Aspects of Contract and Negligence for Business


Gergen (2013) provides that negligence is the failure of an individual to exercise a reasonable duty of care which any prudent individual would have exercised within a similar case scenario. Therefore, the tort of negligence is put in place to cater for the harm which arises in situations where harm, rather than intentional harm, is caused as a result of carelessness. Further, Gergen (2013) indicates that a vicarious liability is a situation where an individual is held responsible for an act of omission of another party. Normally, it is composed of different elements such as a supervisors ‘authority of controlling the employee, having and the activities of an employee falling within the scope of the training objectives presented. This paper provides an insight into how the tort of negligence can be employed in different business situations through the application of the elements of vicarious liability.

Analysis Based on the Tort of Negligence

Statement A provides that Neil does not owe Roger a non-delegable duty of care as required by the tort of negligence which involves providing the employees with a safe working environment. This statement is not accurate as the employer has the obligation of providing employees with a safe working environment. This is evident as he never provided the employees with gloves despite the fact that they were available causing the dishwasher to have rashes.

Statement B provides that Roger has the capacity of bringing a claim in vicarious liability against Neil for Colin’s actions. This statement is not accurate as vicarious liability does not include any element which caters for employer breach of duty to the employee. Therefore, it may not be applicable in this case scenario.

Statement C provides that Poshplace hotel is liable as outlined by the Occupiers liability act of 1957. This statement is true and accurate based on the fact that the liability act of 1957 is put in place to protect the interests of the visitors to a business and its environs. Dimond (2002a) states that the liability act provides that the occupier of a premise has a duty of care to all its visitors unless if the visitors get into an otherwise form of agreement with the occupier. Furthermore, the act provides that the common duty of care involves all the circumstances of a reasonable case which is meant to ensure the safety of the visitor. In cases where the visitor to a premise suffers damage of any sort arising from the dangers he faces in the premise without any prior warning, a conclusion can be drawn that the visitor was not provided a reasonable safety within the premise as expected by the occupier’s duty of care. Therefore, it is possible to sue the occupier which in this case is the Poshplace hotel based on the tort of negligence. This is based on the fact that Mark was not provided with any prior notice on the dangers he was expected to face for instance, the fact that they have a gardener who is also a thief who might cause danger to Mark as a visitor.

Statement D provides that the hotel is not liable to Mark based on the Occupier’s act of 1984 based on the fact that it issued a warning notice. Dimond (2002b) implies that this statement is accurate based on the fact that the Occupiers act of 1984 covers the occupier’s liability for trespassers as well as visitors in the cases where an actual knowledge of the existence of danger was issued. Factually, the hotel issued a notice that no visitor should access the swimming pool at any time between 7pm and 7AM. Despite the fact that Mark saw the notice, he still went ahead and jumped in, despite the pool being empty where he suffered severe injuries based on his negligence. As similar case to this scenario is the British Railways Board v Herrington of 1972 where the occupiers actually owed a duty to the trespassers based on the fact that they did not issue a notice regarding an existing danger.

Statement E provides that Mark has the capacity of using the ordinary principles of negligence to make a claim against the damages caused to him while at the Poshplace hotel. This statement partially accurate. Reason being, Mark can only claim compensation for the damages caused to him when Neil decided to threaten him and steal from him while in the hotel. The damages caused when he decided to jump into an empty pool are not valid against the hotel.  Evidently, Gergen (2013) reports that the ordinary negligence principles provides that the hotel must have breached its duty of care to Mark with a factual causation being available. In this case, factual causation was only available when Neil threatened and caused damage to Mark after stealing from him. In addition, legal causation must also be available. In Mark’s case, it is evident that the hotel exposed Mark to some danger as a result of their breach of duty. This further caused Mark some potential harm which means that the hotel has to be sued for Mark to be compensated.

Statement F which provides that Mark will not have the capacity of claiming for the cost of their designer swimming trunk as required by the Occupiers liability Act is accurate and true. Reason being, the occupiers’ liability act  indicates that an injured visitor can only make claims for personal injury and death but not for the damage of personal property (Dimond 2002b). Mark’s swimming trunk is considered a personal property.

Statement G states that Mark has the ability of bringing a personal claim in vicarious liability against the hotel for the loss of his jewelry which took place in the premise. This statement is accurate as it is evident that two elements of vicarious liability were neglected for him to loose the jewelry having in mind that the thief was actually the premises employee, Neil. Incidentally, the second element of the vicarious liability provides that the supervisor hold an inherent authority of controlling the employee (Brodie 2007). Therefore an assumption can be drawn that the hotel’s management directed the employee to steal from the visitor. The third element of the liability was also breached which states that the activities of the employee within an institution falls under the scope of the training they underwent before being employed. Therefore, a conclusion can be drawn that the employee was trained to steal from the visitors as part of his objective. Therefore, Mark can bring a personal claim based on vicarious liability.

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