Elements of Negligence Claim
The occupier of properties or people dealing with the public cannot escape the liabilities when they breach their duties. The work of the law of tort is to govern all these wrongs and their liabilities. In particular, This paper will focus on the scope of the tort of negligence and the tort of misrepresentation.
Torts of negligence are situations where people’s reckless actions progress to the harm of others (Beatty, Samuelson & Bredeson, 2013). A misrepresentation happens when one party’s actions make the other party believe that the conditions are true whereas it is untrue in a real sense (Beatty, Samuelson & Bredeson, 2013). Sometimes the issue of misrepresentation overlaps between contract law and the law of tort. In contract law, (Clarkson, Miller, Cross & Clarkson, 2015) states that the innocent party has a remedy of rescission whereas, in tort law, an injured party can obtain damages including punitive damages which are not available in the law of contract.
The court demands a claim for negligence to establish some elements. These are the duty of care, violation of that duty, reasonable and foreseeable prove that damages resulted from the breach of the defendant’s duty of care (Mann, Roberts & Smith, 2012).
The fundamental principle behind the duty of care is that while people enjoy their rights, they should ensure that they protect the right of others (Mann, Roberts & Smith, 2012). The concept of duty to care dates back to the landmark case of (Donoghue v Stevenson, 1932). The case developed what came to be known as the ‘neighbor principle.’
The claimant consumed beer in a café after which a decomposed snail appeared from the bottle. As a result, the claimant claimed damages amounting to £500 from the defendant who was the beer manufacturer. The judge held that every person owes a duty of care to others, and should protect them from any reasonably foreseeable danger.
The claimant should show that no reasonable man would have failed to do what the defendant neglected to do (Varuhas, 2014). The defendant must act with the care in which a reasonable person in his capacity would have acted. For instance, in (Nettleship v Weston, 1971), the defendant was a driver learner, on a third lesson learning from the claimant, the defendant hit the post injuring the claimant. The court found that a duty of care existed from the learner and he was liable even though he was an unskilled driver. Simply put, no reasonable third lesson-driver, a student would have acted in that manner.
Fundamental Principle of Duty of Care
Firstly, the claimant must show that the defendant neglects caused the losses or damages. The court usually assesses this factual matter through the ‘but for’ test (Varuhas, 2014). Secondly, the claimed loss or damages must be reasonable and foreseeable (Sohn, D. H., 2013). Simply put, they should not be too remote. A scenario for this situation is (Barnett v Chelsea & Kensington Hospital Management Committee, 1969) The husband died after being sent home without examination. The court found that even though the hospital neglected to examine the patient, with the examination or without it, he would have died out of the arsenic poisoning. Therefore, lack of examination was not the cause of death.
In (Beatty, Samuelson & Bredeson, 2013), a misrepresentation is an untrue statement that causes the other party to enter into a transaction or a contract. The elements of misrepresentation are; a false statement, it must be material fact, induction and innocent party’s reliance, and the damages foreseeably resulted from the misrepresentation (Clarkson, Miller, Cross & Clarkson, 2015).
For every misrepresentation, the guilty party must make a statement either orally, in writing, or in conduct (Gergen, 2013). This statement must then be false, it does not matter whether the statement was true at the time of negotiation, and then facts changed later. If facts change, the party should inform the other. Otherwise, it remains a misrepresentation. In (With v O’Flanagan, 1936), the doctor trading with the medical practice said the income was £2,000 per year in January. The income fell in May, but he did not disclose the fall. So when the purchaser bought it, the doctor’s statement counted as a misrepresentation even though it was true in January.
This part requires the statement to be more of fact than an opinion. That is, the injured party believed in the statement. For instance, in (Bissett v Wilkinson, 1927), the seller told the defendant that he thought the land would sustain 2,000 sheep. The defendant knew that no one had used the land before for sheep farming. When the statement turned to be untrue, the judge said that the seller’s statement was just an opinion but not a fact. So the claim failed.
This element requires that the innocent party to prove that it relied on the untrue statement to decide on the future of the contract (Mann, Roberts & Smith, 2012). If the innocent party knew that the statement was false, or failed to take precautions of a reasonable man given that position, that would not be a misrepresentation.
Elements of Misrepresentation
The court would require the innocent party to prove that if not for the misrepresentation, it would not have suffered the loss or the losses (Gergen, 2013). Notably, the objective approach would require a reasonable man given the same position to see that it is actually possible for the to result from such a misrepresentation.
The two torts are very common in business situations. For example, every business aims to sell their service or product. More than that, every business has a premise.
Product liability deals with the safety of products that each business provides. If any person gets hurt as a consequence of using a defective business product, that victim can sue for damages under the tort of negligence (Mann, Roberts & Smith, 2012). Also, the customer may sue the business through the customers’ protection act for a statutory breach of duty. For example, the case of (Donoghue v Stevenson, 1932) as discussed above. Similarly, stating that a product offers some benefits which would later turn to be untrue would become a misrepresentation, and damages would be awarded accordingly. However, there is a need to differentiate between a puffery a misrepresentation.
On the other hand, service business owes a duty of care to the customers whom they enter into contracts with. For example, in (Stennett v Hancock, 1939) The defendant was a garage operator. He negligently fixed the wheel on a lorry. When the driver used the lorry, the wheel came off and injured a pedestrian. The court found that the garage owner owed a duty of care both for the driver and the pedestrian. The liabilities shifted from the owner to the garage for a negligent service.
The law also governs the liability of occupiers for injuries acquired by other persons due to defective nature of the property. If occupiers breach their duty of care, the damaged victims can sue for compensation (Mann, Roberts & Smith, 2012). Notably, these people can either be visitors or customers, and they can also be non-visitors like trespassers (Mann, Roberts & Smith, 2012). The law takes each case differently, but it requires the occupier to exercise a standard of care. That is, a care in which reasonable people would have taken given the same circumstances. A scenario for this case is in (B v JJB Sports,2006). The claimant was a 10-year boy who slipped on a wet floor. The defendant was the owner of the premises and had just washed the floor. The court found that the defendant breached a statutory duty under the Occupiers’ Liability Act 1957.
Product Liability and Service Business
The duty of care owed by advisors, directors or when advising members of the public lies under professional negligence (Clarkson, Miller, Cross & Clarkson, 2015). For example, if someone claims to have some special skills or knowledge in something, that person owes a duty of care when advising the clients. For example, in (Chaudhry v Prabhaker, 1988) the claimant requested the defendant who claimed to have some knowledge about cars find her a secondhand car that had not been involved in accidents. The defendant found the car, but later the claimant realized that it had cases of accidents before. The judge found the defendant liable for damages of giving a wrong information that caused pure economic loss.
Like any other law, a defendant in the law of tort can also raise his defense. Notably, the defense does not waive the entire claim, only that it reduces the amount of compensation (Clarkson, Miller, Cross & Clarkson, 2015). Among other defenses, the defendant can raise special defenses are like an ‘act of a stranger.’ The defendant can state he never had control over the injured party as he was a trespasser. The other one is an act of God. These are natural forces than no man can prevent.
This one covers actions where the claimant took the risk despite being warned by the defendant, or the defendant did not use the safety measures installed by the defendant. For example, in (Sayers v Harlow UDC, 1958) the defendant was injured from falling off the door. The toilet locked itself while the claimant was inside. Rather than calling for help, the defendant climbed the door. The claim succeeded but she only received 75 percent.
Another defense for the tort of negligence is consent. Where a claimant gives consent, he cannot bring a claim for the injuries in case of an accident (Mann, Roberts & Smith, 2012). However, the defendant should have informed the claimant well before he/she takes voluntary risks.
If the claimant was injured in an illegal contract, the claim might fail when the defendant raises a claim over an illegal contract. In (Ashton v Turner, 1980), both claimants were burglars. While they were escaping, the claimant suffered harm due to defendants high speeding. The defense of illegality won, and the claim was dismissed.
Other types of torts in business are like the tort of conversion. This one is unlawfully changing other persons goods into one’s name for personal gain (Mann, Roberts & Smith, 2012). The tort of Fraud or deceit. In business, fraud are intentional torts of deceit and they occur through fraudulent misrepresentation. Another tort that may happen in business is the tort of trespass (Clarkson, Miller, Cross & Clarkson, 2015). This one can be trespass to goods, or property. It involves entering into someone’s’ property without that person authority or placing your goods in the claimant’s property without his/her authority.
While the state works to provides people with protection, it still does not force people to take it (Mann, Roberts & Smith, 2012). There is a need to note that the law allows people to the most part be the best judges of their interests. Therefore, the law recognizes that it cannot stop someone from trading off one’s freedom with a tortious invasion. After all, it is the people who know the benefit of the tortious invasion in which they are buying. On the other hand, the state still regulates to what extent the trading of the freedom can forego. In this way, the looks at the constraints the trading with the interests of the person or the society. With this, the conclusion is that tort law strikes a paradoxical balance weighing between the defendant’s interests, the plaintiff, and state responsibility.
References
Beatty, J., Samuelson, S., & Bredeson, D. (2013). Business law and the legal environment. Australia: South-Western Cengage Learning.
Clarkson, K., Miller, R., Cross, F., & Clarkson, K. (2015). Business law. Text and Cases (13th ed.). Cengage Learning.
Mann, R., Roberts, B., & Smith, L. (2012). Smith & Roberson’s business law (15th ed.). Mason, OH: South-Western Cengage Learning.
Varuhas, J. (2014). The Concept of ‘Vindication’ in the Law of Torts: Rights, Interests and Damages. Oxford Journal Of Legal Studies, 34(2), 253-293. https://dx.doi.org/10.1093/ojls/gqt036
Sohn, D. H. (2013). Negligence, genuine error, and litigation. International Journal of General Medicine, 6, 49–56. https://doi.org/10.2147/IJGM.S24256
Gergen, M. (2013). Negligent Misrepresentation as Contract. Califonia Law Review, 101(4). Retrieved from https://scholarship.law.berkeley.edu/californialawreview/vol101/iss4/2
Cases
Nettleship v Weston [1971] 3 WLR 370 Court of Appeal
Barnett v Chelsea & Kensington Hospital Management Committee [1968] 2 WLR 422
With v O’Flanagan [1936] Ch 575 Court of Appeal
Bisset v Wilkinson [1927] AC 177
Donoghue v Stevenson [1932] UKHL 100
Stennett v Hancock & Peters [1939] 2 All E.R. 578
JJB Sports v. Office of Fair Trading [2006] E.W.C.A. Civ 1318
Chaudhry v. Prabhakar [1988] All E.R.3 718
Sayers v. Harlow Urban District Council [1958] W.L.R.1 623
Ashton v. Turner [1980] Q.B.1 137
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