INTRODUTION

As stated by Westrick & Dempski, (2000), legal systems and ethical codes mirror the
values that people within a society have and provide the guidelines for the development
of appropriate behaviors. Ethics and law continually interact with each other and affect
decision making in various spheres of life. This assignment discusses the difference, if
any, between the tort of negligence and vicarious liability.

CONCEPT OF TORT OF NEGLIGENCE

Torts of negligence are legal wrongs that one party suffers at the hands of another. This
doctrine (Torts of negligence) differs from vicarious liability in that it does not go against
the principle that wrongdoers should not pay for their own acts. Negligence is a form of
tort which evolved because some types of loss or damage occur between parties that
have no contractual relationship between them, and therefore there is nothing for one
party to sue the other over.

Let’s consider a hypothetical case and use it to demonstrate how the tort of negligence
differs from vicarious liability through its applicability. Harry is involved in an accident in
which his car is hit by one driven by Alex. As a consequence of the accident Harry
breaks a leg and is unable to work for two months. Can Harry sue Alex for damages?

On the face value of things the answer seems obvious which is yes because Harry was
injured as a result of Alex driving into his car and so it seems fair that he should be able
to sue him. Nevertheless, when one considers the scenario from Alex’s perspective, is it
fair that Harry should be able to sue him just like that? People have accidents everyday
should they all be able to sue each other for every little incident? If they are then the
courts would be overwhelmed with cases.

Thankfully, in order to prove tort of negligence and claim damages, a claimant has to
prove a number of elements to the court.

Element 1 – The duty of care

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In the 1932 case of Donoghue v Stevenson, the House of Lords decided that a person
should be able to sue another who caused them loss or damage even if there is no
contractual relationship. Particulars of the case where that Donoghue drunk from a
bottle of ginger beer which was bought for him by a friend. After drinking half the
contents, she noticed that the bottle contained a decomposing snail and suffered
nervous shock as a result. Under contract law, Donoghue was unable to sue the
manufacturer because her friend was party to the contract, not her. However, the House
of Lords decided to create a new principle of law that stated everyone has a duty of care
to their neighbor, and this enabled Donoghue to successfully sue the manufacturer for
damages.

In addition to creating the concept of duty of care, the House of Lords went on to specify
that ‘neighbor’ actually means ‘persons so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected’. This is a very
wide (and complicated) definition that could include almost anyone. Nevertheless, the
later cases of Ann’s v Merton London Borough Council (1977) and Caparo Industries
plc v Dickman (1990) restricted the definition a little by introducing ‘proximity’ and
‘fairness’. Proximity simply means that the parties must be ‘sufficiently close’ so that it is
‘reasonably foreseeable’ that one party’s negligence would cause loss or damage to the
other. Fairness means that it is ‘fair, just and reasonable’ for one party to owe the duty
to another.

Therefore, in the case of Harry, what does this mean for him? It is writer’s view that Alex
owes Harry a duty of care. Why? Because there is sufficient proximity (i.e. Alex drove
into Harry’s car); it is reasonably foreseeable that a collision between the cars could
cause Harry some injury, and it seems fair, just and reasonable for Alex to owe a duty of
care to Harry (and indeed all other road users).

Element 2 – breach of duty of care

In many cases brought before the courts it is evident that a duty of care exists between
the defendant and the claimant. The real issue is whether or not the actions of the
defendant were sufficient to meet their duty. To determine this, the court will set the

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standard of care that they should have met. This standard consists of the actions which
the court considers a ‘reasonable person’ would have taken in the circumstances. If the
defendant failed to act reasonably given their duty of care, then they will be found to
have breached it.

This ‘reasonable’ standard may be adjusted given the actual circumstances of the case.
For example, if the claimant is vulnerable, such as being disabled or frail, it is
reasonable to expect the defendant to have paid them special attention or taken extra
care over them as compared to someone who is fit and healthy.

Element 3 – loss or damage as a result of the breach

In this element the claimant simply has to prove that the loss or damage was a direct
consequence of the defendant’s breach of duty of care. In, other words that there is a
chain of causality from the defendant’s actions to the claimant’s loss or damage. A
simple test, called the ‘but for’ test is applied. All the claimant has to prove is that if it
were not ‘but for’ the actions of the defendant then they would not have suffered the
loss or damage. Therefore, where there is more than one possible cause of the loss or
damage, the defendant will only be liable if it can be proved that their actions are the
most likely cause.

A good case which illustrates how the ‘but for’ test operates is Barnett v Chelsea and
Kensington HMC (1969) – another medical case. A casualty department doctor
negligently sent a patient home – the patient died. However, the doctor was not found
liable for damages because the patient was suffering from arsenic poisoning and would
have died no matter what the negligent doctor could have done.

Let’s return to Harry and Alex. It is entirely possible for the accident to be caused by a
third party driving into Alex, forcing him into Harry. It is also possible that Harry himself
was an intervening factor maybe he was driving erratically. Either of these factors could
mean that Alex’s breach of duty is not the real cause of Harry’s injuries.

However in tort of negligence a defendant can use two defenses where they are found
liable for negligence. The first one is Volenti non fit injuria which is used to exonerate a

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defendant completely as long as a defendant can prove the claimant accepted the risk
of loss or damage. The second defense is contributory negligence which reduces the
level of damages the defendant is liable for. The defendant is still liable, but will face a
reduced damages payout.

In Harry and Alex’s case, volenti is not an issue – in no way did Harry consent to the
accident. However, if his actions contributed in some way to his injuries, maybe by not
wearing a seatbelt, then he may find the amount of damages he receives is reduced.

CONCEPT VICARIOUS LIABILITY

The doctrines of vicarious liability and tort of negligence serve as examples of types of
interactions between the law and ethics. From the point of view of vicarious liability
theory, it is “the liability of the employer for the negligent acts of the employee in the
course of his or her employment” (Westrick & Dempski, 2000, p. 5). Overall, it means
that an employer is accountable for the wrongful or negligent torts of his/her
subordinates when they are fulfilling prescribed work responsibilities and roles (Westrick
& Dempski, 2000, p. 5).

What makes vicarious liability different from tort of negligence is that the doctrine
(vicarious liability) arises by virtue of the relationship between the actual tortfeasor and
the person who is made vicariously liable (Thornton (2010). As Atiyah recognizes, only
the master and servant relationship has a general rule imposing vicarious liability in all
circumstances (Butterworths, 1967). The remaining 'recognised' categories have
vicarious liability imposed in certain exceptional circumstances only (if truly at all).

The doctrine makes one person held liable for the torts of another, even though that
person did not commit the act itself therefore, it goes against the principle that
wrongdoers should pay for their own acts as it is with tort of negligence. This is so due
to the fact that legal duties bind employers and employees and enforce them to behave
according to major ethical principles in vicarious liability.

It is therefore a form of strict liability (in that the defendant is not at fault). The most
common form of vicarious liability is when employers are held liable for the torts of their

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employees that are committed during the course of employment. The issue of vicarious
liability can be seen to be unjust in that someone who is not at fault can be held liable.

However Lockwood, (2011) hailed it for protecting the right of the victim to gain
sufficient compensation also tries to protect the employer from being overburdened by
their employees.

Also, although vicarious liability goes against the principle that wrongdoers should pay
for their own acts, the doctrine seems appropriate as it does serve a useful purpose; it
contributes to the maintenance of safety standards and it enables the victims of
negligence by employees to be reasonably certain that someone will be in a position to
pay them compensation (Lockwood, (2011).

However, according to Miller (2015) in order to establish liability on the part of the
employer, several requirements must be satisfied. Firstly, the wrongdoer must be an
employee, the employee must have committed a tort and the tort must have been
committed in the course of employment.

If these three elements can be proved in a court case by proving that the employee’s
harmful act was intentional or negligent, the plaintiff can recover against the employer,
either in addition to, or instead of, the employee who committed harm, otherwise, the
employer is not vicariously liable (Sevier, 2017).