Negligence
Every country normally works on two kinds of laws, statutory laws and common law. Statutory laws are the laws which are framed by the government after passing the necessary enactments whereas common law is an English law which is based on the principles of precedents and customs and are followed by the countries because they are present from time immemorial.
One of the significant laws that come within the arena of common law is the law of tort. The law of tort is not enacted in any statue but is followed by the countries by relying on the precedents. Tort law is not a single law but is a bunch of several laws, such as, law of defamation, misrepresentation, negligence; trespass, etc. Whatever may be the kind of law but the basic element that is present in every tort law is that it compensates the plaintiff against the wring committed by the defendant.
In the given paper, two of the major branches of tort law are evaluated. The same are Misrepresentation and the negligence law. Real life situations are analyzed in order to evaluate the given laws. The laws are critically evaluated by understating their meaning, elements, nature, scope, conditions of breaches, effects, defenses, role and scope of authorities against the laws, etc.
Basic Elements
In the leading case of Donoghue v Stevenson (1932), Lord Atkin held that every manufacturer owns a duty of care towards his consumers and must compensate for the losses that are suffered by him because of the wrongful acts of the manufacturer. Considering the approach that is taken by Lord Atkin, there are three element which are required to prove the defendant negligent, that is, the duty of care on the part of the defendant; the violation of such duty of care by the defendant and the damage that is caused to the plaintiff because of such breach of duty of care. (Horsey & Rackley, 2017)
This legal principle is also applicable when the defendant is a retailers and the plaintiff visits his premises. If the retailer does not comply with these basic elements of the negligence the he must make good the loss suffered by the customer and is held in Andrews v Hopkinson (1957). (Horsey & Rackley, 2017)
Thus, to prove negligence the main elements are: (Latimer, 2012)
1. Duty of care– Every retailer of the premises is duty bound to provide safe ambiance to his visitors. But, is the retailer duty bound against every visitor. It is held in Seeds Pty Ltd v QBEMM Pty Limited[2010] that the definition of visitor includes both invited and non-invited visitors provided the visitors are reasonably foreseeable. In Wyong S.C. v Shirt (1980) it was held that every retailer is answerable only against such visitors who are reasonable foreseeable.
Basic Elements
2. Breach of Duty– Once it is proved that the retailer is duty bound to provide safe premises then such duty is considered to be violated when the level of care and safeguards that is expected is not comply with by him. whether the duty is violated or not is analyzed after analyzing various factors, such as, gravity of the harm, risk involve, gravity of the aftereffects, age of the visitor, etc. In Australian Safeway Stores v Zaluzna (Zaluzna)(1987), the retailer was held to be not met the standard of care because the visitors suffers injuries because of the wet floor. It was held that it is the duty of the retailer to keep the floor dry and clean and by not complying with this level of care the standard is not met resulting in breach of duty of care.
3. Damages suffered– The customer is considered to be suffering injuries because of the breach of the duty on the part of the retailer. Only when the injury so incurred is because of the acts or omissions of the retailer and the damage so inflicted upon the visitor is reasonably anticipated by the retailer. In Overseas Tankships (UK) v Miller SS Co[1967], the company was not held to be negligent for the loss caused to the ship mainly because the loss so caused to too remote to anticipate.
Thus, these are the three elements that must be proved in order to hold any retailer liable for the losses that are caused to the customer under the law of negligence.
It is now important to understand what action can be taken by the aggrieved visitor against the retailer.
When any loss is caused to the customer or visitor because of the negligent action of the retailer, then, the customer or the visitor may bring a civil action against the retailed for the recovery of loss that is caused to him. The Magistrate Court is the court that deals with the matters of negligence and brings justice to the aggrieved party. (Hobart, 2017)
When it is proved that the retailer is negligent in his actions, then, there are numerous consequences that can be faced by such retailer. Some of the consequences that can be faced by the retailer are submitted herein below:
The aggrieved party after establishing that the retailer has been negligent in his actions may seek several kinds of damages and compensation from the negligent retailer. Thus, the consequences are: (Goldring et al, 1998)
Action Against The Act Of Negligence
1. Damages – The retailer is answerable to all kinds of damages that are suffered by the plaintiff. That may include all kinds of general damages, that is, the damages for suffering, pain, etc. Also, the retailer is also answerable for all kinds of special damages that are suffered, that is, out of pocket damages.
2. Compensation – Many a times the retailer apart from the damages that are suffered by the plaintiff are also required to compensate the plaintiff additionally to make good the loss that is suffered by the plaintiff and to bring him to the position so that no loss was ever incurred to him.
But, are there are chances that the retailer/defendant can protect himself from the liability that is incurred to be him because of his negligent action. The answer is yes. There are few situations wherein the defendant can protect him.
There are three defenses that can be normally availing by a defendant in order to protect his position. The same are: (Arvind & Steele, 2012)
1. When the defendant can prove that the loss that is caused to the plaintiff is assumed by him voluntary and because of his own free will. This happens when the plaintiff is aware of the danger but still continues to take the risk, in such situation, the defendant is not liable for the losses that is suffered by the plaintiff;
2. When both the defendant and plaintiff have contributed to the loss of the plaintiff by acting in a wrongful manner. In such case, the liability of the defendant is reduced proportionately to the wrong that is committed by the plaintiff.
Thus, these are the main element that must be kept in mind by the retailer in order to avoid any kind of liability under the law of negligence.
Basic Elements
When any relationship is established amid the parties, contractual or non-contractual, then there are various statements that are made amid the parties that are at times become part of the contract. When one party in order to persuade the other party knowingly makes false statement so that a contract is established amid them and the other party actually have relied upon such false statements, then, it is an act of misrepresentation on the part of the first party. Any loss suffered by the relying party must be compensated by the first party. (The Law HandBook, 2017)
Effects Of Negligence Upon The Retailer
Every customer has to prove certain factors against the retailer in order to prove misrepresentation on his part. The same are:
- That the retailer has made a statements of fact to the customer;
- That such statement of fact is false and the said fact is within the knowledge of the retailer (Smith v Land & House Property Corp(1884)
- The false statement is intentionally made by the retailer in order to persuade the customer so as to make a contract with him;
- The customer had actually relied upon the statements of facts that are made by the retailer prior establishing any contractual relationship with the retailer Beach Petroleum NL v Johnson(1993);
- That the customer is acting in good faith and with honest intention.
- Many a times the statements regarding law, opinion and future intention also falls within the category of statements of facts under the law of misrepresentation;
When any supplier is supplying goods/services to his consumers then any misrepresentation on the part of the supplier will make him accountable for the losses that are suffered by the customer. The concept of misrepresentation is very important not only when the parties are in relationship of a retailer or customer, but, the concept is also applicable amid the parties who are the advisor-relying party.
In Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964), there are three parties involved. One of the leading banks, Bank 1, prior granting the loan needs the correct position of his financial status. In order to do so, Bank 1 ask the advice of another bank, Bank 2, wherein the client already has an account, Bank 2 has provided a report on the financial status of the client knowing the fact that the firs bank is relying on the report before establishing any relationship with the client. This statement of fact was in fact false and is in the knowledge of the second bank. The second bank is also aware that the first bank is relying on his report. Thus, a misrepresentation is incurred to the first bank.
When all the factors of the concept of misrepresentation are proved against a party then the aggrieved party can sue the defaulter for deceptive and misleading action and can file a civil suit against him. When the suit is decided in favor of the aggrieved party then there are various outcomes that are faced by the defaulting party.
he Competition and Consumer Act 2010 lay down consequences that can be faced by the person who has made the misrepresentation
- A fine of $ 220, 000 – in case of individual;
- A fine of $ 1100, 000- in case of corporation.
In Esso Petroleum v Mardon [1976], Mardon is the plaintiff who has relied upon the statements that are made by the representatives if Esso. The representative persuaded Mardon to enter into a tenancy agreement with them by negatively stating the facts of the price of the petrol. Damages are suffered by Mardon. It was held by the court that in commercial transactions communication of false statements in order to seek contractual relationship is an ac of misrepresentation and thus the aggrieved party must be compensated. (The Law Teacher, 2017)
When the aggrieved party is able to prove misrepresentation then such wrongdoers must face the consequences. However, there are few safeguards that can be avail by him:
- That the wrongdoer is 100% sure that the statements that he is making are true to the best of his knowledge;
- That the statements that are made to the aggrieved and the aggrieved already knew that the wrongdoer is making wrong statements;
- That when the contract is made then the basis of such contracts are not the wrongful statements that are made by the retailer.
But, the duty to avoid negligence act or the act of misrepresentation is not limited to private parties but the role is extended to public authorities.
The scope of public authorities to avoid negligence or misrepresentation can be analyses with the help of Whittington v Seale-Hayne (1900) wherein remedy for misrepresentation and negligence is imposed mainly because the duty that is imposed was not furnished resulting in damages to the plaintiff.
Conclusion
It is thus concluded that both the law of negligence and misrepresentation are very important law in torts and it cast a duty of care on every person who is trying to communicate with any consumer, customer, visitor, etc, so that no act of their either physically or orally results in causing any kind of damage. Also, it is rightful in submitting the scope of the avoidance of misrepresentation or the act of negligence is not limited to any one particular person but every authority, public or private, in under the scanner to act in such manner so that no hardship is caused to the plaintiff.
Thus, the actiosn that are taken by any defendant must be utmost care so that no kind of conseuqnces can be faced if because of such action some harm is caused to the plaintiff..
Reference List
Books/Articles/Journals
Arvind & Steele (2012) Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change, Bloomsbury Publishing
Goldring et al, (1998) Consumer Protection Law. Federation Press.
Horsey & Rackley (2017). Kidner’s Casebook on Torts. Oxford University Press.
Latimer P (2012) Australian Business Law, CCH Australia Limited.
Case laws
Australian Safeway Stores v Zaluzna (Zaluzna) (1987);
Andrews v Hopkinson (1957);
Beach Petroleum NL v Johnson(1993) ;
Donoghue v Stevenson (1932);
Esso Petroleum v Mardon [1976];
Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964);
Overseas Tankships (UK) v Miller SS Co [1967];
Seeds Pty Ltd v QBEMM Pty Limited [2010];
Smith v Land & House Property Corp(1884);
Wyong S.C. v Shirt (1980);
Whittington v Seale-Hayne (1900)
Online Material
Hobart (2017) Negligence and the Duty of Care (Online). Available at:
https://www.hobartlegal.org.au/tasmanian-law-handbook/accidents-and-insurance/negligence/negligence-and-duty-care. Accessed on 14th September 2017;
The Law HandBook (2017) Misrepresentation (Online). Available at:
https://www.lawhandbook.sa.gov.au/ch10s02s10.php. Accessed on 14th September 2017;
The Law Teacher (2017) (Online). Available at:
https://www.lawteacher.net/cases/misrepresentation-cases.php. Accessed on 14th September 2017
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