The basic liability imposed in any business could be in the form of Contractual liability and/or Tort Liability. The former is the liability arising from the violation of the rights or clauses of the contract between the parties, while the latter is the violation of the rights of the other party, not arising out of any explicit relationship (Tort Law, 2015). It generally a civil wrong in a business. Tort law Another important element of Negligence and vicarious liability also holds great importance in the business world (The British Law, 2016). Negligence is essentially not agreed to between the parties, however it is imposed by operation of law, whereas, Vicarious liability in the business world implies liability imposed on the employer for the acts of the employees.
The present report shall analyze the aspects of Tortious Liability with contractual liability on the basis of the given scenarios. Further the report shall throw light on the nature of liability under the concept of Negligence followed by which the application of vicarious liability shall be assessed in a business world. Lastly, the defences available against the mentioned liabilities shall be discussed.
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'Ferme La Bouche'
Tortious Liability with contractual liability
Tort Liability in a business relation is the application of common law for a conduct which accounts to be a civil wrong. It becomes applicable by operation of law, and demands damages to one party from the other who has committed a civil wrong. The plaintiff under such a suit shall be entitled to non-liquidated damages (Tort Law, 2016). On the other hand contractual liability arises in the event, there is existence of some privacy between the parties due to a legal relationship clearly defining the rights and duties between the parties. As against this the existence of privacy in tortious relationship is very weak, and damages under Tort law are paid against the will of the wrong doer. However, in the case of contract such a situations are generally stipulated within the clauses and the parties agree to compensate or pay un-liquidated damages to the other in the case of some negligence or breach (Introduction to English Tort Law, 2016).
In the given scenario there are various parties, out of which the rights and liabilities of Alice, Chez Bouche and Destiny media shall be analyzed. According to the facts Alice and Bertram Boise from Destiny Media visit Chez Bouche owing to the great reputation they have earned in the market. Hence, in such a event there arises an obligation on the part of Chez Bouche to provide the best of the services and maintain a standard of care throughout its services. As against the same the restaurant provided such chocolate mousse, that Alice spatted out the mousse to only learn that it contained insects. This further led to a nervous shock to her and a very deteriorated health. It is the prime responsibility of the restaurant to provide good and healthy food. Hence, in such an event there arises a Tortious liability of Chez Bouche to pay damages. The House of Lords, decided on similar facts in the case of Donoghue v. Stevenson (1932), wherein for the first time it recognized the concept of negligence as a Tort. The plaintiff of the case had not purchased the drink and so could not establish the contractual relationship for the claim of negligence. However, Lord Atkins for the first time took a view that the defendant of the case was still liable for the integrity of the product he is supplying. Similarly, in the present case Chez Bouche is responsible for integrity of the food items it is supplying to the customers, even in absence of any direct or contractual relationship. Hence, it can established that Chez Bouche is Tortuously liable.
The defence that the insect might have come from the kitchen or supplier cannot be considered and does not change the position of their liability. It is important to note that the customer visits relying on the reputation of Chez Bouche, the acts of the supplier and the kitchen staff does not matter. It is their responsibility to assure that a fine meal is provided to people. As per the given facts Chez Bouche lacks in maintaining the standard of care and has committed an act of negligence by providing such a food. Hence, there arises a Tortious Liability of Chez Bouche to pay damages to the Destiny Publishing , who had to pay the bill in such a situation.
Nature of Liability
The nature of liabilities for an act of negligence may vary from case to case. Negligence can be in the form of 'gross negligence' or 'ordinary negligence' and accordingly the level of liability may differ. (Negligence, 2016) Negligence is fundamentally the failure to maintain the required standard of care for prevention to injure others. The liability can arise in the nature of absolute/strict liability or vicarious liability. The former arises if the act is so gross/fatal in nature that it has caused irreparable harm to others, while the latter is the liability imposed on the principal or the employer for the negligent acts undertaken by their respective employees or agents (Tort Law, 2015).
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In the instant case, Chez Brouche is vicariously liable for the misconduct of providing bad food to Alice, on behalf of the staff was serving the food or who had prepared the food. The restaurant had the legal duty to exercise reasonable care in its services, which it had clearly failed to exercise because of its employees as bad food was provided, due to which Alice had to suffer injury in the form of bad health. Another element which exists in the facts of the case is that of proximate cause. In other words, the sudden bad health of Alice was due to consumption of the infected food and hence there exists a direct link between the two. The defence being relied upon by the Chex Bouche that Alice had consumed wine before the meal is not enough as the proximate cause is clearly established in the sequence of the events. According to ratio decendi of Donoghue v Stevenson, the manufacturer, serving directly to the customers, owes a duty to undertake a reasonable care of the products it is supplying. There is a duty of care on each such manufacturer, against the end users. Hence, the same ratio can form the basis of protecting the consumers in the present case from the negligent act of Chez Bouche. The court also described the princicple of “neighbour” as people directly and closely affecting each other. It was opined by the court that a person should undertake an act or omit an act, reasonably foreseeing its impact on the neighbour. Hence, applying the same rule in the present act Chez Bouche is shall be held responsible for the bad health of Alice. It is also important to highlight that the court Therefore, it is a clear case of negligence making Chez Bouche vicariously liable to pay the damages.
Vicarious Liability is not a Tort, rather a principle or method to impose the liability of one over another. The wrongdoer also termed as tortfeasor acts on behalf of another person, who shall be made responsible for the negligent acts of the tortfeasor (Outline concept of vicarious liability in tort and discuss the relevance of this principle today, 2016). It is further imperative for the act to be within the course of employment, particularly to make the employer liable.
The fundamental of this rule is that to make the other person liable, the act shall be conducted on behalf of that other person by an individual. Hence, in the case of employment, the staff members should have acted within their scope of employment to make their employer vicariously liable. However, it is important to establish the relation between the two parties and for the same Control Test was evolved. In Performing Rights Society v. Mitchell & Booker Ltd. (1924), the court opined on a similar issue and distinguished between 'contract of service' and 'contract for service'. The case in hand was one with contract for service where the employer had provided for a space to perform but the band had exclusivity of service. Hence, in this case the employer could not be held responsible for the acts of the band. On the other hand, in the even the master/employer gives detailed instructions to the agent/employee to perform an act under their supervision, the contract of service is considered to exist and so the employer/master can be held responsible (Vicarious Liability – the two – stage test, 2014). To provide a more clear stand on the issue Lord Denning in Stevenson, Jordon and Harrison Ltd. v MacDonald and Evans (1952) proposed the Integration or Organization test. The test would determine if the activities of an individual/employee were integrated into the business or were just acting as an accessory. Finally, Lord Mackenna in Ready Mixed Concrete (South East) Ltd. v. Minister of Pensions (1968) propounded the Economic reality or multiple test. It would consider the facts such as if the employee is taking wages for providing skills, the level of control over the activities of employee, and finally if the other terms are in line with contract of service (Vicarious Liability – Types of claim, 2016). Hence, application of the concept and the laid down tests clearly demonstrate Chex Bouche as vicariously liable.
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The assignment has enabled to understand and analyze the various aspects of Tort Law in the form of Negligence, Vicarious Liability etc. on the basis of the facts in the given scenario. Hence, it can be inferred from the gained knowledge that Law of Tort finds great significance and application in the world of business.
- Defences to Negligence, 2012. [PDF].
- Introduction to English Tort Law, 2016. [PDF].
- Negligence, 2016. [Online].
- Outline concept of vicarious liability in tort and discuss the relevance of this principle today, 2016. [Online].
- The British Law, 2016. [Online].
- Tort Law, 2015. [PDF].
- Tort Law, 2016. [Online].
- Vicarious Liability – the two – stage test, 2014. [Online].