Steps of Negligence
Negligence means not providing adequate caution or attention to somebody or something when it is ethically necessary for certain circumstances. A person can file a civil suit against the negligence of another person, which caused him damage or monetary harm. The steps of negligence include the duty of care, meaning the defendant must have a legal duty for care. The harm could be avoided by doing or not doing of some act by the defendant. There must be an assumption of risk meaning, obvious risk, injured must be aware of the risk and no proactive measures were taken to avoid such risk. A recent example is Stokes v House With No Steps case, where the employee was injured due to the negligence of employer and the court awarded $775,048 in damages.
Misrepresentation means while preparing a contract providing false information by one party to another, which encourages them to enter the contract. Then due to such false fact, party suffers a loss. The steps of misrepresentation require there must be a misrepresentation of fact. That fact must be false and the person representing fact must know the truth. The intention of representation was to encourage another party to enter a contract and the party did rely on such fact. The party suffers harms due to relying on such fact.
A business is required to maintain certain guidelines to avoid negligence suit. For example, a retailer has a duty towards individual, customers and inspector who arrives at his store. Any misplaces well which causes the person to trip can become the reason for a negligence suit. Or if a mechanic gives his customers a vehicle which is not safe to drive and it causes an accident, it is considered as negligence. It is the duty of retailer to maintain the proper safety of peoples arriving at his store and the products they sold.
While entering into a contract a business can misrepresentation some facts. For example, if a salesman knows that brakes are failed in a car but he tells his customers that the brakes are fine. False advertisement by a retailer can be called misrepresentation, such as advertising ‘our cream make you fair in a week’ or ‘100% marks by reading our book’. The damages incurred by customers due to such false advertisement can become the ground of misrepresentation suit against a retailer.
While giving an advice to customers or a person, the advisor should understand his duty of care. A sensible level of care should be maintained by advisor while giving an advice. An advice can be oral or written. The penalties of false advice are same in the case whether the advice was written or oral. It is advisor’s duty to maintain care that the oral advice is expressed properly, which is adequate for an individual to understand, considering the changes in language and education. If the advisor failed to convey the right advice it will be considered as negligence. In case of giving false advice to an individual with a motive to encourage him to perform a certain task, is called misrepresentation. If an administrative officer, who is expected to be an expert of the department, has given false advice to an individual, it will be considered as misrepresentation. For example, it is negligence of lawyer if he gives wrong information about the time limit of a case, which lost the person his right of suit. Misrepresentation of good products by the seller when he actually sold bad products, which cause injury to customers, can be intuited as a suit.
Steps of Misrepresentation
The consequences of a negligence or misrepresentation case depend upon several factors, which are related to claim of breach of duty by business. The business can argue that there was no duty to care in the first place, or that a reasonable individual would have proceeded in the same manner. The burden of proof is on the claimant to prove the breach of duty by the defendant. If claimant shows the control of defendant over the situation and high possibility of damage happening than the burden of proof shifts to the defendant, to prove claimant wrong. The consequence and amount of remedy depend upon the degree of damage or its future consequences. If it is proved that a person has suffered injury due to negligence or misrepresentation of a business than the court can award financial damages for recovery of the injury of the claimant. Or the court can award punitive damages to penalise defendant for his or her act of negligence or misrepresentation.
There are several defenses available to the defendant in case of Negligence. Following are few of the defenses:
- Contributory Negligence: If the actions of the plaintiff are below a certain level for their own protection than defendant can use it as a defense for their conduct. For example, if a factory worker’s face gets burnt due to low safety guidelines of the factory, but the worker forgets to wear his face mask which could have avoided such damage than it can be used as a defense by the factory. A recent case of contributory negligence is Nettleton v Rondeau, where the plaintiff’s act was considered as contributory negligence.
- Comparative Negligence: The defendant can use plaintiff’s partial or full involvement, as a defense for negligence. Then the amount of recovery can be reduced up to the percentage of plaintiff’s involvement. For example, if a customer failed to read the safety guidelines and it caused an injury, then the amount of recovery can be reduced by such percentage.
- The assumption of Danger: If the danger in a certain activity is obvious and the claimant can assume such risk, then the claimant might not able to recover damages for his or her injuries from the defendant business. For example, if customers can assume the risk of buying a certain product, but still failed to maintain proper safety standard, then he or she is not able to file a suit for damages.
There have been several cases of negligence and misrepresentation which provided the requirement of a case. Following are few of its examples:
- In this case law Mathews v Winslow Constructors (Vic) Pty Ltd, the employer failed to provide safe work environment to Mathews, who got bullied, sexually harassed, and abused which caused her psychiatric damages and depression. The court awarded $380,000 to Mathews for her damages from the business.
- The Stella Liebeck v McDonald’s Restaurantscase is one of the most popular cases, where an 80 years old woman was injured with third-degree burns because the McDonald’s coffee was way hot. The court awarded an amount of 2.7 million to Liebeck.
- In Swan v Monash Law Book Co-operativecase law, the court awarded $300,000 for general damages and $600,000 for damages due to the negligence of business against workplace bullying.
- In the case of Sear v Kingfisher Builders,the judge Ramsey J awarded a damage recovery of £295,378.37, for the fraudulent misrepresentation. If the misrepresentation has not been made, the plaintiff would have a similar amount.
A public authority or statutory authority is the individuals who were provided power by statutes to perform the task of serving the public. In order to ascertain the negligence of public authority, the court applies policy/operation distinction. An act of statutory authority cannot be considered as negligence if there is a matter of policy. On the other hand, if the act is operational, it can be considered as negligence. Policy means the regulations set by a statutory authority after analysing its financial restraints. Operations are the actions taken by a public authority to implement the policy. For example, if the council pass a regulation to clean the roads twice a day and a person cut his leg due to a broken glass on the road than such person has a right to file suit against the council. However, if the public officers have clean the road twice than the person does not have right to sue for increasing the number of cleaning a day. If a public officer act outside his power or jurisdiction, then such officer, can be liable for omission or negligence. In the recent case of Tomlinson v Congleton Borough Council, the court held council liable for contributory negligence and ordered 2/3 damages to be recovered by them.
Business Guidelines to Avoid Negligence Suit
If a customer, authority or any other party gets affected due to negligence or misrepresentation of a business, they have a right to file a civil suit against them. The plaintiff has to prove that there was a duty of defendant for care and such duty was breached. The breaching of such duty caused monetary or non-monetary harm to the plaintiff. The burden of proof is upon the plaintiff to prove the negligence of the defendant. In the case of PT Civil Engineering v Davies, the claimant was not able to establish a connection between the accident and injury caused due to a van, therefore it did not consider as negligence by the court.
The primary remedy for negligence or misrepresentation is the recovery of damages. The reason for filing a suit for negligence is so that plaintiff can recover the damages that were caused due to lack of care by the defendant. The damages of plaintiff must be reasonably foreseeable meaning a sensible individual would have foreseen the harm. The court can award both punitive and monetary charge on the defendant; it depends upon the circumstances of a case. For example, in case of ISS Security Pty Ltd v Naidu & Anor the plaintiff received $1.9 million for damages.
Usually, the Torts that apply to a business are related to unfear trade practices of such business. There is a wide variety of Torts that applies to a business. Following are few of them besides negligence’s and misrepresentation, there are several other torts that applies to a business, following are few examples
- Wrongful Interference: In this case, a business intentionally or unintentionally interferes without other legal businesses. The business interferes with other businesses opportunities, customers and right to earn.
- Unfair Competition: This is similar to trademark or copyright breach, where a business manufactures a product which is confusingly same to another product. False advertising is also a part of the unfair competition.
- Disparagement: This happened when a business made a false statement regarding the quality of a product or service, which causes damage to plaintiff. Wrong negative revise is a part of disparagement.
- Computer Tort: Intentional harm to a hardware or software of a business computer can be considered as a tort if it impacts the business’s ability to earn revenue.
- Restraint of Trade: It refers to an illegal action to restrict the trading process of a party, who are conducting their business legally. Due to such act, the plaintiff suffers loss.
Tort is a necessary part of civil liability act because it forced individuals, businesses and public authorities to perform their duty with care. In modern business, the impact of tort has been significant. The business torts usually cover the unfair trade practices conducted by a business which causes damage to another individual, company or another party. Generally, the law of torts cover damages such as property loss, monetary loss, bodily harm or other, but in case of business torts, the injury is relating to the interest of another business. The damage can include loss of right to earn, opportunities, customers loss, reputation loss, business relation loss or other. The law of tort relating to business does involve damages which may happen in future, instead of damages occurred in the past. Due to this fact, the law of tort is significantly complex in case of business. Therefore, the applicability of the law of tort in business is considerably important to secure the interest of individuals, business or other parties.
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Stokes v House With No Steps [2016] QSC 79
Nettleton v Rondeau [2014] NSWSC 903
Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728
Stella Liebeck v McDonald’s Restaurants [1994] Extra LEXIS 23 (Bernalillo County, N.M. Dist. CT. 1994)
Swan v Monash Law Book Co-operative [2013] VSC 326
Sear v Kingfisher Builders [2013] EWHC 21 (TCC)
Tomlinson v Congleton Borough Council [2003] 3 WLR 705
PT Civil Engineering v Davies [2017] EWHC 1651 (QB)
ISS Security Pty Ltd v Naidu & Anor [2007] NSWCA 377
Civil Liability Act 2002 (NSW)
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