Law plays important roles to protect benefits, obligations and bringing fair for everybody in society. This report gives information about tortuous liability, contractual liability, vicarious liability, the tort of negligence and defences. After that, I can determine liability of person who is responsible when violations as well as providing advices for the legal problems in business of VJSC.
(3.1) Contrast liability in torts with contractual liability Tortuous liability will be applied when occurs the law violation of civil nature that infringes on the rights and legal interests of others as a legal entity or individual. In addition, the rights and legal interests are not specified in the contract between the parties. Contractual liability is the parties sign in the contract based on satisfy about agreement, negotiation and terms of contract. They are completely voluntary to enter into a contract and having contractual liability each other. The tortuous liability and contractual liability have the same point are violations of the law and suffer liability under civil law. The liable party has responsibility for compensation by payments for any losses from their wrong.
– A law violation of non-contractual damages.
– Parties related to the violations which they have no contractual relationship with each other even they are strangers.
– Tort is the basis for generating tortuous liability so the person wronged has responsibility to any persons who are damaged from their behaviour.
– Cannot measure clearly the damages.
– Difficult to determine exactly compensation rate so the compensation will be based on the actual extent of damage occurred.
– A violation of the contents which parties signed in the contract.
– Parties have a close relationship because they have time for agreements and sign the contract together.
– If the breach of contract occurs that the person violated have a contractual liability to the other party of the contract.
– The damages can be quantitative because they are regulated in the contract.
– The compensation under the liquidated damage that means compensation which determined based on the formula and stipulations that the parties have agreed in the contract. (3.2) Explain the nature of liability in negligence & (3.3) Explain how a business can be vicariously liable A human who lives in society must follow the provisions of law is having a duty of care by respecting and protecting the rights and benefit legal of others. Negligence is behaviour which infringes on the rights and legal interests of others. However, these behaviours are not deliberate actions by an individual or entity who did not perform well their reasonable care which bring the consequences of monetary damages or personal injury.
To sue a person who violating behaviour of negligence, the claimant need to prove those factors: Defendant owes the claimant a duty of care.
Defendant breaches the duty of care.
The tort of negligence has to a direct reason that brings damage or loss for the claimant.
Vicarious liability is many people who related to damage occurs will have responsibility for the damage by misconduct. In business, the relationship of employer and employee is an important part of vicarious liability because employers will have the strong financial capacity to compensation to the injured party. Therefore, employer will be the main responsible for damage caused by their employee prescribed by law. After that, the employee has to refund that amount for employer.
There are factors to determine vicarious liability between employer and employee: They have a valid relationship employment between employer and employee. Employee implements the tort act in the course of their work that base on the agreement and requirement of employer.
Case 1: there are two problems occur.
The first problem
The VJSC software company engages SP an event management company to coordinate and provide corporate hospitality for event’s clients. Trinh Van is an employee of SP and he installs equipments needed to serve for event in time constraint so he did not completely testing for all equipments. Unfortunately, an explosion happens causing some guest got minor burns and damage to the software. However, Trinh Van had left the company just one week before the event.
Explain the liability in negligence and vicariously liable of the first problem. The negligent in this case is Trinh Van did not have fully in checking and testing for those things installed in the event. Thus, Trinh Van had violated the duty of care because with the nature of his work that he has a reasonably foreseeable the damage and consequences. Therefore, Trinh Van also breach duty of care because he did not have fully tested so that two damages caused by the explosion are clients of VJSC got minor burns and damage their software.
Although Trinh Van had left SP one week before the event but at the time he performed his work that he still an employee of SP so there was a relationship employment and vicarious liability between Trinh Van and SP. Therefore, SP will have responsibility for damage by explosion and then SP has the right to require Trinh Van refund the amount that SP paid for caused damage of Trinh Van. Follow case Lister and ors & Hesley Hall Ltd 2001 (Course book,2010) Children resident of a boarding school sexual abused by warden. Thus, the school was vicariously liable for warden because the nature of this job is supervise students during learning process which created connection with the acts of abuse.
To compliance with regulations of the duty of care that Trinh Van has responsibility to implement regulations about in checking and testing things installed to make sure that do not have any damage is likely to occur for clients as well as any assets in the area of the event.
The relationship between SP and VJSC is a contractor to perform the event. However, the damage caused by explosion not only for software but also with some guess of VJSC. Otherwise, VJSC is the main subject of the event and they are an occupiers’ liability in the event so they have to ensure the safe for visitors who enter in the event. Moreover, VJSC has work done by SP as an independent contractor so that they also have vicarious liability for damage of guesses.
The second problem.
SP hired a SECurity contractor to protect for performing the event. The security staff’s had a specific instruction not to let anyone without an invitation. In case, someone who tries to enter the event without the invitation so the staff should inform to SP who then contact VJSC staff to attend and resolve the problem. However, Van Dao tried to enter into the event during the commotion and he was caught by Truong La who was SECurity’s staff. The result was Van Dao injured by violenty of Truong La.
Explain the liability in negligence and vicariously liable of the second problem. The regulations of SECurity that if any security guys have problems with people who try to enter without invitation so they should radio a member of SP who then contact VJSC employee to solve that problem. However, Truong La did not follow those regulations of SECurity when Van Dao enter in the event.
As a result of Van Dao tried to unlawfully enter in the event during the commotion that he was twisted the arm and threw to the ground by Truong La so he breached the duty of care. Instead of the tort act, Truong La should hold Van Dao to prevent him enter the event and then inform this problem to member of SP. Truong La had a tort of negligence in work because he has a reasonable foreseeable about damage for his act with Van Dao.
Thus, the SECurity company has a liability for damage of Van Dao because Truong La is an employee of SECurity so there was a relationship employment between them. After that, Truong La has a liability to refund the amount that SECurity paid for caused damage of Van Dao. Base on case Lister and ors & Hesley Hall Ltd 2001 (Course book, 2010)
However, the compensation liability for damage of Van Dao will be reduced because mistake of Van Dao and Truong La were considered as contributory negligence so there are some defences for the tort of Truong La as: Van Dao is a trespasser.
Van Dao can also predict there will be damage to himself in trespassing. Van Dao also has mistake for intentional enter in the event. In this case, even SP hired SECurity company and the relationship between them are contractor but SP is not an occupier of the event. Therefore, SP does not have a various liability with SECurity about the damage of Van Dao.
(4.1) Apply the elements of the tort of negligence and defences in the above different business situations for the legal officer who is assigned to VJSC & (4.2) Apply the elements of vicarious liability in above different business situations for the legal officer who is assigned to VJSC
Bui and Do was to pick Tran Vu up celebrate at petrol kiosk of Vu’s father where Vu works part time because Bui and Do completed of a software project. Suddenly rockets from an organized fireworks display fall into the petrol kiosk and garage forecourt of Vu’s father. It leads to the car of Bui and Do catch fire and two of them escapes but Do was trap short in the car so he felt shock and fainted. In other hand, Vu gets outside the office to save the vintage Vespa as requirement of his father is Tran Cao. However, Vespa was completely destroyed.
Apply the element of negligence and defences and vicariously liable Event organizer will be liable for damage because the duty of care of organising a fireworks display is ensuring that there is no damage about health, safe as well as assets of the other. However, they breached duty of care because the launch mechanism for rocket had wrong assembled by the event organizer but this event was taking place.
Causing by the negligence of event organizer’s that leads to rockets from the fireworks event crashed into petrol kiosk and also catch fire to Bui’s car. After that, the fire spread in a short time so the vintage Vespa of Tran Cao was destroyed. In general, the main damage in this case about assets are petrol kiosk, scooter, car and there is no damage about human because Bui and Do escaped from the fire and they just feel a bit sick.
We can find out defences for event organizer if they properly installed for the rocket’s launch mechanism and make sure that there is no mistakes from fireworks process so we can consider that the accident of Bui, Do, Vu and Tran Cao is an unavoidable accident because event organizer cannot be foreseen or predicted by the exercise of ordinary care for this kind of accident. Based on case Stanley and Powell 1891 (Course book,2010)
The facts: In a shooting party, Powell fired at a pheasant. Unluckily, the bullet hit on a tree and a pellet glanced off a tree that bring injured for Stanley who are a beater of Powell. Decision: The defendant will not have liable with claimant because this accident is no one can anticipate.
However, in the fact of this case that event organiser had not been properly assembled for rocket’s launch mechanism. Therefore, event organiser got mistakes in organizing fireworks process that causes for damage of petrol kiosk, car, scooter and human. In addition, the unavoidable accident just applies to the damage or injury which does not result from negligence. Therefore, we cannot apply defences for event organizer so they will be liable for damage caused by their negligence.
To organize a fireworks display that event organizer will has lots employee for implementing. Therefore, with the damage occurred that lead to vicarious liability between the event organiser and the employee who has responsibility for installation rocket’s launch mechanism because there was a relationship employment between them so the event organizer has a liability for damage caused by their employees.
Beside that, Tran Cao told Tran Vu “take the fire extinguisher, get outside and put the fire out and save the scooter”(Scenario) but Tran Vu cared for the injure of his colleague so the scooter was completely destroyed. In this case Tran Cao is principal and Tran Vu is an agent so between Tran Cao and Tran Vu also exists vicarious liability with the damage of Tran Cao’s Vespa. Therefore, the vicarious liability between Tran Cao and Tran Vu also help the event organizer in reducing liability for damage of scooter because it considered as a contributory negligence from two sides. Follow case Ormrod & Crossville Motor Service 1953 (Course book, 2010) A car owner asked a friend to drive his car to Monte Carlo for his work and then they were going to holiday. However, a damage to claimant’s bus occurred by the friend’s negligent driving. In this case, the friend was driving to Monte Carlo is for the car owner’s purpose so he was vicariously liable with his friend.
From this report, we can realize that anyone in society need to have the knowledge about tortuous liability to know the way to solve law problems in life and business activities. Moreover, we also understand the importance of duty of care as well as the unfortunate consequences of non-compliance of duty of care to remind everyone should more carefully when doing anything.
Business essentials – Supporting HNC/HND (2010) – London: BPP Learning Media Ltd – Aspects of Contract and Negligence for Business Course book, Introduction to types of tort, chapter 12. Business essentials – Supporting HNC/HND (2010) – London: BPP Learning Media Ltd – Aspects of Contract and Negligence for Business Course book, Business and economic tort – Negligence, chapter 13. Business essentials – Supporting HNC/HND (2010) – London: BPP Learning Media Ltd – Aspects of Contract and Negligence for
Business Course book, Business and economic tort – Occupiers’ liability, chapter 13. Business essentials – Supporting HNC/HND (2010) – London: BPP Learning Media Ltd – Aspects of Contract and Negligence for Business Course book, Defences and remedies in tort – Unavoidable accident – case Stanley and Powell 1891, chapter 14.