The first issue which is raised in this scenario is whether Jane has the right to sue Lily and claim damages for negligent misstatement. This issue is raised based on the negligent advice given by Lily to Jane. In order to determine Jane’s right, the elements of establishing a negligent misstatement will be evaluated along with analysis of relevant cases. This part will argue whether the advice given by Lily during the coffee break of the one-day course is considered as negligent misstatement.
A tort is referred to a civil wrong or infringement of a right which leads to legal liability. The law of torts focuses on determining when a person who has suffered any loss or injury due to the actions of another party has the right to recover damage for such loss or injury (Oberdiek, 2014). Various boundaries are provided by the law of torts to maintain a balance between the interests of the person who wanted to recover damages for the loss and who has suffered the injury. The tort of negligent misstatement is referred to an inaccurate or false statement which is made by a party honestly but carelessly. This statement is usually made by a party who has special skills and knowledge, and it is made to another party who did not possess those skills and knowledge (Barker, Grantham, and Swain, 2015). In today’s society, the tort of negligent misstatement is common, however, its roots back to medieval times and recognised by courts since. While filing a suit for a negligent misstatement by a party, there are certain elements which are necessary to be present. In case these elements are not violated by parties, then a suit for negligence misstatement cannot be filed.
The liability of negligent misstatement was recognised by the court in the case of Hedley Byrne v Heller [1964] AC 465. Prior to this case, the parties have to show recklessness while making a deceit claim. For example, the court provided in Candler v Crane, Christmas & Co [1951] 2 KB 164 that the accountants did not owe a duty of care while disclosing accounts to third parties (Campbell, 2016). However, Lord Denning dissented this ruling in the judgement of Hedley Byrne v Heller case. In this case, Hedley Byrne wanted to get reassurance regarding whether or not they should provide credit to another company, Eazipower. They get credit reference from Heller & Partners who were client’s bankers that provided in favour of giving credit. Hedley Byrne relied on the reference and suffered financial loss as the client went into liquidation. The House of Lords provided in this case that if the accountants knew about the occurrence of reliant transactions, then a duty of care can be imposed on their actions, however, they cannot be held liable on the facts. In this case, it was held that there must be a special relationship between parties and then reasonable reliance in order to hold another party liable for negligent misstatement (Barker, Grantham, and Swain, 2015).
While establishing a suit for negligent misstatement, three elements must be present. There must be the element of fault in which the parties must present proof which shows that one party has committed the tortuous act either negligently or intentionally. The plaintiff is also required to prove the element of actual damage in which it must be established that the plaintiff has suffered actual loss or injury as a result of the tortuous acts of the defendant (Hough and Kuhnel-Fitchen, 2014). The objective of the law of torts is to compensate the victim which means that the element of obtaining remedy must be present in which the court must put the victim in the position they enjoyed before the wrongful act took place. The court evaluates various factors while determining whether a party is liable for the suit of negligent misstatement or not. A person against whom a suit for negligent misstatement has filed must owe a legal duty of care. As per this duty, the person must take reasonable care which is expected from a reasonable person in a particular position (Ni Fhloinn, 2017).
There are three stages of providing a duty of care which include foreseeability of the damages based on the act or omission of the party. Proximity or close relationship between the parties of the dispute. The vulnerable of the plaintiff to suffer harm due to the result of defendant’s actions (Burns, 2013). These elements were identified by the court in the judgement of Cole v South Tweed Heads Rugby League Football Club Limited [2004] HCA 29 case. Another element is failure to maintain the standard of care due to violation of the duty. The standard of care is evaluated by the court based on an objective test which evaluate whether reasonable care is maintained which is expected from a reasonable person in a particular situation. Another element is that the damages must be caused to the plaintiff as provided by the court in Lindeman Limited v Colvin [1946] HCA 35 case. In case damages are not caused to the party, then a suit for negligent misstatement cannot be filed against a party (Hodgson, 2016).
In the given scenario, Jane visited one-day course called Gardening made easy of Lily who is a gardening expert. Lily clearly mentioned that she is happy to answer all the questions which are asked during the course. During the course, Lily gave advice to Bill who has a south facing garden similar to Jane, therefore, she writes down such advice. During the coffee break, Jane asked Lily regarding suitable plants for her garden, and Lily provided similar recommendations as she has given to Bill along with some other recommendations which were wrong since plants failed to thrive and it costs £1,000 loss to Jane. In order to hold Lily for negligent misstatement, Jane has to prove that certain elements were present in the parties. As per the principles discussed in Hedley Byrne v Heller case, a duty of owed by Lily as she possesses the skills and knowledge to know that those plants will not be able to thrive in a south facing garden. A special relationship exists between Jane and Lily since Jane went to Lily’s course to learn more about plants which thrive in her garden.
The element of reasonable reliance was present in this case as well since Jane relied on Lily’s advice. A duty of care was owed by Lily since there was foreseeability of risk, proximity relationship and vulnerability of Jane (Cole v South Tweed Heads Rugby League Football Club Limited). This duty was violated by Lily since she gave false advice to Jane which no reasonable person would in the particular situation. Although Lily has clearly specified that she will only give advice during the course and Jane ask for her advice during coffee break, however, she still owed a duty towards Jane. Moreover, Lily violated her duty towards her audience when she gave wrong advice to Bill as well. As discussed in Lindeman Limited v Colvin case, Jane suffered damages of £1,000 due to the negligent misstatement of Lily. Therefore, all the essential elements of proving negligent misstatement are present in this scenario based on which Jane has the right to hold Lily liable for claiming remedies for the damages suffered.
In conclusion, Jane is most likely to succeed in the case of negligent misstatement filed against Lily for the advice which she gave during the coffee break of the case. Although Lily specified that she would only answer those questions which are asked during the course, however, she owed a duty during the coffee break as well. Moreover, she also gave wrong information to her audience while giving advice to Bill, therefore, Jane is most likely to succeed in claiming remedies for her loss.
The key issue which is raised in this part is relating to whether Jane has the right to hold the railway company liable for private nuisance because the company failed to cut the Japanese Knotweed. The issue of private nuisance is raised in this part because the railway company has unlawfully interfered with the use and enjoyment of land right to Jane. In order to determine whether Jane will succeed in this case, it is important to understand the key elements of private nuisance.
Nuisance is a part of English law in the area of tort law which is broadly categorised into three parts which include private, public and statutory nuisance. A private nuisance is referred to a tort in which a party makes unreasonable, unwarranted or unlawful interference with another person’s private use and enjoyment of his/her property (Beever, 2013). A public nuisance is referred to a crime which is prosecuted by the Attorney General; however, the victim has the right to sue the defendant in tort for public nuisance. The definition of a statutory nuisance is provided by statute. This part will only focus on understanding and evaluating the element of private nuisance. A suit for private nuisance can be filed against a party in case another person interfere with his/her enjoyment and use of land. This principle focuses on protecting a person’s interest in land which is being adversely affected by the actions of his/her neighbour. Usually, the harm caused to a party is indirect as the tort of trespass protects a person against direct invasion. In Miller v Jackson [1977] QB 966 case, the court provided a good preliminary definition of the tort of private nuisance which is referred as the unreasonable use of land by a party which resulted in causing detriment to his/her neighbour (Samuel, 2016). Thus, there are two primary features of private nuisance which include protection of the right to use the land and protection from unreasonable interference.
The judgement given by the House of Lords by affirming the decision of the Court of Exchequer Chamber in Rylands v Fletcher [1868] UKHL 1 case is anomalous which gives rise to a special tort. In this case, the defendant hired an independent contractor in order to construct a reservoir on their land. The contractors failed to seal mines which were found during digging. After filling the reservoir, the water flooded through those mines and entered into the plaintiff’s property causing damages (Costello, 2014). The court held the defendant liable for the loss. Certain elements were identified by the court which is required to establish a suit for nuisance. The defendant must bring something onto his/her land which did not grow naturally. The defendant must use the land in non-natural way. The thing which is brought to the land is likely to cause mischief if it escapes. The thing must escape from the defendant’s land. Lastly, there must be foreseeability of damages. Based on these elements, a party can be held liable for nuisance, and the victim has the right to claim remedies from the defendant (Rose, 2016). The case of private nuisance is actionable per se, which means that the claimant is not required to prove damage.
In the case of Rylands v Fletcher, the court provided that there is a difference between things which grow naturally on land and things which are brought artificially by the defendant. Although the defendant in this case artificially brought water onto his land, however, this did not mean that a party cannot be held liable for failing to maintain things which naturally grow on land and which cause harm to his/her neighbours. A good example was provided by the court in the ruling of Lemmon v Webb [1894] 3 Ch 1 case. In this case, the court provided growing a plant in his/her land cannot be constituted as an infringement of a person’s right, provided that the party does so without entering the owner’s land (Bidwell, 2012). The party can be held liable for damage caused to another party based on the encroachment by tree branches or roots. In Hunter v Canary Wharf Ltd [1997] UKHL 14 case, the court recognised three types of harm which are considered as valid to file a suit for private nuisance. The first category is encroachment in which the actions of the defendant’s activities resulted in directly affecting the claimant’s property. The second category is physical damage caused to the claimant’s property due to the use of land by the defendant. The third category is interference with the claimant’s right to enjoy his/her property through cases involving noise or odour (Geach, 2012).
In the given scenario, Jane has discovered that Japanese Knotweed has encroached on to her garden which is situated on the railway embankment. She had read an article regarding the danger of Japanese Knotweed which could cause damage to her property and affect its value. She has made many requests to the Railway Company; however, it has failed to remove the Japanese Knotweed. Jane can file a suit against the Railway Company for private nuisance since it comes under the definition given in Miller v Jackson case. Although the elements discussed in Rylands v Fletcher case did not meet in this scenario since the Japanese Knotweed grow naturally on the land, and it was not artificially brought by the Railway Company, however, the encroachment resulted in adversely affecting the right of Jane to enjoy her property. Jane has the right to hold the Railway Company liable as per the judgement of Lemmon v Webb case in which the court provided that encroachment of branches or roots which resulted in causing damage to neighbour is considered as private nuisance. A similar judgement was given in Hunter v Canary Wharf Ltd case as well.
In conclusion, Jane can file a suit of private nuisance against the Railway Company since all the elements are present. Although the company can take defence under Rylands v Fletcher case by providing that the Japanese Knotweed grows naturally on the land, however, Jane can rely on the judgement of Lemmon v Webb case based on which she is likely to succeed.
The issue which is raised in this part is relating to the right of Freddie to file a suit against Jane under the Occupiers Liability Act 1957 for his leg injury. In order to determine whether liability can be imposed on Jane or not, it is important to understand the principles of the Occupiers Liability Act.
Occupier’s liability is referred to a field of tort law which is codified in statute. This area deals with the duty of care of a person who occupies real property, through lease or ownership, towards people who visit or trespass such property. This principle imposes a liability on the occupier that may arise from accidents which are a result of dangerous or defective condition of the premises. The Occupiers Liability Act 1957 provides various provisions in order to impose an obligation on occupiers towards lawful visitors. Section 1 (2) of this act provides the provisions for invitees. These are referred to those parties who have been invited to come onto the land based on which they have given express permission to be present on the land (Legislation, 2018). The occupier is identified as per the person who has legal control on the premises. A common duty of care is imposed on the occupier under section 2 (2) of the act which provides that the occupier must establish a uniform duty of care towards all legal visitors (Legislation, 2018). As per this duty, the occupier must take such care in all circumstances which are reasonable to see that visitor is reasonably safe during the visit of the premises.
The occupier has the right to set limits for the visitors like ‘what to do and what not to do’. However, an exception is given under section 2 (3) (a) of this act in respect of children. As per this section, the occupier owes a duty to be prepared for children to be less careful than adults since they are less mature than adults to understand warming boards in the premises (Greene, 2013). Therefore, the occupier must take reasonable care to ensure that children are able to avoid accidents in the premises. This principle was recognised by the court in Glasgow Corporation v Taylor [1922] 1 AC 44 case. In this case, a seven-year-old child died due to eating poisonous berries which were growing in the bush in a park. The House of Lords provided that these berries look like cherries which constitute an “allurement” to the child based on which the owner of the park, Glasgow Corporation, was held liable (Greene, 2017).
As per the Occupiers Liability Act, the obligation is imposed on occupiers rather than the landowners. This provision was recognised by the court in Wheat v E Lacon & Co Ltd [1966] AC 552 case. In this case, a family resided at a public-house where the husband fell down the stairs and died. The stairs were narrow and steep, and there was no light. A suit was brought under the Occupiers Liability Act 1957. This suit was filed against the Brewery Company, Lacon, which owned the public house and the managers, Mr and Mrs Richardson, who occupied the pub as a licensee (Amirthalingam, 2013). The court provided that an occupier is determined based on the degree of control which he/she exercised on the property. There could be more than one occupier of a property. It was held that Lacon has only granted a license based on which the right to repair is provided to the Richardsons. The court provided that Lacon has not violated the duty since the provision of light bulb comes under the management duties of the Richardsons who were not a part of the appeal based on which the claim was rejected by the court (Monaghan, 2015).
In the given scenario, Pat and her seven-year-old son Freddie visited Jane who has recently installed a large full-length mirror at the end of her garden to make it look bigger. Freddie was playing in the garden, and he badly cut his leg from the glass. As per the Occupiers Liability Act 1957, liability is imposed on Jane under section 1 (2) towards invitees. Since Jane was the owner of the land and she exercises control on the land based on which she has a liability towards visitors as given in Wheat v E Lacon & Co Ltd case. Under section 2 (2), Jane owes a common duty of care to ensure that she take reasonable care to protect its visitors from harm. In the case of Freddie, section 2 (3) (a) requires Jane to take extra care to ensure that the child is not harmed during the visit. This provision was further identified by the court in the case of Glasgow Corporation v Taylor. There were no sign of warning put up by Jane, and no extra care was taken by her to ensure that Freddie is not harmed. Therefore, she has violated her duties based on which she can be held liable under the Occupiers Liability Act 1957.
In conclusion, Jane has failed to comply with her duties as occupier provided under section 2 (3) (1) (a) to ensure that reasonable care is maintained to protect children from any harm caused in the premise. As per the judgement of Wheat v E Lacon & Co Ltd case, Jane is most likely to be held liable for violating her duties as an occupier under the Occupiers Liability Act 1957.
References
Amirthalingam, K. (2013) Occupier’s Liability and Negligence-Of Gordian Knots and Apron Strings. SAcLJ, 25, p.580.
Barker, K., Grantham, R. and Swain, W. eds. (2015) Law of Misstatements: 50 Years on from Hedley Byrne v Heller. London: Bloomsbury Publishing.
Beever, A. (2013) The law of private nuisance. London: Bloomsbury Publishing.
Bidwell, D. (2012) Of Trees, Vegetation, and Torts: Re-Conceptualizing Reasonable Land Use. Cath. UL Rev., 62, p.1035.
Burns, K. (2013) It’s not just policy: the role of social facts in judicial reasoning in negligence cases. Torts Law Journal, 21(2), pp.73-105.
Campbell, I.D. (2016) The absence of negligence in Hedley Byrne v Heller. Law Quarterly Review, 132(2), pp.266-277.
Candler v Crane, Christmas & Co [1951] 2 KB 164
Cole v South Tweed Heads Rugby League Football Club Limited [2004] HCA 29
Costello, R.Á. (2014) Reviving Rylands: how the doctrine could be used to claim compensation for environmental damages caused by fracking. Review of European, Comparative & International Environmental Law, 23(1), pp.134-143.
Geach, N. (2012) The Nuisance of the Proprietary Interest: Lord Cooke’s Dissent in Hunter v Canary Wharf Ltd [1997] AC 655. London: Wildy, Simmonds and Hill.
Glasgow Corporation v Taylor [1922] 1 AC 44
Greene, B. (2013) Course Notes: Tort Law. Abingdon: Routledge.
Greene, B. (2017) Optimize Tort Law. Abingdon: Routledge.
Hedley Byrne v Heller [1964] AC 465
Hodgson, D. (2016) The law of intervening causation. Abingdon: Routledge.
Hough, T. and Kuhnel-Fitchen, K. (2014) Optimize Contract Law. Abingdon: Routledge.
Hunter v Canary Wharf Ltd [1997] UKHL 14
Legislation. (2018) Occupiers’ Liability Act 1957. [Online] Available at: https://www.legislation.gov.uk/ukpga/Eliz2/5-6/31/contents [Accessed on 28th December 2018].
Lemmon v Webb [1894] 3 Ch 1
Lindeman Limited v Colvin [1946] HCA 35
Miller v Jackson [1977] QB 966
Monaghan, C. (2015) Beginning Business Law. Abingdon: Routledge.
Ni Fhloinn, D. (2017) Liability in negligence for building defects in Ireland, England and Australia: Where statute speaks, must common law be silent?. International Journal of Law in the Built Environment, 9(3), pp.178-192.
Oberdiek, J. ed. (2014) Philosophical Foundations of the Law of Torts. Oxford: Oxford University Press.
Occupiers Liability Act 1957
Rose, L. (2016) Untangling the Rule in Rylands v. Fletcher from Nuisance. NEL Rev., 4, p.127.
Rylands v Fletcher [1868] UKHL 1
Samuel, G. (2016) Epistemology and method in law. Abingdon: Routledge.
Wheat v E Lacon & Co Ltd [1966] AC 552
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