Defences

· Novus actus interveniens

There is a defence in tort, that a new intervening act can breach the chain of causations.

e.g. Ship 1 bumped into ship 2. Ship 2 is damaged and sinking – captain sent life boats with passengers and the crew. Suddenly ship 2 falls down on one of the boats – some people are dead. Families of them are trying to sue the owner of ship, but there was a new intervening act when captain sent life boats, that is why families cannot sue.

· Body of opinion – if other professionals would have done the same thing this is a degence

· Multiple causes

If there are many contributing factors, then your breach may not have been the cause/complex series of events

· Act of God: tornado, bee stung the horse that has crashed a city, earthquake etc.

· The claimant volunteered to be put in danger - volenti non fit injuria/no wrong is done who consents

e.g. Two friends were drinking alcohol and decided to fly a plane together which is one of them property. They crashed – pilot is dead, passengers are injured. One friend wants to sue another saying ‘you put me here and you did not take enough care of me’ (duty of care). But his friend`s defense was that he was a volunteer to be put in danger.

Explanation how a business can be vicariously liable

Vicarious liability is when the employer is liable fot the tort of an employee. In boarder terms it can be any situation where a colleague can be held liable for a tort committed by another employee. e.g directors can be jointly liable for each other’s actions

To show vicarious liability (assuming that tortuous liability exists) you must show two things:

v An employer/ employee relationship exists, i.e. the tortfeasor in an employee not a contractor or associate. To find out this relationship control test, integration test will help.

v The tort happened in the course of their duties. It was closely related to their job (if they did not have the job, they would not have committed the tort). Lister v Hesley Hall (employer did sexual actions to a child), Mod v Radcliffe cases prove that fact.

The employer is still liable even if they take care not to breach their duty of care. Vicarious liability is strict. If someone keeps something that causes mischief if it escapes they are liable even if they take responsible care.

Conclusion

In this paper I have contrasted liability in ort with contractual liability, explained the nature of liability in negligence and explained how a business can be vicariously liable.