Tort Law Assignment Level 3 GSM London

CASE STUDY 1

Advising Maid4U in relation to vicarious liability

Vicarious liability is the state in which any individual is held responsible for a particular action omission. Considering the same in a workplace context, an employer can be held liable for the actions or omissions that are being carried out by its employees. However, the condition may only be applicable if it took place in the course of employment only. The main issue that arises in the concept of vicarious liability is that employers are unaware of whether the employee was acting in his personal capacity in the course of employment or not. It has become difficult to make determination in the situation. The law states that some relationship, due to their nature, generates requirements of taking responsibility of individuals, who are made to engage in a particular activity. Employment of this nature is quite common in the case of employer and employee. Hence, it can be stated that an employer will be held responsible for the acts and omissions of employees under the rules and regulations of vicarious liability. Catholic Child Welfare Society v Various Claimants and Institute of the Brothers of the Christian Schools [2012] UKSC 56, is a quite famous case related to vicarious liability which helped in developing the relationship between employer and employee even if the relationship was between welfare society and schools.

The case discusses Christine who has been appointed by a cleaning company, Maid4U, to clean the offices of a children's charity, “More4kids”. She is paid for fixed hourly rate per cleaning job. Since the charity was organizing some events, cleaning was initiated and the company was contacted for the same. Despite of company's policy that cigarette smoking is not allowed for Maid4U employees, when they are at work, Christine lit up one and mistakenly thinking that it had been extinguished, dropped it in a bin at the exit. It caused a small fire in the exit hallway. Since, she has been appointed by the company, “Maid4U”, which will be held responsible under laws and regulations prevailing regarding vicarious liability in the country.

Companies who tend to employ others for some particular course of business are subjected to full or vicariously liable for all the acts of employees that have harmed the party. Vicarious liability is a civil matter that generally deals with civil courts and is generally based on the common law doctrine of agency. Since, it arises in the course of employer employer-employee relationship, any negligent act committed by the employee against the third party, the employer will then be held vicariously liable for the acts of an employee. Hence, a claim can be collected by a third party from an employer.

However, in certain cases, the employer may not be liable to bear the responsibility for the wrongdoings of employees. Assessing the case of Wilshire Police Authority v Wynn, some workers do not fall in the category of being employees. They may be interns, trainees, or apprentices. In such cases, the employer is not held liable. Another case related to it  Mohamud v WM Morrison Supermarkets was related to this tort where Mr. Mohamud was on the receiving end of a physical assault.

Vicarious liability as per the doctrine of English Tort law opts for imposing strict obligations on the employers for wrongdoings of employees, to third parties. The case decision in the situation, Catholic Child Welfare Society v Institute of the Brothers of the Christian Schools, strongly emphasized enterprise risk. It has been stated by the court that a third party can demand compensation for all damages from the employer. The main reason behind the same is that any type of tort is generally conducted due to lack of instructions and strictness from the side of employers. If the employer is responsible for seeking any type of gain from the side of the employer, then the consequences must be borne by him as well. It also helps to ensure that all precautions have been taken by the employer while conducting any type of business. Hence,  rules and regulations must be prepared in such a manner that none of the mistakes would be found to take place from the employee's end under the employer's command. Cox v Ministry of Justice was the other case that was also related to vicarious liability.

However, the primary liability lies with Christine. It was already mentioned in the policies and procedure report that employees are not allowed to smoke while being at work. However, Maid4U is vicariously liable for the same as it has not been able to keep up the command given. Hence, analyzing the case study being provided, it can be stated that the employer, that is, “Maid4U”, is responsible for the act. More4kids has the right to draw out compensation for damages from the company.

Advice to Ruby and Brenda in the tort of occupier's liability

Occupier's liability is said to be another field of law of torts that has been codified as the statute. The liability is concerned with the duty of care to be considered by one who actually holds real property. It helps in dealing with the liability that may arise from accidents caused by defective or prevailing dangerous conditions of premises. English law has come up with the Occupier's Liability Act 1957, which deals with the accountability that an occupier has on visitors. The act came into enforcement on 1^st January 1958, where the occupier has been defined as the individual occupying or the person in control of particular premises. He/she may not necessarily be an owner but is most likely one who has  ability to prevent harm. There are certain damages that are carried out due to negligence of a person who has been carrying out work on the premises. If damages are the result of faulty maintenance of a particular setup, then the liability lies in the hands of the individual who was responsible for fixing that setup. Harris v Birkenhead Corp [1976] is the other case that is related to it.

The present case discusses regarding day of the event which was organized by “More4kids” in order to entertain visitors.  The charity contracted with ToysRus Ltd who put a long and inflated slide. Ruby's son, Jo, arrived at the event and decided to use that slide. In the third,  slide suddenly rolled onto the floor due to which Jo broke his nose with some sustained cuts and bruises as well. It was later analyzed that the slide was not properly placed and secured to the ground.

Analysing the facts and figures of the case, it can be stated that, Ruby has the right to get compensation against the law of tort of occupier's liability. It is the default being conducted by the occupier, which is ToysRus Ltd in this case. Once, the claimant made it possible to prove that the defendant was in mistake and is responsible for breach of duty, under the occupier's liability Act, Ruby can sue the company so as to gain compensation regarding the same from the occupier.

Another aspect of the case is also stated in the study, where a Keep out sign has been installed in the event so as to prevent people from going to the hallway which was damaged due to fire. However, Brenda tried to sneak to the venue, without purchasing any ticket, from the exit hallway. She was then distracted by some noise and in the hassle of running, hiding, and being caught for not having any ticket, she slipped into a pool of water. Brenda hit her head on a wooden piece lying on the floor. It damaged her brand-new iPhone as well.

The verdict of Fiona Brown v East Lothian Council [2013] was also taken considering the occupier's liability. Another related case to occupier's liability is, Lowery v Walker

Analyzing the case, it can be stated that it does not cover the periphery of the occupier's liability as the sign of “keep out” was already being mentioned for the exit hallway. It was due to the negligence of Brenda, that she was caught in that situation. The common duty of care of the occupier is to keep the visitors reasonably safe from any kind of circumstances that can crop up on the premises. These actions were already being taken by the organizers of More4kids. It can be stated that the scenario comes under the negligence scope of Brenda who tried to have a sneak peek at the event without holding any ticket. Hence, the concept and compensation of the occupier's liability will not be applied in the case of Brenda. Moreover, she will not be liable to gain any benefits or compensation amount out of it. Defending Brenda from the case, section 2 (4) (a) of the Occupier's Liability Act 1957 states that providing warning signs or warnings given to the visitors will not be treated as dissolving the overall liability of the visitor unless in all the circumstances it has been ensured that the visitors are reasonably safe under all the circumstances. Considering this aspect of the Occupier's Liability Act 1957, Brenda has the right to demand the compensation. However, the warning sign was not mentioned on the other side of the hallway. Hence, the event organizers can be held liable for what has happened with Brenda and she can demand compensation for her iPhone. In relation to the given case scenario, Edward v Railway Executive is the other case related to it where the decision was made under the concept of Occupier's liability.

CASE STUDY 2

Potential liability in the tort of defamation referring Defamation Act 2013

The tort of defamation has been framed in order to defend the rights of individuals with respect to defamation. It also protects individuals from being exploited and provides rights to people to bring them in a court of law if he /she has been defamed due to published statements in front of society. In this scenario, defamation can be defined as, “The publication of a particular statement which is the representation of a person's reputation lowering the estimation of right thinking of the members of the society.

The tort of defamation helps in protecting an individual's reputation and does not allow any other individual to pose any type of statement which can have a direct or indirect impact on an individual's reputation in society. Companies as well as individuals have the right to bring these cases into court and take actions against defamation. The law states that there is a delicate balance between the right to freedom of speech and the right to protect their good name. It is difficult to assess which personal remark made to the individual or company is proper and which can be brought under defamation law.

As per the case of  Derbyshire County Council v. Times Newspapers Ltd. the accuser, who is a local authority, brought an action for damages for libel against The Times in respect of two newspaper articles which had questioned the propriety of its financial dealings. Another related case is Sim v Stretch [1936].

Defamation generally covers all the statements that can affect someone's reputation. If the statement has been made in writing, then it is called libel and I the hurtful statements have been spoken, then in that scenario, these statements are called “slander”. Defamation is generally considered in civil wrong or a tort. Defamation draws a fine line between the right to freedom of speech and the right of the person to avoid defamation. On one hand, an individual has the right to discuss regarding experience in a truthful manner without having any type of fear of a lawsuit if something true has happened to them. However, on the other hand, people do not have any right to make any false statement for any company or individual which can damage their reputation. Webb v Beavan [1883] is the other case that has a strong relation to defamation law and a verdict has been taken based on it.

There are various elements that are related to lawsuits. Hence, it has a direct relation to someone making a statement, publishing wrong content, statement causing injury which does not fall into a privileged category. Defamation Act 2013 is an act issued by the parliament of the UK which deals with the issue of right to freedom of expression and protection of reputation. The act has been responsible for changing the overall criteria of successful claims where the claimant is responsible for showing actual or probable harm before opting for suing in England or Wales. It has also been able to set a limit on geographical relevance. It has also been able to bring defense with respect to resolve the complaints which are able to publish true and honest opinions with respect to a particular corporation. Defamation Act 2013, generally applies to cause of action. All the defamation cases are now resolved under the Senior Courts Act 1981 in the Queen's division bench which requires prolonged analysis of the evidence and scenario. The cases are then referred to the Defamation Recognition Commission. Analyzing all the pros and cons with respect to the case then helps in reaching a specific decision that can help the board to take judgment on whether it has caused any kind of defamation to the organization or individual or not.

The case discusses Hiya which is a fashion and TV magazine. It is quite famous for its celebrity publications. A four-page article was published by the company regarding exploitation carried out in Harry and Maggie Design, which is a designer clothing company. The article discussed the organization involved in exploiting its workers in the UK for paying minimum wages. The article stated that the company is also involved in destroying the environment as it is involved in using highly toxic dyes. It stated that the workers are also forced to work in quite inhumane and degrading conditions. The claim made by the magazine did not contain any kind of proof or research, that can help in stating that the news printed by them is convincing enough.

Harry and Maggie have the right to file against Hiya, which is a fashion magazine, under the Defamation Act 2013 of the UK. The company can claim that since it is a big fashion magazine, it must have various followers which can cause serious harm to the revenue generated by it and can affect the overall reputation of the company as well. Harry and Maggie can claim compensation for all the damages of reputation being initiated by the team due to ineffective articles being published. Hence, it can be stated that defamation compensation can be initiated by the team so that appropriate reputation can be collected by the organization.

Couple's rights of tort of misusing private information and assessing the balance between Article 8 and 10 ECHR

Article 8 of the European Convention on Human Rights provides the right to respect his private and family life. The public authorities do not have any right to make any type of interfering with the exercise of this right except in case it is quite important for the democratic society and it belongs to their interest. Moreover, it can only be disclosed in case of its direct interest with respect to national security public safety, or economic well-being of the country. Moreover, its disclosure can also be important in the case of prevention of any kind of disorder or crime, initiating protection for health or morals, and the right to freedom of others. Article 8 is considered to be one of the most open-ended conventional rights given to humans which tends to cover various issues. It contains all the obligations that may be positive or negative in nature. The negative obligation that can be found in this article is that it is not appropriate to interfere with privacy rights. However, on the other hand, the positive aspect can be measuring the protection of private parties in interfering with the stated rights. It can act as a matter of safety being taken by the team for its effective establishment. There are four expressions that can help in protecting the interest under Article 8. These are private life, home, family, and correspondence. The majority of the actions are decided under the periphery of the right to respect the private life of the individual.

Article 10 of the European Conventions on Human Rights deals with freedom of expression. Every individual has the right to share the opinion held by him/her. One can opt for receiving and imparting ideas and information without having any interference from the side of public authority regardless of any type of frontiers. The article does not prevent people from requiring licensing of broadcasting, cinema enterprises, and television. One can exercise this freedom from carrying out responsibilities and duties that may be subjected to formalities, penalties, restrictions, and conditions.

The information discussed in Article 8 and Article 10 of the European Conventions on Human Rights are contradictory to each other. It is required to find out certain balance between the two so that effective application of both the sections can be initiated.

The case discusses Harry and Maggie who got married and belong to a respectable and aristocratic family. They decided that they would not be disclosing their wedding pictures until they came back from their honeymoon. Hiya's editor was also invited to the wedding who took their pictures without their permission and posted them on their internet page. The two stated that the action had been taken without their permission and their personal information had been misused to generate profits. Hiya claimed that there are no reasonable expectations of privacy as its justification can be made on grounds of public interest.

It can be stated that there can be no public interest in the case being disclosed by Hiya's editor without the permission of the couple. Protection can be given to the information that has been disclosed out of trust and confidence. Hence, Harry and Maggie have the right to gather claims on the grounds of disclosure of their personal information and pictures without their permission.

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CONCLUSION

From the above report, it can be concluded that the law of torts simply means civil wrong. It is considered to be the grounds based on which compensation can be demanded from the other party for any type of damages and injuries being initiated intentionally or unintentionally to the aggrieved party. The report discusses two cases, comprising various parties who have been indulged in civil wrong. It also discusses vicarious and occupier's liability that can be held by the party where the injury has directly not been initiated by the organization. It is due to the wrongdoings of employees that has to be borne by the employer.

REFERENCES

• Luntz, H. and et.al., 2017. Torts: cases and commentary. LexisNexis Butterworths.
• Goldberg, J. C. and Zipursky, B. C., 2012. Rights and Responsibility in the Law of Torts.
• Varuhas, J. N., 2014. The concept of ‘vindication in the law of torts: Rights, interests and damages. Oxford Journal of Legal Studies. 34(2). pp.253-293.
• Epstein, R. A. and Sharkey, C. M., 2016. Cases and materials on torts. Wolters Kluwer Law & Business.
• Herring, J., 2015. Q&A Medical Law. Routledge.
• Laposata, E., Barnes, R. and Glantz, S., 2012. Tobacco Industry Influence on the American Law Institute's Restatements of Torts and Implications for Its Conflict of Interest Policies. Iowa law review. 98(1). p.1.
• Kraakman, R. and Hansmann, H., 2017. The end of history for corporate law. In Corporate Governance (pp. 49-78). Gower.
• Goldberg, J. C., 2012. Introduction: Pragmatism and Private Law. Harvard Law Review. 125(7). pp.1640-1663.
• Solove, D. J. and Schwartz, P., 2014. Information privacy law. Wolters Kluwer Law & Business.
• Geistfeld, M. A., 2014. Risk distribution and the law of torts: carrying Calabresi further. Law & Contemp. Probs.. 77. p.165.
• Brand, R. A., 2016. The export of legal education: its promise and impact in transition countries. In The Export of Legal Education (pp. 9-20). Routledge.
• Burnham, W., 2016. Introduction to the law and legal system of the United States. West Academic Publishing.
• Hart, H. L. A. and Green, L., 2012. The concept of law. Oxford University Press.
• Chan, G. K. Y. and Lee, P. W., 2016. The Law of Torts in Singapore.
• Chan, G. K. Y. and Lee, P. W., 2016. The Law of Torts in Singapore.
• Luntz, H. and et.al., 2017. Torts: cases and commentary. LexisNexis Butterworths.
• Goldberg, J. C. and Zipursky, B. C., 2012. Rights and Responsibility in the Law of Torts.
• Right to Family life.  2015. [Online]. Available through < http://echr-online.info/right-to-family-life/ >
• Varuhas, J. N., 2014. The concept of ‘vindication in the law of torts: Rights, interests and damages. Oxford Journal of Legal Studies. 34(2). pp.253-293.
• Epstein, R. A. and Sharkey, C. M., 2016. Cases and materials on torts. Wolters Kluwer Law & Business.
• Herring, J., 2015. Q&A Medical Law. Routledge.
• Laposata, E., Barnes, R. and Glantz, S., 2012. Tobacco Industry Influence on the American Law Institute's Restatements of Torts and Implications for Its Conflict of Interest Policies. Iowa law review. 98(1). p.1.
• Kraakman, R. and Hansmann, H., 2017. The end of history for corporate law. In Corporate Governance (pp. 49-78). Gower.
• Goldberg, J. C., 2012. Introduction: Pragmatism and Private Law. Harvard Law Review. 125(7). pp.1640-1663.
• Solove, D. J. and Schwartz, P., 2014. Information privacy law. Wolters Kluwer Law & Business.
• Geistfeld, M. A., 2014. Risk distribution and the law of torts: carrying Calabresi further. Law & Contemp. Probs.. 77. p.165.
• Brand, R. A., 2016. The export of legal education: its promise and impact in transition countries. In The Export of Legal Education (pp. 9-20). Routledge.
• Burnham, W., 2016. Introduction to the law and legal system of the United States. West Academic Publishing.
• Hart, H. L. A. and Green, L., 2012. The concept of law. Oxford University Press.0

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