits that arise from strict
liability and from negligence. However, all insurance contracts exclude
intentional torts by the insured, since the insured can easily prevent such torts,
and because, in general, intentional torts by the insured are not insurable risks.

Requirements for Negligence

Most cases of negligence cannot be determined absolutely, for it depends on

many factors. The main measure used to determine whether an act was
negligent is to consider what a reasonably prudent person would do, given the
age and knowledge of the tortfeasor, and other relevant factors.

Before a court will award damages, the presumed negligence must satisfy 4
requirements:

1) There must be a legal duty to perform or to use reasonable care.

2) There must have been a failure to perform that duty.
3) The plaintiff must have suffered an injury or a loss.
4) And the negligent act must have been the proximate cause of the injury.
The proximate cause is a cause that directly caused the loss or suffering;

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if the proximate cause didn't happen, then the harm would not have
happened.

All 4 elements of negligence must be present before a court will award

damages.

Defenses against Negligence

There are various factors that can either prevent a plaintiff from collecting
damages or that will reduce the amount awarded.

Contributory negligence is negligence that is caused by both plaintiff and

defendant. If the plaintiff contributed to his injury, then, in some states, the
plaintiff will be prevented from collecting any damages.

Comparative negligence allows the plaintiff to collect some damages, but it will
be reduced by the amount by which the plaintiff contributed to his own injury.
There are 3 major rules, which differ according to state law and according to
the amount of contributory negligence, that determine the amount that the
plaintiff can collect.

The pure rule reduces the plaintiff's damages by the amount that he
contributed to his injury. Thus, if a plaintiff has been judged to be 30% at fault,
then his reward will be reduced by 30%.

The 49 percent rule requires that the defendant be less than 50% responsible
in order to collect any damages, and any damages awarded will be reduced by
the plaintiff's contribution. Under this rule, only 1 party can collect where both
parties are suing each other.

The 50 percent rule permits the plaintiff to collect damages only if his share of
the negligence is not greater than 50%. In contrast to the 49 percent rule, both
parties can collect 50% of their damages from each other if both are judged to
be 50% at fault. However, if the degree of fault is anything but 50%, then only
1 party will be able to collect damages, just as under the 49 percent rule.

The last clear chance rule modifies comparative negligence by allowing the
plaintiff to collect damages from the defendant, even if the plaintiff contributed
to his injury, if the defendant had a last clear chance to prevent the injury. In
other words, could the defendant have prevented the injury regardless of the
plaintiff's negligence? If the answer is yes, then the plaintiff will still be able to
collect regardless of comparative negligence.

Finally, there is the assumption of risk—one assumes risk by engaging in an

activity that is inherently risky, and, therefore, should not be allowed to collect
damages if an injury results by engaging in the activity. Thus, if one plays
racquetball without wearing goggles, and her opponent hits the ball and injures

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her eye, she will be prevented from collecting damages from her opponent,
because by playing racquetball without wearing goggles, she assumed the risk
that she will suffer an eye injury or even lose an eye while playing.

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References
• www.business.gov.au/.../Harassment+bullying.htm

• www.hsa.ie/.../Safety,_Health_and_Welfare_at_Work_Act_2005/

• www.hse.gov.uk/legislation/hswa.htm

• www.desktoplawyer.co.uk

• www.businessdictionary.com/.../contractual-liability.html

• www.unlockingthelaw.co.uk/.../tort%20law%20chapter%201.pdf

• www.west.net/~smith/strict.htm

• www.law.cornell.edu/topics/products_liability.html

• www.eod.gvsu.edu/eod/engineer/engineer-63.html

• Common Law (course Book)

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