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Tortuous Liability Essay

5503 words - 22 pages

May 2007.TASK 1'…. Whether you are a new employee or not, all workers are personally liable for any breach of Health and Safety rules…'Explain whether you think the Union will accept this statement and why.This statement was seen in the draft employment contract that was to be submitted to the Trade Union from Drakers. To understand the validity of this statement I will first compare general tort liability with contractual liability and discuss what the advantages are of using tort over contract. A discussion of different types of tort, general, strict and vicarious, will follow this. The latter will be discussed with regards to the Employer's liability and the Health and Safety At Work Act (1974 & 1984).A Tort is a legal term that means a civil wrong and it is separate from Contract.The definition of Tort is not easy as it covers a broad range of situations; it is mainly to do with a person's responsibility to others.•A tort is a breach of duty, which is fixed by law. Someone behaves tortuously if they harm someone's body, property, and legal rights or breach a duty owed under statutory law.The law allows the victim to claim damages (money) if they can prove they have been harmed, when a tort has been committed, (this is to compensate them for harm done) in some tort they only have to prove that the tort has been committed e.g. in Trespass.Tort has developed as a system based on fault liability it is case written and the level of proof needed is 'in all probability'. Proving the fault is a requirement of most torts and can sometimes be very difficult it is based on the principle that that it punishes the wrongdoer but this is in practice does not work well as most damages are paid out by insurance and the tortfeasors main worry will be about losing their no claim bonus. In business it can have a stronger affect as business can have a highly publicised incidents affecting reputation and prohibition notices served could cause closure until problems are remedied (Health & Safety Executive -Adams, 2006).Tort and Contract.CONTRACTTORTThey both have obligations; in contract the parties involved in the contract set them.A contract is an exchange of promises or an agreement between parties. A breach of contract is a breach of duty and therefore a civil wrong. For example, we all have a duty to not trespass onto someone's land, or property at Drakers this could be breached if it was out of work open hours or if you were not invited; when this duty is breached it is a tort.Contract law duties are voluntarily assumed obligations. Both parties agree to contract and the main aim to having a contract is to enforce promises made. This usually has a time limit.There are some areas where this overlaps.In contract many duties are imposed by statute and as a result of E.U. law and have nothing to do with what the parties want to agree, certain terms will be enforced upon the parties once a contract is agreed.In Tort, law sets them.In...

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