40) What does a tort of deceit consist of? Can it be made by conduct?

Fraudulent misrepresentation (or deceit) is mainly the domain of the law of contract. But deceit is a separate tort, and its essential features are considered below. The tort of deceit consists in making a wilfully false statement with the intent that the claimant shall act in reliance on it, and with the result that harm is suffered as a consequence of acting upon it. The essentials of the tort are:

(a) A statement of fact.

(b) That the maker knew it to be false or had no genuine belief in its truth.

(c) That it was made with intent that it should be acted upon.

(d) That it was acted upon.

(e) Damage was suffered.

Mere expressions of opinion are insufficient. The statements are usually made orally or in writing, but a ‘statement’ or representation may be made by conduct, without words even.

41) What is the difference between deceit and malicious falsehood?

The essentials of malicious falsehood are:

1) That the statement is false;

2) That there is malice, i.e. a desire to injure, or some other improper motive.

3) That it tends to make others act on the statement to the plaintiff’s detriment.

The distinction from deceit is that in deceit the claimant is induced by the false representation to act to his or her own detriment; and the distinction from defamation is that in defamation the person’s reputation is primarily attacked.

There are three types of injurious or malicious falsehood: 1) Slander of title; 2) Slander of goods 3) Other false words which damage a person’s business.

42) What is meant by vicarious liability? How does it manifest itself in the relationship of employment?

Vicarious liability is liability imposed on an employer to a third party for the tort of his employee committed in the course of employment. This means that the relationship of employer and employee, as distinct from employer and independent contractor, has to exist and gives rise to vicarious liability. This is another form of strict liability in the sense that employer who is not at fault is made responsible for the employer’s default. It thereby gives the injured party compensation from the person who is better able to pay and spread the cost of injury, namely the employer.

In determining the relationship of employment it is necessary to consider several factors:

The relationship of employment

1) The issue of control. Where the "employer" controls the type and manner of performance of the work of the "employee", the relationship is likely to be one of employment.

2) The issue of integration. A person whose activities are integral to the enterprise (e.g. a ship's master or company chauffeur) is more likely to be regarded as an employee than someone whose activities are ancillary to the enterprise or temporarily attached to it (e.g. the harbor pilot or hire car driver).

3) The method of payment (whether wages or salary or a lump sum), the responsibility for providing premises, materials and equipment, and any provisions for disciplinary measures and dismissal.

4) The claimant does not have to identify the particular employee responsible provided it is clear that the tort must have been committed by one of the defendant's employees.

5) The tort must have been committed in the course of employment—this means the employee must have committed the tort while performing work he was employed to do at the time he was employed to do it. This necessarily includes the improper performance of work employed to do.

43) Who is the employee?

44) Is the employer responsible for the actions of independent contractors?

An employer will not normally be liable for the acts of an independent contractor. However, the employer may be liable where the contractor is in breach of a non-delegable duty binding on the employer. In such circumstances, while the employer can delegate performance of the duty to a contractor, he cannot delegate the duty itself and will remain personally (not vicariously) liable should the contractor breach that duty. Non-delegable duties arise in two main situations:

1) Where the commissioned work involves exceptional risk to others. Here the employer will be liable for any negligence by the contractor in the performance of that work but not any collateral negligence.

2) Where the employer owes the victim a duty of care for their safety and.

45) What duties are there on the occupier of premises? Who is an occupier in law?

One area where the law has identified a particular duty owed to others is that of the duty owed by occupiers to those who visit their premises. This is regulated by the Occupiers' Liability Acts 1957 and 1984.

This concerns the duty owed by occupiers to lawful visitors. Under the common duty of care section 2, occupiers owe a common duty of care to all lawful visitors to their premises. This is a duty to take reasonable care to ensure the visitor is reasonably safe when using the premises for all the purposes for which he is invited or permitted to be there. This applies to the visitor's physical safety in all circumstances but only to his property in respect of damage caused by structural defects.

46) What are the two Acts that regulate the occupier’s liability?

47) What defenses are available to an occupier?

There are three main defenses available:

1) The Occupiers' Liability Acts 1957 and 1984.

2) Warnings—where the occupier has given a clear warning of danger that, if observed, would make the visitor safe, the occupier is not liable for damage caused by the visitor's failure to observe the warning. Whether the warning is effective depends in part on the nature of the warning itself and in part upon the likely nature of potential visitors. A warning that may be effective against an adult visitor may not be effective against a child,

3) The Occupiers' Liability Acts 1957 and 1984.

—this may arise where the visitor was fully aware of the danger or risk on the premises, knew of the risk to himself this created and remained on the premises in the face of that knowledge.