Describe about the Tort of Negligence for The Given Circumstances.
A. Parties
The parties to this case are Tahir as the plaintiff and Helen / Kim as the defendants.
Facts of the case
The facts, which have given rise to problems with respect to this case, are
Legal issue
Whether Helen/Jim are liable for the tort of negligent misstatement or not
Relevant laws
Negligent misstatement:
To determine whether the person has made negligent misstatement on not few tests are applied.
Fault: there has to be evidence, which shows that the person had negligently or intentionally committed a tortuous Act (Graham 2015)
Actual damage: the plaintiff has the burden of proof with respect to the damages or loss suffered by them because of the tortuous act, which took place (West 2015).
Duty of care: a individual must have a duty of care towards another person to be held accountable for the tort of negligence. By duty of care, it is means appropriate care, which a reasonable man would have taken in the same, circumstances (Michaud 2013).
Breach of duty of care: the individual who had the duty of care towards another had actually breached such duty of care with respect to the other individual. Further, such breach of duty has resulted in loss or damage to the other individual (Van Dam 2013).
Remoteness: whether the person who has committed the wrongful act could reasonably foresee the damages, which have been caused because of his actions (Goudkamp 2016)
In the case of SHADDOCK& ASSOCIATES PTY LTD V PARRAMATTA CITY COUNCIL [1981] HCA 59; 150 CLR 225 with respect to negligent misstatements the court provided with points of test to determine special relationship between the plaintiff and the defendant (Seiner 2014).
It has been realized by the defendant that the plaintiff has sought for their professional skills and based on their advice the plaintiff had made a decision which have caused damage or losses to him
The information, which has been exchanged by the parties, is related to serious business transactions. It has also been realized by the defendant that it would be reasonable for the plaintiff to rely of the information provided by him, in certain circumstance (Keating 2015).
Application:
Applying the elements of the tort of negligent misstatement to this case:
Duty of care: In the given circunstances, it can clearly be identified that Helen owed a duty of care towards Jim and Tahir with respect to the information provided by her about the old car. As she was an expert on old cars and had been appointed by Jim to give him appropriate advice based on which he purchased or sold the cars. As the car was sold by, Jim to Tahir based on the information provided by Helen, she is automatically owns of duty of care towards Tahir as well.
Breach of Duty: In this case the duty of care which was owed by Helen towards both Tahir and Jim with respect to the information provided by her about the old car has been breached, as the information was not correct. Jim based on the wrongful information provided by Helen, sold the car to Tahir and breached the duty of care he owed to his him. It is irrelevant in this case; that the report was subjected to Jim only because Helen had the knowledge that it would be used by him to sell the car
Damages: The wrongful information provided by Helen has caused loss to Jim as he had purchased the car with defects. Further loss had been caused to Tahir as he purchased the defective car from Jim, which had no prospect of making immediate profit.
Remoteness: it is appropriate in this case with respect to a reasonable man, that the wrong information provided by the expert could have caused losses to the persons who will purchase the car.
Conclusion:
Jim is liable to be sued by Tahir for negligent misstatement. However Jim can claim such damages from Helen .
Parties:
The parties to this case are Darius who is the plaintiff and Selina who is the defendant:
Relevant facts of the case:
Issue:
Whether Selina is liable for the tort of Negligent misstatement against Darius or not
Relevant laws
To constitute a case of negligent misstatement there has to be information provided by a person relying on which the other party does an act and ultimately suffer loss or damages.
In the case of Donoghue v Stevenson [1932] AC 562, the court provided that to determine whether the tort of negligence has been committed on not there has to be fore elements which as to be looked into (Keating 2014):
The defendant must owe a duty of care to the plaintiff; such duty does not have to be a contractual relation or a legal obligation.
The duty of care that the defendant owes to the plaintiff had been intentionally or negligently breached by the defendant.
The breach in the duty of care, which has been committed by the defendant, has caused loss or damages to the plaintiff.
The defendant could foresee that extent of the damages resulting from the act committed by him.
In the case of Hedley Byrne & Co v Heller [1963] 3 WLR 101 the court provided that the defendant does not own a duty of care towards the plaintiff if he has suffered a pure economic loss. However if the loss have been caused because of a negligent misstatement made by the defendant than the defendant is liable for the losses suffered him (Sperino 2014).
Duty of care: In this case, Selina did not have any legal duty of care with respect to Darius, as she was not a professional mechanic and had only little experience with respect to second hand cares. The tort of negligence does not concern the type of duty, which is present between the parties, it considers whether the duty of care is present or not. In this case, it was the moral obligation of Selina to provide Darius with the knowledge to the best of her abilities with respect to the car bought by him. Thus, a duty of care exists between them (Zipursky 2015).
Breach of duty of care: Selina had breached the duty of care and not provided Darius with the knowledge to the best of her abilities with respect to the car bough by him. She had seen the car had been badly repaired while she was inspecting the care and solely because she liked the car, she had urged Darius to buy it.
Damages: the information provided by Selina had made Darius purchased the car and subsequently he has discovered that the car was a crashed repair car, which had been written off and was worthless.
Remoteness: If the rule of remoteness is applied, in this case it could be determined that any reasonable man would assume in these circumstances that the information provided by Selina could result in the loss suffered by Darius.
Parties:
In this case, the plaintiff is Freya and the defendant is Jim.
Relevant Facts:
Issue:
The issue in this case is that whether Freya has claim of negligence against her employer Jim or not.
Relevant laws
As dissuaded earlier in the case of Donoghue v Stevenson [1932] AC 562, there are four main elements, which constitutes the tort of negligence. These elements are Duty of Care, Breach of Duty of Care, Damages, Remoteness of the Damages caused (Blom 2016).
The employer has a duty of care with respect to their employee with respect to providing safe working environments along with appropriate safety materials, which are essential with respect to the job of the employees. This concept of was made wider with the provisions of the case of Anns v Merton London Borough Council [1978] A.C where the court gave a tests to determine the existence of the duty of care this test is called the two stage test or the Anns test. The test indentifies that whether there was a duty of care between the plaintiff and the defendant and why such duty between them is deemed to exist (Iacobucci and Trebilcock 2016).
The four elements are widely explained by the following cases.
Caparo Industries pIc v Dickman [1990] 2 AC 605 House of Lords provided the Capro test to determin the duty of care with respect to physical injuries (Deakin, Johnston and Markesinis 2012)
Vaughan v Menlove (1837) 3 Bing. N.C. 467 provided with the objective test to determine the breach of duty of care (Goudkamp and Ihuoma, 2016).
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 provides the “but for” test for the purpose of determining the damages caused as a result of breach in duty of care (Eades 2015).
The Wagon Mound no 1 [1961] AC 388 House of Lords provided the test of remoteness to determine the foresee ability of the defendant towards the injury (Barker et al 2015).
Application:
Duty of care: If the capro test is applied in the given circumstances, it can be concluded that Jim as the employer has a duty of care to provide Safety equipments to his employee Freya for the purpose of her job.
Breach of duty of care: If the objective test is applied in, the given circumstances it is can be concluded that Jim had infringed the duty of Care he owed to Freya by not providing her the safety equipments with respect to her job.
Damages: it can be determined by Appling the “ but for” test in this case that Freya had suffered permanent damages to her eyes resulting in blindness because of the failure of the employer to provide her with appropriate safety materials for safely doing her job.
Foresee ability: If the test of remoteness is applied, in this case any reasonable man could conclude that the damages faced by Freya are a direct result of the breach of duty of care by Jim.
Conclusion:
Freya is entitled to successfully claim negligence against Jim as gym as breach his duty of cares which has resulted in damages with respect to her eyes.
References:
Barker, K., Grantham, R. and Swain, W. eds., 2015. Law of Misstatements: 50 Years on from Hedley Byrne v Heller. Bloomsbury Publishing.
Blom, J., 2016. Do We Really Need the Anns Test for Duty of Care in Negligence?. Alberta L. Rev., 53, pp.895-1031.
Deakin, S.F., Johnston, A. and Markesinis, B.S., 2012. Markesinis and Deakin’s tort law. Oxford University Press.
Eades, R.W., 2015. Torts Involving Personal Property (Vol. 1). Jury Instructions on Damages in Tort Actions.
Geach, N., 2015. Law Express Question and Answer: Tort Law (Q&A revision guide). Pearson Higher Ed.
Goudkamp, J. and Ihuoma, M., 2016. A Tour of the Tort of Negligence.
Goudkamp, J., 2016. Reforming English Tort Law: Lessons from Australia. Damages and Compensation Culture: Comparative Essays, Forthcoming.
Graham, J.C., 2015. Proof of Negligence. Florida Torts, 1.
Iacobucci, E.M. and Trebilcock, M.J., 2016. An economic analysis of waiver of tort in negligence actions. University of Toronto Law Journal, 66(2), pp.173-196.
Keating, G., 2014. Tort Liability as Compensation. Jotwell: J. Things We Like, p.208.
Keating, G., 2015. Is Negligence Law Less Objective than We Think. Jotwell: J. Things We Like, p.137.
Mendelson, D., 2014. The new law of torts. Oxford University Press.
Michaud, H., 2013. Tort Law: Concepts and Applications. Pearson Higher Ed.
Seiner, J., 2014. Title VII and Tort Law: A New Perspective. Jotwell: J. Things We Like, p.217.
Sperino, S.F., 2014. Tort Label, The. Fla. L. Rev., 66, p.1051.
Van Dam, C., 2013. European tort law. OUP Oxford.
West, R.L., 2015. Gatsby and Tort. Available at SSRN.
Zipursky, B.C., 2015. Reasonableness in and out of Negligence Law. University of Pennsylvania Law Review, 163, p.2131.
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