Question:
Discuss About The Negligence Misrepresentation Physical Injury?
The non-performance of ethical duty for keeping proper attention or care while performing or dealing with certain tasks is known as Negligence. As per Civil Liability Act 2002 (NSW), a lawsuit can be filed with any monetary or physical injury, caused by another person or business’s negligence. There are few steps to prove negligence in the court. According to section 5B of Civil Liability Act 2002 (NSW), the first step includes ‘duty of care’; negligence arises only when someone has a duty of caution or care for performing certain actions. Section 5D provided that injuries caused to plaintiff could be avoided if such duty were performed with caution. As per section 5F, the threat must be obvious from a reasonable person’s view and no actions were taken by the defendant to avoid such threat (Barker, Cane, Lunney and Trindade 2012). In Stokes v House With No Steps [2016] QSC 79 case, the employer failed to perform his duty to keep his employees safe. The negligence of employer causes an injury to the employee and the court awarded $775,048 as damages (Bismark 2012).
Providing or representing any wrong fact as real to lure someone into entering a legal contract, which eventually caused loss to such party, is known as misrepresentation. As per Marston and Walsh (2008), the first stage of misrepresentation includes presenting a false fact as correct to another party. The defendant must intentionally present a false fact to another party. The intention of the defendant is to motivating another party to enter into a legal contract by relying upon such false fact. The party suffered a monetary loss due to such illegal contract based upon false fact.
According to Bryant (2016), it is a necessity for businesses to maintain proper caution at the workplace to avoid any legal suit for negligence. It is the legal duty of businessman to take proactive measures to avoid any injury to customers, employee or officer, who visits his workplace. For example, a storekeeper left some sharp object on the ground of his shop, which causes injury to customers, then the shopkeeper can be liable for negligence. Another example, if a mechanic did not tell his customer regarding the failure of brakes in a vehicle, then he can be liable for injury caused to the customers, due to his negligence.
The example of misrepresentation by a business include, if a salesman sells a defective vehicle to customers by hiding the fault of the vehicle, it will be constituted as a misrepresentation of fact. False advertisement by an organisation also comes under the definition of misrepresentation. If a company show an advertisement of a shampoo than can regenerate hair in weeks, that will be considered as misrepresentation. In case any person believe on such fake advertisement and buys the product, and such product causes injury to such person, then the customers have right to file a lawsuit against the company.
When a person gives advice to another person, the person has certain duty to maintain caution while giving such advice. As per Chan and Kim (2005), a reasonable care should be maintained by the advisor while giving an oral or written advice. The penalties of wrong advice have the same impact in both oral and written. It is necessary for an advisor to analyse the difference of education or language while giving oral advice, so that other person correctly understood such advice. The failure of advisor to express the correct advice shall be considered as his negligence.
The false advice given by advisor with an intention to motivate another person to do a particular task shall be considered as misrepresentation. According to Lazaro (2013), the wrong advice given by an administrative officer, who is considered as a professional of such division, shall be determined as misrepresentation. For example, a law officer who gives the wrong deadline for a filing of a certain case, which causes loss to plaintiff because of not filing the suit, shall be constituted as misrepresentation by a law officer.
There are numerous elements which determine the consequences or penalties of negligence or misrepresentation, conducted by a business. McDonald (2005) provided that the business can provide a counter argument that there is no duty of care available or that a reasonable person would have done the same thing. The burden of proving the breach of duty by the defendant is upon the claimant. The claimant has to prove the control of defendant over a particular situation which could cause injury to some party without proper caution. The penalty and damages for negligence or misrepresentation are based upon the level of injury caused by the claimant or its future consequences. The court has to analyse and provide either monetary or punitive award to the claimant, as per the situation of the case.
The public officers and statutory authorities are the entities who perform various tasks to serve public, by the power provided to them by statutes. According to Stewart and Stuhmcke (2009), the negligence of public officers is determined by policy/operation distinction. The actions taken by a public authority under the guidelines of policy cannot be constituted as negligence. But, if the actions of the public officer are operational, then it will constitute as negligence. Policies are the guidelines created by the statutory authority after evaluating monetary restraints. The acts of public officers for proper implementation of policy are called operation. For example, if there is a policy of cleaning the road two times a day and public officers failed to do so, and a pedestrian cut his leg with the glass placed on the road. The pedestrian can sue the public officer for negligence. But if the road is cleared two times and still pedestrian cut his leg, the then pedestrian does not have right to sue for negligence. In Tomlinson v Congleton Borough Council [2003] 3 WLR 705 cases, the council held liable by a court for contributory negligence and two third amounts of injuries were collected by them (Williams 2005).
As per McGlone and Stickley (2005), any individual or company who suffers any loss or injury due to negligence or misrepresentation of a business can file a lawsuit against them for recovery of damages. The claimant has to prove the existence of a duty of care and breach of such duty by the defendant. After proving of negligence, the court can award either monetary or punitive damage to the claimant, which can be considered as a primary remedy for a lawsuit. The main reason of claimant for negligence lawsuit is to collect damages from defendant for his loss. The loss must be sensibly predictable from a reasonable person’s view. In ISS Security Pty Ltd v Naidu & Anor [2007] NSWCA 377 case, the employer held liable for conducting negligence in his duty for employee’s safety, and the court awarded $1.9 million to the employee for his damages (Jones 2009).
The applicability of tortious principles is necessary for business practices because it ensures fair and legal practices by businesses. The role of Torts has grown significantly in the modern world due to increase in a number of businesses. Various illegal or unfair trade activities of businesses are covered under tortious principles. According to Mortensen (2006), the Torts help injured customers or businesses to claim for damages, due to the negligent actions of businesses. The injury of negligence or misrepresentation includes loss of opportunities, clients, status, business connection, physical damage or other. While determining the amount of damages, the court also considered the future damages which will cause due to negligence or misrepresentation of a business. The tortious principles force businesses to perform their duty of caution and implementing fair trading practices, therefore, the applicability of tortious principles are significantly important in the business world.
References
Barker, K., Cane, P., Lunney, M. and Trindade, F., 2012. The law of torts in Australia. Oxford University Press.
Bismark, M.M., Gogos, A.J., McCombe, D., Clark, R.B., Gruen, R.L. and Studdert, D.M., 2012. Legal disputes over informed consent for cosmetic procedures: a descriptive study of negligence claims and complaints in Australia. Journal of Plastic, Reconstructive & Aesthetic Surgery, 65(11), pp.1506-1512.
Brooke, H., 2009. A brief introduction: the origins of punitive damages. Punitive Damages: Common Law and Civil Law Perspectives, pp.1-3.
Bryant, P.J. and AA, B., 2016. THE TORT OF NEGLIGENCE IN STEM LABORATORIES.
Butler, D., 2005. A tort of invasion of privacy in Australia. Melb. UL Rev., 29, p.339.
Chan, T. and Kim, P., 2005. The Legal liability of third party advice in Australia in light of recent developments.
Goudkamp, J., 2006. Can Tort Law Be Used to Deflect the Impact of Criminal Sanctions? The Role of the Illegality Defence’. Torts Law Journal, 14, p.20.
Jones, D., 2009. Workplace bullying: causes, symptoms, effects and the law. Brief, 36(3), p.13.
Killian, T. and Price, V., 2016. Fatigue management failings lead to $1.2 million judgment against multiple parties. Dibbs Barker. Retrieved from < https://www.dibbsbarker.com/publication/Fatigue_management_failings_lead_to_$1-2_million_judgment_against_multiple_parties.aspx >
Kleyn, W., 2016. Case note: Dealing with complaints of sexual harassment: A cautionary tale: Mathews v winslow constructors (vic) pty ltd [2015] vsc 728. Precedent (Sydney, NSW), (135), p.62.
Lazaro, C., 2013. REVOLUTION IN THE REGULATION OF FINANCIAL ADVICE: THE US, THE UK AND AUSTRALIA: THE FUTURE OF FIDUCIARY DUTIES FOR FINANCIAL ADVICE: THE FUTURE OF FINANCIAL ADVICE: ELIMINATING THE FALSE DISTINCTION BETWEEN BROKERS AND INVESTMENT ADVISERS. St. John’s L. Rev., 87, pp.381-1193.
Marston, G. and Walsh, T., 2008. A case of misrepresentation: Social security fraud and the criminal justice system in Australia. Griffith Law Review, 17(1), pp.285-300.
McDonald, B., 2005. Legislative intervention in the law of negligence: the common law, statutory interpretation and tort reform in Australia. Sydney L. Rev., 27, p.443.
McGlone, F. and Stickley, A.P., 2005. Australian torts law. LexisNexis Butterworths.
Mire, S.L. and Owens, R., 2014. A Propitious Moment: Workplace Bullying and Regulation of the Legal Profession. UNSWLJ, 37, p.1030.
Mortensen, R., 2006. Homing devices in choice of tort law: Australian, British, and Canadian approaches. International & Comparative Law Quarterly, 55(4), pp.839-878.
Stewart, P.E. and Stuhmcke, A.G., 2009. Australian principles of tort law. The Federation Press.
Williams, K., 2005. State of fear: Britain’s ‘compensation culture’reviewed. Legal studies, 25(3), pp.499-514.
Yap, P.J., 2010. Rethinking the Illegality Defence in Tort Law’. Tort Law Review, 18, p.52.
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