Legal Definition of Negligence
As per Civil Liability Act 2002 (NSW), if a person did not perform his duty to care or caution, which resulted in injury to another person, it is called Negligence. As per Feldthusen (2000), negligence is a person’s failure to take appropriate care over something, due to which some financial or physical injury occurred. Any person suffering injury due to another person’s negligence can file a civil lawsuit to recover damages. There are several factors to constitute a person’s negligence. Section 5B provides that the person conducting negligence must have a duty of care for controlling something. Without a duty of care, a person cannot prove another person’s negligence. The happening of injury must directly relate to the act of another person’s negligence. Section 5F provides that the risk factor of negligence must be obvious to a reasonable person. Section 5D provides that the negligence person must be aware regarding the obvious risk and no safety measures were taken by him. In the recent case of West Star Transportation, Inc. v. Charles Robison and Cherie Robison, 07-13-00109-CV (Tex. App. 2015), the court held the employer liable for the brain injury of employees, caused due to the working condition of the workshop.
Misrepresentation is knowingly representing a false fact or not correcting any wrong information, with an intention to lure someone into entering a legal contract. According to Cartwright (2002), the person who believes in such wrong fact and suffered loss due to a legal contract can file a suit of misrepresentation against another party. The required steps for misrepresentation include intentionally showing or not correcting any wrong information while entering into a legal agreement with another party. The person conduction misrepresentation must be aware regarding the false fact. The person entered into the legal agreement must suffer any financial loss due to relying upon the wrong information.
It is necessary that a business follow certain safety guidelines to avoid any lawsuit for negligence or misrepresentation. According to Owen (2006), there are several situations which can become the reason for business negligence suit, for example, it is the duty of business to maintain proper security measures for employees or customers visiting the workplace. If any employee or client suffered any injury or harm due to misplacement of tools or due to lack of proper protection of dangerous substances, then such business will be liable for the suit of negligence.
As per Harris and Bromiley (2007), if a business takes advantage of wrong facts to lure his clients into a legal contract, then such actions will be called a misrepresentation of facts. For example, if a person show manipulated financial account to his clients to give them false realisation that company is making huge profits to lure them into entering into a business contract, then such business will be liable for misrepresentation suit. False advertising by corporations to attract customers into buying their products are also a part of misrepresentation.
In case of giving advice to another individual or business, it is necessary that advisor maintain the proper duty of care to avoid any harm or injury due to such advice. As per Stickley (2016), it is the duty of advisor to ascertain the difference between language and knowledge while giving advice and make sure that another party understands the content of advice. If the advisor failed to fulfill his duty while giving advice, it will be considered as negligence. An advice can be oral or written; the legal penalties for both advice are same. Giving someone false advice to motive them for entering into the legal business agreement shall be considered as misrepresentation. Any false advice from a public officer who is considered as an expert of his department shall consider as negligence or misrepresentation. For example, a lawyer who gives the wrong deadline of a certain case to his client, due to whom the client failed to file his lawsuit which causes him a financial loss, shall be considered as negligence. If a consultancy firm gives advice to his clients for investing in a certain business which is facing huge losses, it will be considered as misrepresentation.
Factors to Constitute Negligence
According to Bismark et al. (2010), any negligence or misrepresentation conducted by a business can have different consequences. A business can present the argument in court that there was no duty of care available and any reasonable person would have done the same. It is the duty of an injured person to provide the negligence or misrepresentation of business. The burden of proof shifts to the defendant once the claimant proves defendant’s duty of care. The consequences of a case depend upon the level of negligence and loss suffered by the party. As per Barker et al. (2012), the court can assess the situation of a particular case an award financial or punitive damages to the party. The future opportunities’ loss can also consider by the court while assessing a number of damages suffered by the claimant.
- Comparative Negligence: As per Schwartz and Rowe (2010), a business can provide the argument that injury suffered by the claimant is not due to the complete negligence of business, the claimant was partially included in the negligent act. For example, if a customer buys a dangerous product and shopkeeper failed to provide proper safety guidelines for using such product to the customers then such shopkeeper shall be liable for negligence. But the customers could have taken some actions for own safety; therefore, the customers shall be liable for partial negligence. The court will reduce the number of damages up to the involvement of employee.
- Contributory Negligence: As per Stewart and Stuhmcke (2009), this defense is similar as comparative negligence in which defendant can provide an argument that claimed failed to take proper safety measures for his own safety. For example, in case an employee suffers injury by machinery because of the lack of safety measures taken by the employer, then such employer is liable for negligence. But if the employee failed to use safety suit provided by the employer, then such employee shall be partially liable for negligence as well. The Nettleton v Rondeau [2014] NSWSC 903 case is a good example, in which claimant was not riding his bicycle in cycle path and the defendant failed to use the brake in his car, the court provided that this was contributory negligence.
- Risk Presumption: According to McDonald (2007), if the risk of a certain product is obvious and still claimant failed to maintain safety measures than defendant can use it against the negligence suit. For example, if customers did not maintain adequate safety guidelines for him, then he lost the right to file a lawsuit for the negligence of another person.
- In the case of Stokes v House with No Steps [2016] QSC 79, the employer held liable for negligence for not maintain adequate guidelines for the security if his employees. The court awarded a financial reward of $775,048 for the damages suffered by the employee.
- In Kerle v BM Alliance Coal Operations Pty Limited & Ors [2016] QSC 304 case, the employer forces his driver to work for straight four days without any time to rest. The workload causes the exhaustion to the driver, which lead to health consequences. The court awarded damage of $1,250,000 to the employee for his loss (Douglas 2017).
- The Stella Liebeck v McDonald’s Restaurants [1994] Extra LEXIS 23 is a historic case where globally popular fast food restaurant chain McDonald’s held liable for negligence act. The company uses significantly high temperature for heating their coffee which causes third-degree burns to 80 years old Liebeck. McDonald’s has to pay $2.7 million as damages to Lieback for their negligence (Forell 2011).
The duty of care is similar for statuary or public officers, and they can be held liable for negligence or misrepresentation. According to Bailey (2006), their negligence is based upon policy/operation distinction. The operational acts of public authorities cannot be considered as negligent acts, where the acts outside policy come under the definition of negligence. The policy defines the outlines under which a public authority can act and the operational activities define the actions taken by them to maintain different policies. For example, a policy is established by the government regarding cleanness of roads two times in a day. If the public officers failed to clean the roads twice and a person suffers injury due to that, then such person can file a lawsuit against public authority. But if the public officer has performed his duty by cleaning the roads twice then such person cannot file a suit for negligence. In M v Newham London Borough Council [1995] 2 AC 633 case, the local authority failed to take actions for a five-year-old child to provide him child protection. The social workers provided that child face various risks such as abuse and bullying. The court held local authority liable for negligence (Jhaveri 2011).
In order to take action against a negligence lawsuit, the claimant has to prove the duty of care of defendant. As per Bhatia (2012), without defendant’s duty of caution or care, the claimant cannot file a lawsuit of negligence. Another step is proving the failure of maintaining safety precautions by the defendant which causes physical or monetary injury to the claimant. The PT Civil Engineering v Davies [2017] EWHC 1651 (QB) case is a good example, where the court denies the negligence claim due to lack of ‘duty of care’ for the defendant. The prime remedy for negligence suit is the reward for damages awarded by the court. The court can assess the claimant damages and give the order of payment to defendant. The present and future damages are analysed by the court while assessing the payment for damages.
Other than negligent and misrepresentations, there are numerous other Torts which apply to the activities of business (Mendelson 2007):
- Disparagement: Given the wrong statement regarding the poor quality of the certain product of another company, to reducing their market image in called Publishing of false poor reviews is also considered as disparagement.
- Wrongful Interference: If the actions of one business adversely interfere with another business process then it is called wrongful Interference. A business can interfere with future opportunities, business connections or clients of another business.
- Restraint of Trade: Performing certain actions to stop another business from trading in the market is known as restraint of trading. The business suffers some sort of monetary loss due to restraint conducted by another business.
- Unfair Competition: Manufacturing of a certain product which gives close resemblance to another company’s product is known as unfair competition. Trademark and copyright infringement comes under the definition of unfair trade. False marketing is also a part of the unfair
- Computer-related Torts: The use of computers and computer-related technology has grown significantly in past few decades. International damaging the hardware and software of other business computers which can cause them a financial loss is known as computer torts (De Groote 2009).
Tort’s principles applied to different illegal actions of business which causes damage to other parties. The number of businesses has grown significantly in past few decades, which increases the requirement of business torts. To reduce their competition, various businesses use illegal activities to obstruct the process of another company. Business torts apply over such acts to hold businesses liable for their acts. The principle of torts helps injured people to file a suit for damages for the negligence of a business. The law of torts has various principles regarding providing of financial damages to the suffered party from the guilt businesses. These penalties punish business for performing illegal activities. The tortious principle also force public authorities to perform their job without negligence, therefore, in modern times, the tortious principles are significantly necessary.
References List
Bailey, S., 2006. Public authority liability in negligence: the continued search for coherence. Legal Studies, 26(2), pp.155-184.
Barker, K., Cane, P., Lunney, M. and Trindade, F., 2012. The law of torts in Australia. Oxford University Press.
Bhatia, N., 2012. Legal clarification of loss of chance of a better outcome in Australia. Browser Download This Paper.
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.
Cartwright, J., 2002. Misrepresentation. Sweet & Maxwell.
De Groote, B., 2009. Jurisdiction problems regarding Internet torts: Critical remarks. Computer Law & Security Review, 25(5), pp.447-454.
Douglas, R., 2017. Duty content under the CLA. Precedent (Sydney, NSW), (140), p.4.
Feldthusen, B.P., 2000. Economic negligence: the recovery of pure economic loss. Carswell Legal Publications.
Forell, C.A., 2011. McTorts: The Social and Legal Impact of McDonald’s Role in Tort Suits.
Harris, J. and Bromiley, P., 2007. Incentives to cheat: The influence of executive compensation and firm performance on financial misrepresentation. Organization Science, 18(3), pp.350-367.
Jhaveri, S., 2011. Constructing a framework for assessing public authority liability in negligence: The role of public law norms, private law norms and policy arguments.
McDonald, B., 2007. The Impact of the Civil Liability Legislation on Fundamental Policies and Principles of the Common Law of Negligence.
Mendelson, D., 2007. The new law of torts. Oxford University Press.
Owen, D.G., 2006. The five elements of negligence. Hofstra L. Rev., 35, p.1671.
Schwartz, V.E. and Rowe, E.F., 2010. Comparative negligence. LexisNexis.
Stewart, P.E. and Stuhmcke, A.G., 2009. Australian principles of tort law. The Federation Press.
Stickley, A.P., 2016. Australian Torts Law. LexisNexis Butterworths.
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