aspects of contract and negligence

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Aspects of contract and negligence

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2 Nature of liability in negligence

Every party that enters into a contract is required to fulfill all the terms and conditions along with the duty of care to manage the claims against tort and negligence. Every party needs to exhibit a certain amount of duty of care among their actions so as to keep away from the liabilities and charges that are made under breach of such duty.

The rights of public can be safeguarded on the basis of such legal regulations that are being imposed over the parties that are acting under contracts and agreements. When any person or a party is unable to fulfill the requirements of these agreement or acts in breach of them then they might act under the negligence principles.

The basic concept behind the liability in negligence is the people are required to exhibit certain care through their actions, when they can have potential harm to other people.

Contrast liability in tort with contractual liability

The liability under a contract is one that occurs when any of the party under contract involves in breach of it. The breach of contract may not have any defined reason or purpose that is to be followed.

The liability under tort arises due to the act of negligence from the side of concerned parties. It

can be better understood as the parties that does not consider or care about their actions than the

liability is said to be in tort.

The parties under contract can sue the other party in terms of liability while the parties under tort

liability may or may not be claimed. All the contracts and agreements that are being considered

must have a willingness to perform their duty and bind legally.

Contd...

In case of tortuous liability, the opposing parties cannot claim for the amount due to the application of aspect of negligence. In making claims within the contractual liability, the parties do not need proofs but only requires identifying the terms and conditions of the contract.

Further in tort liability, the parties need to define the negligence from other party else they would not be liable

to damages. Similarly in Case 1, when Mrs Donoghue claimed against the manufacturer, it became the clause

of tort liability as it was an act of negligence from the side of manufacturer.

Furthermore, the argument from the defendant party described that the whole duty of care was to be performed

by the producer of the drink. This involves various issues like negligence under tort against the customers that

are being served with the drink and the breach of duty of care as well.

Further in case 2, Mr. Newell is claimed to be sued against the act of negligence where he opposes that he is

not liable for the punishment and his owner is responsible under Occupier's liability act.

2 Nature of liability in negligence

Every party that enters into a contract is required to fulfill all the terms and conditions along with the duty of care to manage the claims against tort and negligence.

Every party needs to exhibit a certain amount of duty of care among their actions so as to keep away from the liabilities and charges that are made under breach of such duty.

The rights of public can be safeguarded on the basis of such legal regulations that are being imposed over the parties that are acting under contracts and agreements. When any person or a party is unable to fulfill the requirements of these agreement or acts in breach of them then they might act under the negligence principles.

The basic concept behind the liability in negligence is the people are required to exhibit certain care through their actions, when they can have potential harm to other people. If they fail to do so they are said to be liable under act of negligence.

Contd...

Liability in this case is refereed to as the amount or compensation that the party is required to pay in acting negligence of duty of care. Further the liability of the complainant party relies on the nature of damage or injuries. This defines that in many cases the parties are not liable to pay for monetary damages. Furthermore the plaintiff also needs to prove the damage or injury in terms of bringing claims to the defendant party. Negligence is concerned with the act of carelessness in offering duty of care and in breaching of that duty to provide better support and concern to the people under them.

3. Elements of tort of negligence

There are certain elements that are defined as per the nature of act done under negligence and thus, requires to understand the claims that are made under liabilities of some of the aspects that are considered under the act of liability are:

Duty of care: This describes the duty of every party involved to be liable for each of their actions. This liability is related with the actions of the party that may have an impact over any of the neighbors of party related with them. It is all about showing some responsibilities towards the individuals in legal terms.

Breach of duty: This is a significant aspect that is to be considered in a contract that defines the need of one party to manage the legal binding of the contract till it ends up. All the terms and conditions of the contract must be considered and fulfilled as per the agreement and if a party fails to do so, it is said to involve in breach of duty. If a party fails to meet all the terms and obligations of the contract then it is said to suffer from claims by the other party.

Causation: It is related with defining the reasons for what the parties are supposed to pay the damages. The party that is found to act under negligence is required to fulfill the claims of injured party

Remote damages: this aspects defines that the complainant party can claim for only those damages that can be proved or seen by the defendant party and are under the area of actions.

4. Defences under negligence

There are certain defense that can be presented by the defendant party to save themselves from the liabilities or claims of the plaintiff. If these defense are provided then the act of negligence can be ignored over their actions.

Contributory negligence: This defines that the defendant did not had much or any contribution in the act of negligence and thus the defendant is not liable to pay any damages. This can be linked with case 2 where Mr. Newell acts under contributory negligence.

Justified: This defines the act of negligence of the defendant party must be ensured and justified by the court that will make it acceptable. Here in case 1 the court does not accepts the liability of Stevenson, the manufacturer to be liable to pay the damages. Further the actions of the producer were found to be justified by court in involving in act of negligence.

Necessary: If the defendant party is required to perform the particular actions for which it has been made liable against damages, then it can be exempted from the liability under negligence.

Illegality: If the act of negligence by the defendant is taken up to ban any illegal activity that the defendant I not at all made liable to pay the damages claimed by the plaintiff.

5. Vicarious liability of business

Vicarious liability of the business is defined as the liability of the business owner in paying the damages of the plaintiff. It is indirectly a way to shift the liability to another party and a situation when another party is considered liable fro the actions of others.

This defines the party to be liable in paying the damages under which the defendant has been acting. In a business scenario, for the acts of negligence of employees, the employer is liable to pay the damages as per the act of vicarious liability. The employer in such cases is made liable if the employees have been performing the act of negligence during the course of employment.

As given in case 2, it is completely related with the act of vicarious liability that involves Occupier's liabilities act defining the responsibility of employer upon the actions of his employees. Here, according to case Mersey Docks and Harbour Board v Coggins & Griffiths (Liverpool) Ltd, 1946 , the company has been involved in hiring employees and equipments for activities of loading and unloading.

Here the employee gets injured by an accident and the incident occurred due to negligence from his side. Further Mr. Newell’s also described that he was not under any control and did not took orders still the employer i.e. Coggins & Griffiths (Liverpool) Ltd, board was found to be vicariously liable against the actions of Mr. Newell’s and were made to pay the damages.

References Croke, E. M., 2003. Nurses, Negligence, and Malpractice: An analysis based on more than 250 cases

against nurses. AJN The American Journal of Nursing. 103(9). pp. 54-63.

Díaz, P. G. V. and et. al., 2012. Contractual and quality aspects on warranty: Best practices for the warranty management and its maturity assessment. International Journal of Quality & Reliability Management. 29(3). pp. 320 – 348.

Kantarelis, D., 2008. Internalization of costs, liability and negligence, performance and reliance. International Journal of Law and Management. 50(6). pp. 274 – 284.

Elliott, C. and Quinn, F., 2013. Tort Law. Pearson.

Horsey, K. and Rackley, E., 2013. Tort Law. Oxford University Press.Bhadbhade, N., 2010. Contract

Law in UK. Kluwer Law International.

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