Negligent Misstatement Assignment Help

Negligent Misstatement Assignment Help

Introduction

A Negligent Misstatement Assignment Help can be defined as a statement made by a party which is made carelessly and misleads the claimant causing him damage and losses. Conventionally it was needed that the claimant has to show that a pre-existing form of contract is present between the claimant and defender. The negligence misstatement can be dealt in two ways as per the law one is known as tort of slander and another one is known as tort of deceit. The tort of slander is considered when a defender made a false statement or mis represented the facts which he doubted as not true and caused a loss of goodwill and caused ill name to the defiant (Bagshaw et. al., 2008).

Negligent Misstatement Assignment Help

Negligent misstatement differentiated

The tort of deceit is covering those situations when a defendant makes a statement knowingly that his statement is false and dishonest and it can cause a monetary loss to the claimant. The example of a tort of deceit can be taken as a case when a old car salesman claims to the buyer about the well working condition of a car while he knows that the engine is not working correctly and would need a overhauling in a few months. Tort of deceit was fully defined in too legendry cases one is Derry v Peek (1888), Donoghue v Stevenson (1932) in the Donoghue v/s Stevenson case the house of the lord made a ruling that everyone has a duty to take care that their actions do not cause harm to anyone at all where it is reasonably foreseeable that the harm might result (Kidner R., 1987).

The development of liability for negligent misstatement

  • A pure economic loss can be explained as a loss suffered by the party which are present only in macro economic form and can be understood as a loss which is visible in monetary terms and not as a physical loss or damage to any physical property. The case of (Clayton v Woodman (1962) was landmark in developing a liability development for negligent misstatement. Similarly the case of (Hedley Byrne v Heller & Partners (1963) is agreed as the case which initiated the development of tort of negligible misstatement which covered the loss of not only pure economic forms but also the damage of property and other damages. In this case the court has made the architect liable for instructing the brick layer wrongly on how to lay bricks for a wall which collapsed and injured a person.
  • Duty of Care in making statements is the area in which the court has to determine if any legal duty was involved with the defiant party to take care of a responsibility. This includes various problem areas like oral or written agreements made between the defiant and claimant or inactions or omission in the part of duties. The court is eligible to make the duty of care statements in case of following type of losses. The first is pure economic loss’ a psychological damage or a nervous shock’ pre natal injuries to an unborn child or an unplanned child.

Special Relationship

  • A duty of care exists when any activity which is done by an individual or a group which can cause a possible harm to other peoples. A prior relationship is considered in case when a person or a group is performing an activity and they informed the associated parties about the possible damages or harm it can cause. A special relationship can be explained by the example of a doctor and a patient who have a special relationship which is agreed and understood. The doctor’s activities can occasionally cause harm to the patient. In this case a special relationship factor comes into picture while deciding the duty of care and The necessary characters of the Relation (Roxburgh’1969).
Persons to whom duty is owed
  • As per the common business law the person to whom the duty is owed can be in a special relationship with the defiant or it can also be outside the special relationship where the common law of duty of care comes into force. Special relationship can also be explained in between an employee and an employer or between two road users who don’t know each other but since they are using the same roads a duty of care lies with both of them. The famous Caparo Plc v Dickman [1990] 1 ALL ER 568 is the leading law of tort in UK courts. In this case the house of the lord came up with a test known as the three fold test to determine the duty of care in negligence cases. This test states that a potential harm should be foreseeable by the defendant within the boundaries of reasonableness’ the parties which are involved must have a relationship of proximity and there should be sufficient justification and reasonableness while determining the duty of care on anybody (Cane, P.1996).
Proximity Test
  • The proximity test or the neighbour principal was formed after the Lord Atkin’s speech which was delivered in case of Donoghue v Stevenson, in 1932. Where he described who can defined in the law as a neighbour and neighbour principle binds the duty on every individual that they must take reasonable care in doing their activities so that no harm caused to the people who are in proximity of that person as discussed in the case of Harold Wildgust and Carrickowen Ltd –v- Bank of Ireland and Norwich Union Life Insurance Society [2006] 2 ILRM 28 (Hill, J. 1986).
When Liability incurs for certain Professionals
  • Reasonable foresight was described in case of Caparo Industries Plc v Dickman judgement where the judges has overruled the ANNS test to describe the duty of the care and formed a new ruling where foresight of the harm is also taken into consideration along with the justifiability and reasonableness of the claim and a sufficient amount of proximity level or a special relationship arrangement is to be present between the defendant and claimant.
  • Professional negligence is another section of the tort law of English court where judgement is to make regarding the duty of the care giver and what are the circumstances under which the responsibility of care giving is taken by a professional care giver. The special relationship arrangement and the contractual terms and conditions are to be considered as well. The famous case for this type of conflicts is White v Jones [1995] 1 All Er 691) in which the assumption are decided about the responsibility of the professional lawyers towards their client. In this case the lawupheld the claim of two daughters who sued their father’s lawyer who did not performed his duty to change the will as requested by their father which resulted in loss of financial nature to the daughters as they failed to prove that they were a part of his last will. The question was raised regarding the fact that on what grounds the lawyer can be sued. Lord Goff of the House of Lords ruled that the lawyer was not able to perform his duties sufficiently as he was expected to perform. The lawyer was paid by the father who was his client to make the changes in the will. There existed a special relationship between the client and lawyer and it was foreseeable harm that if wills are not changed in time it could possible lead to a huge financial losses and damages to the other person (Tettenborn A.M. et.al., 2003).
  • Professional negligence in terms of medical practice is also examined and ruled in a judgement by the court. The court observed that it is not easy in a case of medical negligence to determine the duty of care and responsibility as the court has to consider the underlying condition of the patient and its gravity before deciding upon the righteousness of the decision taken and also rely on the other medical expert’s opinion on the actual status of the patient. Medical evaluation is slightly subjective in nature and each expert can differ from other expert while providing an opinion for similar patient. It is difficult for court to also asses the severity of damage caused to the patient as the court has to assume the damage caused to the patient because of medical negligence with a hypothetical patient with similar condition and compare their status. This procedure can mislead the court from the actual facts thus causing unreasonable judgement and responsibility determinations like in a case Hucks v Cole reported in (1993) 4 Med. L.R. 393, a doctor was not able to diagnose the condition and failed to provide the treatment to the patient who was diseases by septic on his skin which is a dermatological condition and can be treated by an antibiotic called penicillin. The doctor was aware that the septic could lead to a complicated medical situation called puerperal fever. The duty of care lies with the doctor and court observed that the doctor’s treatment protocol was not in accordance with the standard procedure thus making him a case of negligence in the duty of care. The court examined and observed that whenever a gap exists between the standard procedure as determined by the professional body of the doctor and actual treatment the court has every right to ask for justification to the doctor regarding the risk taken and if he fails to provide a satisfactory answer then he will be treated with a charge of negligence in the duty (Powell, John; Stewart, Roger & Jackson, Rupert M. 2002).
 The Occurrence of Exemptions
  • The occurrence of exemption or the exclusion clause is added into the contracts when the parties involved with the activity wants to limit their responsibility. For this reason special clauses are added into the agreement made between the parties. The courts has observed that the problem associate between the business and consumer contracts law where consumers are not aware of the limited liability of business. The law which was reformed to distinguish the contract between business and business and business and consumers is the unfair contract terms act 1977 which was amended in year 1999 so that consumer’s rights are upheld. The case of Hedley byrne v/s Heller is widely publicized for limited liability as the defendant was able to walk away free because of the disclaimer it has published. This has lead to changes in the unfair terms in consumer contract regulations in year 1999 which ensures that even after the disclaimer the business are responsible party for their duties towards consumers (Steele, J., 2007).
  • As it is clearly mentioned in Section 3 (1) in connection with 3 (2) (a) of the UCTA which prevents a person from excluding or restricting his liability for negligence “by reference to any contract term or to a notice”, unless the term or notice “satisfies the requirement of reasonableness” and Schedule 2 to the 1977 Act sets out “guidelines” to which regard must be paid where the reasonableness test is applied to certain contracts.
  • In case of Armitage v. Nurse [1998] which is a leading case in English court of law the rule of exemption was again questioned for its validity as the trustees exempted themselves from any liability or duty of care except for fraud. This exemption ensured that they are free from any kind of responsibility if things go wrong. The judge has made following ruling in this case which were named as irreducible duties of the trustee for any trust formed without any or with any exemption clause. This includes a duty to inquire into the extent and nature the property and the trusts’ a duty to obey directions in the settlement unless the deviation is sanctioned by the court’ a duty to account for his stewardship of the assets under his control and a duty to carry on the business of the trust with the degree of prudence to be expected of a hypothetically reasonably prudent man of business

Conclusion

  • It is very important to determine the liability in terms of tort as well as contract law. The duty of care can be determined and person who is responsible for the negligence of duty can only be identified if the liability is decided. This part is especially important for professional care givers’ trust funds and their trustees’ medical negligence etc. The contract laws are also formed to ensure that each party fulfil its obligations satisfactorily and the responsibility is properly distinguished for them the liability clause will ensure that which person is answerable in the court and who will compensate for the damages.
  • Exclusion of liability is important to keep in the contracts as there are certain activities which can have a potential threat towards the other parties but they are done without most care for the greater good or overall benefit of the party. It can analogue to a medical procedure which have its risk involved but it is done with intention of betterment of the patient. The problem associated with the exclusion of liability clause is the undue benefit taken by the business organization from the consumers by publishing a declaration or excluding themselves from the liability by forming an agreement (Deakin, Simon; Johnston, Angus; basil and Markesinis, 2007)

References

  • Bagshaw, Roderick; McBride, Nicholas (2008) Tort Law Longman. ISBN 1405859490
  • Deakin, Simon; Johnston, Angus; Markesinis, Basil (2007) Markesinis and Deakin's Tort Law Oxford University Press ISBN 0199282463
  • Kidner, Richard (1987) "Restiling from the Anns principle: the variable nature of proximity in negligence" Legal Studies (Blackwell Publishing) 7 (3)
  • Tettenborn, A.M.; Asif, Jalil; Plunkett, Christopher; Goodman, Andrew & Wilby, David (2003) Professional Negligence and Liability Reports London: Sweet & Maxwell. ISBN 0-421-83960-0
  • Powell, John; Stewart, Roger & Jackson, Rupert M. (2002) Jackson and Powell on Professional Negligence (Common Law Library) London: Sweet & Maxwell. ISBN 0-421-79220-5
  • Steele, Jenny (2007). Tort Law: Text, Cases, & Materials: Text, Cases, and Materials (Paperback). Oxford University Press ISBN 0199248850