Alternative Assessment 1
LAW 480 - BUSINESS LAW-ALTERNATIVE ASSESSMENT
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Alternative Assessment 2
Alternative Assessment
Part A
Tort law is important in the determination of whether someone should be held
responsible or legally accountable for causing injury against another person and also the kind of
compensation that the injured person will be entitled to. Goudkamp (2017, p.480) indicates that
tort law has the primary objective of restoring those persons who are inured to the condition they
were before the occurrence of the injury afflicted on them by the acts of another person.
Mulheron (2016, p.67) asserts that the restoration is achieved through awarding the injured party
with a monetary fund that will serve the purpose of covering the medical expenses,
compensation for anguish and pain, and also for covering lost wages. On the other hand,
Goudkamp (2017, p.480) adds that it is in place to ensure that misconduct and negligence are
lessened as committed by individuals and organizations who can potentially cause harm through
their actions. In the case provided, Tom causes injuries through his negligence in driving his
lorry. In the process, five people are affected by his actions. This essay critically looks into how
far does Tom owes a duty of care in tort for the harm he has caused.
In this case, Tom causes injuries through his negligence in driving his lorry. In the
process, five people are affected by his actions. It, therefore, means that since it is a car accident
involved, the case falls under negligence in tort law. According to Griffith (2020, p.170),
negligence means nothing else but someone’s carelessness and under legal context, it highlights
an individual’s or organization’s failure in performing the basics of care that the organization or
the individual, and as a normal and reasonable man must perform in all circumstances.
Generally, there is always a legal responsibility to dirty to be considered when foreseeable that
failing to do so causes harm (Griffith, 2020, p.178). Negligence is a means where diverse kinds
of injuries may take place if one fails to consider the suitable precautions needed. Griffith (2020,
p.178) explains that there are four elements of negligence tort where one of them is the duty
which is the obligation that the defendant must be established to have owed the plaintiff a duty.
Also, Griffith (2020, p.178) indicates that breach is another element of negligence which refers
to the violation of the duty or law such that the defendant has to breach his or her duty to be
considered liable or responsible for negligence. The other element is the cause where Griffith
(2020, p.178) says that the breach of duty should cause harm to a plaintiff. And lastly, Griffith
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(2020, p.178) explains the element of harm in negligence tort stating that the plaintiff must suffer
from harm to sue negligence.
In the case of Tom, the critical issue is to determine if he owes a duty of care in tort
regarding his driving behavior. According to Cameron (2019, p.12), the law needs the defendants
to careful in a reasonable manner such that in car accidents, drivers are required by the law to be
careful in their encounter with anybody on the road including people in other vehicles,
passengers, and also pedestrians. It is referred to as the duty of reasonable care. Sandvik (2018,
p.358) asserts that to determine if a driver was not careful or to be considered to have breached
the duty of care, his or her behavior is compared to that of a reasonable person. Therefore, if the
driver’s behavior is falling short of the way a reasonable person would have behaved, then the
driver will have violated or breached the dirty of reasonable care (Sandvik, 2018, p.358).
Therefore, as a driver, Tom owes a duty of care to pedestrians such as Frida.
In Tom’s case, he owes a duty of care to a greater extent to Frida who is a cyclist, where
even though she was not hit but the lorry, the incident caused her a mental illness. It is because
drivers must be careful in driving their vehicles. Sandvik (2018, p.358) indicates that drivers are
required by the law to utilize reasonable care in order to avoid causing harm to anybody using
the road. There are specific requirements that tort law imposes on drivers such that a driver’s
failure to meet them means that such a driver violates the dirty of reasonable care. According to
Beran (2017, p.121), drivers are required to be vigilant and always keep a proper lookout by
being alert and by maintaining a careful lookout for pedestrians, vehicles using the same road as
well as road hazards. Tom fails to observe this rule because through his careless driving, he
almost hit Frida who is a pedestrian leading to her mental illness. In this case, his behavior
violates the principles of reasonable duty of care. He was expected by the law to see the things
happening on the road that an ordinary person can see which constitutes negligence.
Drivers are also required by the law to be able to control their vehicles on the road. In
Tom’s case, it is indicated that he lost control of his lorry which led to it veering out of the road
into the pavement and ramming into a shop by the side of the road. Beran (2017, p.121)
articulates that the law requires that drivers keep their vehicles under control through, for
instance, their ability to quickly stop the vehicle. Cameron (2019, p.12) adds that negligence is
inferred when a car loses control such as leaving the road or overturning for no ostensible reason.
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It, therefore, means that by losing control and leaving the road causing destruction and hitting
Benni and Agnetha who permanently becomes disabled, Tom owes them a duty of care because
he should have been careful to avoid oozing control as required by the law.
The case provided indicates that Tom lost control of his lory as he turns a corner which
then ploughs onto the pavement and into a shop after missing a pedestrian called Frida. In most
cases, vehicles lose control when turning corners because of diverse reasons. Beran (2017,
p.121) indicates that the majority of road accidents caused by drivers losing control of their
vehicles emanate from turning corners at extremely high speed. The law indicates that drivers
have an obligation to drive at a prudent and reasonable speed and those drivers that maintain a
high speed in light of prevailing weather conditions, road, traffic, and visibility issues are
considered negligent. Driving at corners requires drivers to exercise caution especially when
visibility is low especially when there are pedestrian crossing and other conditions. Therefore,
given the above provisions by law, Tom owes a duty of care to the injured persons because it is
due to his failure to meet the requirement of ensuring that he considered the speed limit at the
corner to avoid losing control of his vehicle. If he had followed the above requirement, Agnetha,
Benni, Suri, Ashok, and Frida would not have found themselves in the situation they are in after
the incident.
The cause is a critical aspect in the determination of negligence in tort law that has to be
examined to dentine if one had a duty of care or not. In Tom’s case above it is clear that his
actions demonstrate that he owed the five people affected a duty of care. According to Sandvik
(2018, p.359), to determine a breach of duty, there must be proof that the breach or the violation
was both the proximate and the actual cause of the harm on the plaintiff. Regarding Tom’s case,
it is indicated that by losing control of his lorry at the corner, he misses the pedestrian, Frida, but
rams into the shop hitting Benni and Agnetha. As a result, his actions led to the hospitalization of
Benni and Agnetha permanently maiming her in the process. Therefore, given that his action of
losing control of the lorry caused their suffering, it means that he owes them a duty of care which
he breaches by failing to observe the traffic laws.
The other key aspect of detraining from the duty of care in negligence tort is the issue of
foreseeability. According to Steel (2019, p.7), the nature of the duty of care as well as the
specific individuals owed, are dependent on the situations surrounding the behavior of the
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individual. Cameron (2019, p.34) adds that even though there is no universal way of testing the
duty of care in negligence, the inquiry’s threshold has often been if the alleged harm could have
been possible for the defendant to foresee. It means that drivers have to ultimately understand
that the test of the presence of negligence in their behavior or actions is based on the
foreseeability of the fact that failing to observe certain rules, regulations, and things could cause
harm. Stoyanova (2020, p.632) concludes that the above statement does not mean that one
should be found to have been able to foresee the harm but the question would be if an ordinary
person in the position of the defendant would have foreseen it. Therefore, in Tom’s case, it is
clear than any ordinary person would have foreseen that turning a corner at a speed that makes it
impossible to turn the lorry would lead to losing control of the lorry making veer off the road
causing injuries to pedestrians, property on the side of the road and even people in buildings. It,
therefore, means that given the foreseeability of his actions causing the damages he caused to the
mentioned people, Tom has a duty of care for causing their injuries and suffering.
The examination of the duty of care is also made possible in any case by the issues of
proximity and fairness. These two concepts are applicable in the case of Tom and the five other
people that his driving led to their injuries. Anns V Merton London Borough Council (1977)
defines proximity as the sufficient closeness of the parties so that it becomes reasonably
foreseeable that either the negligence of either party caused the manage, injury, or the loss to the
other party. On the other hand, Caparo Industries plc v Dickman (1990) asserts that fairness
means that it becomes just, reasonable and fair for one of the parties to owe a duty of care to the
other. Tofaris (2018, p.454) provides an example of a road accident where one party’s vehicle
rams into the back of another party’s vehicle and concludes that for proximity, the other party’s
vehicle must be seen to have been driven into the other vehicle’s rear side for sufficient close to
being established and which will make it just, fair and reasonable for the other party to owe a
duty of care. Therefore, for Tom, he owes a duty of care because he lost control and nearly his
Frida but hit and injured Agnetha and Benni and due to hitting Agnetha and Benn, he causes the
suffering Suri with depression, Ashok’s mental illness, and Frida’s mental illness. Therefore, due
to this fact, it becomes fair, just, and reasonable for Tom to owe them a duty of care.
In conclusion, tort law is important in the determination of whether someone should be
held responsible or legally accountable for causing injury against another person and also the
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kind of compensation that the injured person will be entitled to. In Tom’s case, losing control of
his lorry at the corner indicates that he failed to follow the traffic rules, he is required by law to
exercise caution while driving to look out for people using the road, other vehicles, and
passengers. He is also required to take control of the vehicle without failure and he should have
foreseen that failing to follow guidelines on road safety would have led to the injuries. Proximity
and fairness towards the other parties also play a critical role in his case proving that he caused
bodily harm to the other parties. Therefore, his failure to observe the law led cause injuries to
Frida, a cyclist who later becomes mentally ill, and Benni who is hit by the lorry leading to
injuries. The lorry Agnetha and becomes permanently disabled and she’s taken care of by her
mother Suri who eventually duffers from depression as well as Ashok suffering from mental
illness. As a result, Tom owes them a duty of care due to his negligence.
PART B
Question 6: Should employers always be held accountable for their employees, no matter
how outrageous an employee’s act might have been?
Employer liability is a common concept when it comes to tort law on employment. These
laws cover the circumstances surrounding the workplace. In most cases within organizations,
injuries or harm arises from the actions of the employees that have to be addressed by the law
which explains where laws are governing the conduct of employees within the workplace. In
numerous situations, companies are held accountable for the actions of their employees while
conducting the business of the organization. However, the biggest question that arises is whether
employers should always be held accountable for their employees, no matter how outrageous an
employee’s act might have been? Even if this is the case, it has always remained that the
employers, in most cases and not the employees are held accountable for the actions or the way
the employees conduct themselves. This is always true or the case even in the scenarios where
the employer did not have any intentions of causing harm. It is also the case even if the employer
did not take part or did not have any role physically in causing the harm. The best way to
understand the reason behind it requires one to comprehend two most impotent concepts which
underlie the liability of employers which will be discussed in this paper. Therefore, this paper
argues that employers should not always be held accountable for their employees, no matter how
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outrageous an employee’s act might have been. It is dependent on whether the action took place
within or out of their line of duty.
There have been various scenarios where organizations have been held accountable for
their employees’ actions that cause harm to others while at work. According to Lockwood,
Henderson and Stansfield, (2017, p.27) indicate that under a variety of legal theories, employers
have been found accountable for the actions of their employees that led to injuries to customers,
other employees, and even total strangers. As indicated earlier, the best way to understand the
reason behind it requires one to comprehend the two most impotent concepts which underlie the
liability of employers. Lockwood, Henderson, and Stansfield, (2017, p.27) indicates that
employers are always considered as the ones directing or guiding the behavior of the employees.
Therefore, due to this responsibility given to the employer, it means that employers are obliged
to share in the bad as well as the good of the employees’ behavior. Through the same perfunctory
to which employers are entitled legally to the employees’ labor rewards or profit, the same
employers also have the legal liability if the resulting behavior of employees in the workplace
leads to harm to other people.
The other important issue to note when it comes to this case is that whenever an
individual is harmed or injured and compensations are required, the most significant issue that
arises is the question of who will pay for the compensation; the employer or the employee?
According to Coetzer and Danana (2020, p.16), whether it is considered fair or not, any legal
system will always have the interest of ensuring that it makes the victim whole and ensuring that
it assigns the liability to the employers and not the employees have the best opportunity of
meeting the objective or goal. However, Lockwood, Henderson, and Stansfield (2017, p.27)
assert that even if the goal of the court is to assign the employer the liability of employees’
actions, it does not mean that every action of the employee will fall under the employer’s
liability sine there are boundaries to their actions depending on diverse conditions.
The boundaries drawn when examining such cases is whether an employee’s action was
done within their duty or workplace or they occurred out of such premises. Therefore, what the
courts look at in imposing the employer liability is the context of work-related accidents.
Lockwood, Henderson, and Stansfield (2017, p.28) articulate that an employer is vicariously
liable based on the “respondeat superior” doctrine for any acts of negligence or any omissions
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committed by employees within the course of their employment. For an employee’s action to be
considered as within the employment course, the actions should be closely concerning the
actions that employers have authorized such employees to do or the actions have been authorized
by the employers (Lockwood, Henderson and Stansfield, 2017, p.28). In such scenarios, the
employers are always bound to be held responsible or accountable for the behaviors of the
employees. It, therefore, means that there is normally a big difference between employees that
causes harm or injuries not related to their jobs and those employees who commit acts in ways
that cause harm or injuries in their line of duty. In most cases, according to Lockwood,
Henderson, and Stansfield (2017, p.28), the legal system uses the term “frolic” and “detour” in
signifying the differences.
“Detour” and “Frolic”
It is important to understand the differences between “detour” and “frolic”. Such
differences are critical to the understanding of the issue raised by the question in this case
because i9t highlight the differences, which supports the stand taken by this paper on the issue.
According to Brodie (2018, p.431), detour refers to the deviation from the overt instructions or
directions provided by the employer, but so related to those instructions originally provided by
the employer, which still makes the employer liable to such behaviors. On the other hand, Brodie
(2018, p.431), defines frolic, in simple terms as the employees behaving or acting in his or her
capacity instead of under the instructions or guidelines provided by the employer. There are
diverse examples that illustrate the differences above as explained below.
The first example provided by Middlemiss (2020, p.21) is a scenario where an
organization loans its staff vehicles from the sales department to be able to make sales calls in
the region. However, a scenario occurs where late in the night, one of the salesmen uses the
vehicle to drive out to enjoy herself or himself in a restaurant for purely personal pleasure.
Unfortunately, on his or her way to the restaurant, the employee hits a pedestrian who is injured
as a result. In such a scenario, the case will be considered as a “frolic”. It is because the employer
might not be held accountable for such actions since, even though the vehicle belongs to the
employer, the above employee was utilizing the vehicle for his or her interests that are out of the
line of duty or in deviation from the guidelines or instructions provided by the employer. The act
of hitting the pedestrian was not as a result of the employee conducting the business assigned by
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the employer as the primary reason behind the injuries caused. Therefore, this scenario explains
clearly that employers should not be held accountable for all of the employees’ actions even if
the actions are as outrageous as they are because of the boundary drawn above.
The second example is provided by Sankaran (2020, p.228) who provides a scenario that
explains “detour,” where an organization loans out its staff vehicles from the sales department to
be able to make sales calls in the region. Sankaran (2020, p.228) if the employee, as part of the
business assigned to him or her by the employer is encouraged to take its potential customers out
for drinks and dinner, then in one of the nights, after the employee taking one of the customers
for a drink and dinner and heading back home hits a pedestrian, the case is different. It is because
the employer or the organization will likely be held accountable for the employee’s behavior that
caused the injuries to the plaintiff. Sankaran (2020, p.228) explains that this is likely to occur
because the employee was acting base on the instructions given to him or her to offer such
aftersales services to the customer. It means that the behavior was linked to the course of
employment. Sankaran (2020, p.228) adds that employer liability, in this scenario will become
ambiguous on a scenario where the employee happens to have been under influence such as the
influence of alcohol or is found to have been intoxicated in one way or the other. It is because
this should be a behavior that is against the policy and values of the organization which means
that the employer might have informed the employee to avoid it. Therefore, this example clearly
explains how an employee can be held accountable and scenarios where employee acts can be
within the course of employment but still fail to hold the employer accountable for their actions.
It, therefore, supports the researcher’s argument in the paper.
Negligent retention or hiring
The other critical aspect of the law supporting the argument of the paper is the issue of
negligent retention or hiring. It supports the argument that employers should not always be held
accountable for their employees, no matter how outrageous an employee’s act might have been.
It is dependent on the condition that the act took place within their line of duty is discussed in
this section. According to Sankaran (2020, p.229), hiring negligently, or liability of retention,
unlike work-related misconduct, emanates from actions undertaken by employees outside his or
her employment’s scope. It is a very common instance for such behaviors to make the employer
accountable for the criminal conduct or actions of the employee, which is out of the employment
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scope. The foundation of liability in such a case is that the organization or the employer was
behaving or acting carelessly while hiring a criminal candidate for the job that such an employer
had the obligation to investigate before allowing the employee to cause injuries or harm while
conducting its business.
Numerous examples illustrate such a case above. One of such examples is provided by
Fiser and Hopkins (2017, p.44) where a company selling ice-cream hires a male salesperson who
eventually, sexually harasses a minor to drive the ice-cream vehicle and sell, on his behalf, the
ice-cream to children. In this scenario, the employer will likely be liable for the behavior of the
employee above because it was its act of hiring the salesperson with a bad criminal record,
negligently, that led to the assault of the minor. Another example is offered by Brodie (2018,
p.436) who explains a scenario where an elder caring facility hires a lady who is convicted of
identity theft and fraud to take care and look after its facility patients. The facility, which
happens to be the employer, in such a case, is likely to be held accountable for any actions that
will be committed by the employee against the law such as scamming elderly people in the
facility. Brodie (2018, p.436) indicates that the reason behind it is that the facility negligently
hired a woman who had already been convicted of fraud and scamming elderly people and
providing her with access to persons who are her potential victims.
In conclusion, this paper argued that employers should not always be held accountable
for their employees, no matter how outrageous an employee’s act might have been. It is the case
as long as the action took place outside of their line of duty. The paper found out that employee
employer’s liability has boundaries beyond which they cannot be liable to the actions of their
employees. It is because of the concept of detour and frolic which explains diverse scenarios
under which employees’ action can be or cannot be accounted for by the employer. Under
detour, it became apparent that the employee’s actions are in line with the employer’s
instructions where the employer is held accountable for the actions or behavior of the employee.
Frolic, on the other hand, explains that the employee’s actions are committed away from their
course of employment such that any harm caused will not hold the employer accountable.
Importantly, the argument of the paper was supported by the concept of negligently hiring or
retaining an employee who had a previous criminal record or behavior such that if they commit a
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crime or misbehave causing harm to other employees, customers, or strangers in their lien of
duty, the employer is still held accountable for hiring such employee without due diligence.
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References
Beran, R.G., 2017. Concussion-A Question of Negligence. Med. & L., 36, p.121.
Brodie, D., 2018. Employers’ Liability and Allocation of Risk. Industrial Law Journal, 47(3),
pp.431-439.
Cameron, G., 2019. Negligence and the Duty of Care; the Demise of the Caparo Test; and Police
Immunity Revisited: Robinson v Chief Constable of West Yorkshire.
Coetzer, N., and Danana, M., 2020. Can an employer exclude vicarious liability by agreement?:
employment law. Without Prejudice, 20(7), pp.16-17.
Fiser, H.L., and Hopkins, P.D., 2017. Getting inside the Employee's Head: Neuroscience,
Negligent Employment Liability, and the Push and Pull for the New Technology. BUJ
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Goudkamp, J., 2017. Breach of Duty: A Disappearing Element of the Action in Negligence?. The
Cambridge Law Journal, 76(3), pp.480-483.
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Lockwood, G., Henderson, C., and Stansfeld, S., 2017. An assessment of employer liability for
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Journal of Law and Management.
Mulheron, R., 2016. Principles of tort law. Cambridge University Press.
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