The nature of general tortious liability comparing and contrasting to Essay

The nature of general tortious liability comparing and contrasting to contractual liability - Essay Example The paper tells that the similarity between general tortuous liability and contractual liability is that both give rise to actionable demands in a court of law, and both, if adequately proven, entitle the plaintiff to damages from the defendant. The main difference between general tortuous liability and contractual liability is that the latter is strictly voluntary, in that the parties by mutual consent, agree to bind themselves to certain obligations to each other, and be liable for damages in case of breach. These obligations are stipulated in a contract that shall be the law between the parties. For there to be a valid contract, there must be a meeting of the minds, i.e., an intent to create legal relations, an offer and acceptance, and mutual consideration and the parties must be capacitated to enter into the contract. One of the classical and enduring cases of contract law is the case of Carlill v. Carbolic Smoke Ball EWCA Civ 1. In this case, a company had come out with an adve rtisement challenging readers to use Carbolic Smoke Ball to prevent Influenza. It said that if used according to instructions, the user would not be susceptible to Influenza anymore, and if he still contracted the disease, the company would pay him 100 pounds. When a claimant came out, the company refused to pay, saying that there was no intent to create legal relations. In finding against the company, the court held that a valid and legally enforceable contract existed. In a situation where a valid contract existed, breach of it would constitute contractual liability. For example, in a contract of the sale of apples of a certain quality, if an inferior quality was delivered, it can be said that a contractual liability is created. In contrast, tortuous liability does not attach by reason of contract, but because of a breach of a duty of care. It is quite possible that the defendant may not have been aware of the extent of his liability or may not even know the person to whom he is l iable, quite unlike parties to a contract who are all known to each other. To quote the seminal case of Donoghue v. Stevenson 1932] UKHL 100 (26 May 1932) " You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then is my neighbour? The answer seems to be - persons who are so directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question." After Donoghue, the definition of what constitutes tortuous liability has been refined considerably and has crystallised into a three-way test: proximity (as held in the case of Donoghue), foreseeability, which means that the defendant should have been able to foresee the consequences of his or her actions (Caparo Industries Plc v Dickman and Others [1990] 2 AC 605.), and the test of â€Å"fair, just and reasonable†, recently upheld in the cas e of McFarlane and Another v Tayside Health Board [2000] 2 AC 59. To demonstrate causation in tort law – i.e., to show that the loss caused to the claimant was a result of a breach of duty of care by the defendant – the most simple test is the â€Å"but for† test. But for the defendant’s actions, would the claimant have incurred the loss? This was elucidated first in the case of Barnett v. Chelsea & Kensington Hospital ([1969] 1 QB 428) where a doctor was not held liable for a patient’s death even if he did not examine the latter, because the patient would have died anyway with or without the ministrations of the doctor. However, it must be remembered that one incident can give rise to several claims, and a claimant can elect between a breach of contract claim or a negligence claim involving duty of care1. (Jones, 2000, page 379). Explain the nature of liability in negligence and the concept of vicarious liability (P8 & P9) The nature of