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Describe the nature of general tortuous liability comparing and contrasting to contractual liability * There are some similarities between tortious and contractual liability Both tortious liability and contractual liability are civil law obligations, so the remedies of all two them are only damages, injunction or specific performance without punishment as well as the civil courts have jurisdiction to hear contract and tort claims. Moreover, breaching of both types give rise to an action for damages. For example, to contrasting liability, see case Jackson v Horizon Holidays Ltd 1975 and to torious liability, see case Scott v Shepherd 1773. And the person who wronged sues in the court for compensation. * The difference of tortious and contractual liability
In tort claim, anyone who has suffered losses because of a wrongful act of defendant can claim for their damage without being necessary to have any previous transaction or relationship with the defendant. For example, a passenger can sue a motorist for making him suffer injury when they have accident on a road. In contrast, there is more privacy in the contract in the case of contractual liabilities as the parties who are involved in the contract are the one who can actually sue for damages as in the case of Atkin v Sounders, 1942. Moreover, general rule of contractual obligations are voluntarily undertaken, that means the defendant and the plaintiff have opportunity to escape from their relationship before a wrongful act is occurred. Therefore, liability in contract cases is more freedom than in tort liability. Meanwhile, tortious liability is imposed the defendant because the result of the plaintiff loss is appeared as the reason to create their special relationship. For the compensation, when a tort is committed, the remedy is just an action for damages while in the case of contractual liability, the remedy for wrongful acts can also be injunctions and specific performance. Furthermore, in tort case, damages will be awarded if there are a causation and it must be reasonable foresight.
Issue: Was Charlie liable for the injury of the thief? *
A tort is a civil wrong arising from a general duty rather than from a contractual relationship. Damages will be awarded if there are causation and reasonable foresight. There are some defences to an action in tort: genuine consent, self defence, unavoidable accidents, within rights of statutory authority, necessity, Act of state and Act of God. *
Trespasser is a person who knows he does not intend communication with the occupier or anyone else on the premises. That includes three typical torts: trespass to land, trespass to goods and trespass to person. *
The Occupiers’ Liability Act 1984 has replaced the common law rules governing the duty of occupiers of premises to persons other than visitors. The duty is to take such case as is reasonable in all circumstances to see that the person to whom a duty is owed does no suffer injury on the premises by reason of the danger. That means the occupier can only be liable for injury to the person, but not for loss or damage to property. *
Charlie grows prize winning flowers in his garden. Before a major Flower Competition, he discovers that someone has stolen some of his best flower. Thus, in one night he hides in a tree in his garden to catch the thief.
A trespasser is not defined by the Act but, generally speaking, it is a person who knows he does not intend communication with the occupier or anyone else on the premises (see case British Railways v Herrington 1972). At about 4.00am, there is a person get out of one car and goes into Charlie’s garden then start to dig up Charlie’s flowers. It is obvious that this person does not intend to communicate with Charlie and also anyone else on the premises....
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