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Contract and tort

 

Tort
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Introduction

A description of the law of tort is outside the scope of this Site, even in summary. However, our intention is to highlight those types of tort which we feel are most relevant to business, in particular SMEs.

The UK jurisdictions of England and Wales and Northern Ireland have developed the law of tort via the common law on the one hand, while in Scotland this subject is termed the law of ‘delict’ and derives from civil law principles, albeit also heavily influenced by the decided cases.

The description of the law in this section is largely that of England and Wales (Wales does not have devolved powers in this area). The clarity of the law in the other UK jurisdictions is not assisted by the fact that legislation of the UK Parliament modifying the law of torts does not apply uniformly throughout the UK.

A ‘tort’ is a civil legal wrong committed by a person against another. n many jurisdictions. A tort is also distinct from other types of civil wrongs such as breach of contract.

A tort is distinct from a crime which is a legal wrong committed against the state. Many but not all torts also amount to crimes, e.g. assault, theft and fraud. However, not all torts are crimes, and not all crimes are torts. For example, defamation is not a crime in the UK(i) is a crime in some other jurisdictions(ii).

Notes:

(i) the common law offences of seditious libel, defamatory libel, and obscene libel were abolished in the England and Wales and Northern Ireland on 12 January 2010 when s.73 of the Coroners and Justice Act 2009 came into force.

(ii) Sweden is an example.

.In the broadest sense, the infringement of a property or other right may be regarded as a tort, for example infringement of intellectual property rights such as copyright, patents, designs, confidential information, passing off and trade marks.

Breach of statutory duty

Many of the laws described in Regulated_businesses impose duties on persons carrying on the business. If such a person breaches such a duty and causes loss or damage to a another person who is within a specific class of persons which is recognised by the law as intended to be protected, the latter may be entitled to compensation. Examples of such duties may be found in:

Competition law; Data protection; Health and safety at work; Intellectual property; Marketing and advertising; Product liability; Claims management; Employment agencies; Estate Agents; Financial services; Holidays and travel

Vicarious liability

‘Vicarious’ liability is the legal liability a person (the principal) has for the tortious acts or wrong doing of another person (agent) for whom the principal ought to be responsible. The principle has been developed by the courts as part of the common law of the three UK jurisdictions and developed from the law of agency.

According to the principle of vicarious liability, a principal will be liable for the wrongful acts of his agent if the acts were committed in the course of the agent’s duties, such as a negligent act or omission. In the case of a partnership, all the partners are liable for the wrongful act or omission of one partner if committed in the course of the partnership’s business. In the case of an employer, he will be liable for the wrongful act of his employee if committed in the course of his employment.

To determine whether a principal/employer is vicariously liable for the wrongdoing of his agent/employee, the courts have developed a to stage test:

* Stage 1: What is the relationship between the employer and the wrongdoer?;

* Stage 2: Is there a sufficiently close connection between the relationship and the wrong?

In the recent twenty years or so been a trend to expand the scope of both stages of the test. “The law of vicarious liability is on the move”: so stated Lord Phillips of Worth Matravers in the Christian Brothers case (Various Claimants v Catholic Child Welfare Society [2012] UKSC 56).

However, two recent Supreme Court judgments appear to have halted this trend:

More on Vicarious liability

Tests to determine vicarious liability

Test for determining whether a person is vicariously liable for another’s wrongdoing

The test which has evolved for determining vicarious liability may be sated as follows:

*  Stage 1: What is the relationship between the employer and the wrongdoer?;

*  Stage 2: Is there a sufficiently close connection between the relationship and the

Vicarious liability

 

‘Vicarious’ liability is the legal liability a person (the principal) has for the tortious acts or wrong doing of another person (agent) for whom the principal ought to be responsible. The principle has been developed by the courts as part of the common law of the three UK jurisdictions and developed from the law of agency.

According to the principle of vicarious liability, a principal will be liable for the wrongful acts of his agent if the acts were committed in the course of the agent’s duties, such as a negligent act or omission. In the case of a partnership, all the partners are liable for the wrongful act or omission of one partner if committed in the course of the partnership’s business. In the case of an employer, he will be liable for the wrongful act of his employee if committed in the course of his employment.

To determine whether a principal/employer is vicariously liable for the wrongdoing of his agent/employee, the courts have developed a to stage test:

* Stage 1: What is the relationship between the employer and the wrongdoer?;

* Stage 2: Is there a sufficiently close connection between the relationship and the wrong?

In the recent twenty years or so been a trend to expand the scope of both stages of the test. “The law of vicarious liability is on the move”: so stated Lord Phillips of Worth Matravers in the Christian Brothers case (Various Claimants v Catholic Child Welfare Society [2012] UKSC 56).

However, two recent Supreme Court judgments appear to have halted this trend:

Barclays Bank plc (Appellant) v Various Claimants (Respondents);

W M Morrison Supermarkets plc (Appellant) v Various Claimants (Respondents) [2020] UKSC 12

Engand and Wales, Northern Ireland

The law of tort has developed as separate, discrete categories such as the torts of negligence, nuisance, defamation, conspiracy, wrongful interference with contract and others.

Scotland

In Scotland tort is known as 'delict' and has developed more on general principles than is the case in the rest of Great Britain. However, the principles of perhaps the most important tort, negligence, are the same throughout the UK.

[Page updated: 26/04/2020]

 

 

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