Contract negligence

An agreement between the parties outlining the expectations for their obligations to one another is referred to as a contract. The contract law is a body that regulates all contracts that may be made between different parties, defining the terms of the contract and outlining the remedies in the event that one party violates it. Tort law, on the other hand, specifies the components of a crime against a person as well as the circumstances in which one person has hurt or injured another. In the field of business, both contract and tort law essential in the business world and help to solve issues among the parties involved (Murphy 2010, p. 360).

Several distinctions exist between the provisions in tort law and the provisions in contract law. The parties involved in a contract are not forced to agree unlike in the cases regarding tort law where the involved parties are bound by the law to act in a given manner (Lunney and Oliphant 2010). The individuals entering into a contract are usually made aware of all their obligations under the agreement into which they make a willing entry. Therefore, the occurrence of damages in contract laws is caused by the mistakes or misunderstanding between the various parties involved (Adams 2013). The contractual obligations in an agreement are stipulated and legally binding. Breach of a contract results into various remedies including financial damage, rescission, specific performance, restitution and reformation. Remedies stems from of the fact that both sides in a contract are aware of their responsibilities with regard to the agreement.

However, in case of tort law, the interaction is not based on the consent. The application of a tort law comes about when one intrudes the other’s safety, profit, health or privacy (Scott and Paris 2010, p. 16). Therefore, the nature of parties involved in tort law cases is different from those involved with contract law (Potter 2015). Regarding the court handling of cases, the existing systems define different approaches to handle tort and contract cases. However, there are instances where tort and breach of contract may have a causal affect where they are tied together (McNally 2011, p. 434).

Aspects of Negligence

Negligence refers to the failure of a party to adjudicate care in a situation where a person of average prudence would have considering the prevailing circumstance. There are various aspects that a claimant must prove to make a successful claim in the case of negligence. These include the proof for the existence of the duty of care, the breaching of the duty of care and the actual damage caused by an act or omission. The mission of care is required as a way to prove that indeed the claimant had played their role in the provision of sufficiently reasonable care which could directly or indirectly become harmful to others (West and Lewis 2009, p. 1001). Successful claims also entail the breaching of the duty whereby the defendant becomes liable for the negligence when they breach the duty that they have regarding their responsibilities. In the case of Smoldon V. Whiteworth and Nolan (1997), the plaintiff broke his neck in a rugby match. Whitworth (first defendant) who was a player from the rival team claimed that he had no duty of care towards the plaintiff (Smoldon) and that Nolan (second defendant) who was the referee had a duty of care over the players by ensuring that the rules of the rugby game guaranteed the safety of the players.

A claim of negligence has several grounds for defense. In the case of Smoldon V. Whiteworth and Nolan (1997), the first defendant (Whiteworth) successfully defended himself from the claim by dismissing his duty of care for the plaintiff (Smoldon). The primary justifications include the challenging of the degree of the plaintiff’s duty care, proving that the act happened within the standard requisite case, the attack of plaintiffs of act and harm and then establishing whether they suffered an actual loss or not (Davies 2010). Also, the defendant can attempt to establish that the claimant was negligent (Andrew et al 2007). A defendant in a negligence claim should demonstrate that he or she does not owe any duty to plaintiff in the given circumstance. Moreover, other grounds of defense in a negligence claim include proving that the circumstance was out of the direct control of the defendant

Vicarious Liability

The vicarious liability refers to one of the legal concepts that mainly focus on people who lack the primary obligation (Neethling 2008, p. 573). Vicarious liability represents a situation whereby an individual is held liable for the actions or omissions committed by another individual. In the case of Anderson V Hlongwane (11648/2006), the court defined the case of vicarious liability. In the case, the plaintiff (Anderson) claimed for damages for an accident caused by the car owned by the defendant (Hlongwane) which was being driven by a driver perceived to be employed by the defendant. The employer-employee relationship depicts one of the common vicarious liability elements. The employers are held responsible for their failure to offer sufficient care to the employees whom they owe responsibility (Von 2009). However, the employee’s negligence is also considered in the determination of a vicarious liability case. In the case of defense in a vicarious liability claim, it is critical to establish whether the employee’s negligence caused the damage or not (Riley 2012).

During the employment, the employers are expected to act responsibly for their employees to avoid damage (Quill 2014). On the other hand, the employee is expected to exercise their duty of care under all circumstances. The employer is not liable for the assault that may be committed by the worker unless such an act is defined in their employment act (Cooke 2015). In the case of Messina Associated Carriers V Kleinhaus (2001), the court defined that vicarious liability can stretch beyond employment relationships to cover people whose actions are analogous to the actions of an employee.

Applications of the Rules of Negligence

There are various rules of negligence that are applied in different case scenarios (Stone 2013). In the given scenario of Romeo, various factors will determine how the client will claim damage from Romeo. Firstly, there must owe the duty of care to the client visiting his archive. The duty of care can be direct or implied in the sense that a business owes an automatic duty of care to its employees by ensuring that the goods and services as well as the place of business is safe for the employees. Romeo owed a duty of care to the client and thus the client has sufficient grounds to sue for damages from Romeo’s archive

In the case of Messina Associated Carriers V Kleinhaus (2001), the court established that the actions of the employee represent the interests of the employer. Romeo had a duty to ensure that Jules despite being a student should have been able to operate the store perfectly in his absence (Richards 2013). However, the client will have the burden of proving that his actions in the archive did not amount to negligence. Also, the information provided to the client concerning the absence of Romeo can form ground defining the client’s awareness of the situation that led to his injury (Calitz 2009, p. 410).

The other rule of negligence is the cause of the effect. The plaintiff must prove that the damage was indeed caused by the defendant’s actions (Horsey and Rackley 2015). Romeo failed to provide the instructions on the operation of the rolling retractable shelves. Jules could have breached duty by allowing the client into the shelves without the instructions from Romeo. However, duty descriptions of Jules should indicate restrictions to define the breach of duty. The defense in the case of Romeo and the client can be grounded on the role of the client in causing the injury. The client exposed himself to the danger by insisting on entering the shelves in the absence of the owner.

Vicarious Liability of Romeo

The provisions of the law on vicarious liability come into play in the scenario of Romeo’s archive. Jules is an employee at Romeo’s archive and thus the damages caused by the employee is a responsibility of the employer. The vicarious liability entails cases where one party is taking the responsibility of other people's mistakes due to the special relationship that they have (Olivier 2009). Despite Jules being employed on a casual basis, an employer-employee relationship exists between the two. In the event that vicarious liability can be proved, the burden of damage shift from the person that caused the damage to the secondary entity (Owen 2007, p. 1671). Thus, the negligence of one party leads to the responsibility of the related party. Therefore, Arden Town library is liable to the mistakes and injuries caused by its stakeholders such as the employees and the customers (Nolan 2011).

The doctrine of vicarious liability defines the employer-employee relationship in the business industry. The employer has a special relationship with the workers. In the case of Anderson V Hlongwane (11648/2006), employer employee relationship is defined. The court also defines the course of employment as seen in the case of Messina Associated Carriers V Kleinhaus (2001). Vicarious liability covers both the permanent and casual employment. Also, the court defines vicarious liability to cover persons who are not employees but whose actions are analogous to those of an employee. Jules is not experienced enough to handle the clients nor is he employed on a permanent basis. However, Romeo will bear a vicarious liability for the injury caused by Jules who was acting as an employee in the Romeo’s archive (Duff 2010).



References

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