Introduction The present task has undertaken an attempt to analyse the law of negligence especially when professional advice is furnished by the parties. The Task has tried to contrast the liabilities in tort and contract before understanding the law behind negligence. The major issue that is analysed after understanding the case scenario is whether Schneur can recover his losses from Patricia from providing wrong advice?
Relevant Law Liability in Negligence Tort and Contract – A brief contrast In Tort law, there are two important laws that prevail in United Kingdom, that is, law of contract and law of tort. The same are law of contract (a contract deals with when parties are in relationship by forming an agreement and abide by its terms) and the law of negligence (where the parties are in relationship under the duty of law). Both the laws are of civil nature but are very distinct. In the law of contract the parties are in contractual relationship which is not in tort law. Also, the liability in contract is strict and predetermined whereas in tort the liability is fault based and is not pre-determined by the parties. Thus, though both the laws are very important but are distinct . Read more -: Research On Law Assignment
The law of Negligence – Meaning and essentials
In tort law, one of the areas of law that is very important is the law of negligence by professionals by furnishing advice. Normally, a person is considered to be negligent when he does not cater his duty of care which is imposed upon him by law and because of such violation of duty of care loss is caused to Plaintiff. A plaintiff is considered to be a person who in proximate relationship with the defendant, that is, a person upon whom the effects of defendant will directly fall. Thus, in order to bring claim of negligent advice by professional, the main essential to prove are:
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Duty of care – Duty of care means that the defendant must undertake his actions in such a manner so that no loss is caused to any person because of his actions (Caparo Industries V Dickman (1990). That the professional is imposed with a duty of care to provide the advice in such manner so that no loss is caused by a person who is relying upon his advice. Due care and skill must be applied by a professional before any advice is furnished by him ( Bolam v Friern Hospital Management Committee (1957 & Midland Bank Trust Co. v Hett, Stubbs and Kemp (1979). The professional must be aware that the plaintiff is relying on is advice and thus is his neighbour and must adequate provide advice so as to mitigate any loss. The loss which may be imposed is reasonably foreseeable. In George Hawkins v Chrysler (U.K.) and Burne Associates (1986) it was submitted that the professional must provide as far as possible adequate advice especially in exceptional circumstances, that is, when he is aware that his advice will be relied upon(Morgan Crucible Co plc v Hill Samuel Bank Ltd (1991). (Powell 2016) Once duty of care is established, the next important elements are breach of duty of care.
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Breach of duty of care – The duty of care which is not performed as per the level of standard of care which is required then there is breach of duty of care. When the professional who is furnishing expert advice provides the advice but did not match the level of care and standard that is required while furnishing such advice, then the duty is considered to be violated. In Clack v Wrigleys Solicitors LLP (2013) the courts held that if the professional does not cater all due care and skill that is required in a given situation then such defendant or professional can be sued under the law of negligence and must pay compensation for the loss so suffered by the plaintiff (Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964). (Salter 2013)
After the breach of duty is also established against the defendant, then, lastly damages must also be suffered by the claimant.
Damage – Damages is the consequences that follow from the breach of duty of care. Once the duty of care is violated by the professional while furnishing advice, then loss must be caused to the plaintiff who is relying on the advice so furnished by the professional. The loss so caused must not be secluded and must be easily predictable by the professional while giving advice and the loss so caused to the plaintiff must be the direct result of the wrong advice so furnished by the professional. In Lennon v Commissioner of the Metropolis (2004), that when a claimant is relying on the expert knowledge of the professional and suffers losses because of such advice, then, damages are sustained by him because of professional negligence and the defendant has to compensate for the loss so suffered. (Pearson 2016) Damage in all scenarios must not be remote in order to cover under negligence ( Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961). When all the essentials of the law of negligence are proved, then the professional can be held liable for acting negligently and causing harm to the plaintiff.See more BUSINESS LAW
A defendant can protect himself from the consequences under the law of negligence provided the liability is excluded by the defendant under the shed of defences:
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One of such act is when specific exclusion clause is made while furnishing advice and the exclusion clause is brought within the knowledge of the plaintiff prior furnishing advice. (RPC 2016)
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When the plaintiff has suffered loss because of his own risk and is called defence of volenti non fit injuria and is held in ICI v Shatwell (1953).
When the plaintiff and defendant both have contributed to the loss of plaintiff then the liability of the defendant is reduced proportionality and the defence is called contributory negligence and is held in Lumsden v London Trustees Savings Bank (1971).
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Ex turpi causa exist when the plaintiff cannot seek remedy as he is himself involved in illegal actions. Now, the law is applied to the facts.
Application and conclusion Now, when the law is applied to the facts, Faisal provided the details of his accountant while applying for a rented flat from Schneur. Schneur then applied to the accountant (Patricia) to gain information regarding the financial position of Faisal. In such situation, Patricia was a professional and she is aware that Schneur is relying on her advice prior granting tenancy to Faisal. Thus, it is her duty to provide adequate care when furnishing any advice. On the contrary, Patricia did not comply with the standard of care that is required from her and she confuses Faisal with another client and does not bother to check the file properly. She replies to Schneur that Faisal is an excellent client with high income and capital and recommends him as a tenant. Rather, in reality, Faisal was continuously in overdraft and had been in serious debt with various banks on and off for several years. Thus, she did not perform with adequate duty of care and thus causes loss to Schneur. Thus, Patricia is negligent in her acts and is liable to compensate Schneur. However, Patricia while furnishing advice incorporated a clause, that is, ‘this firm will not accept any liability for inaccuracy contained in this reference or any loss incurred as a consequence’. The clause is applicable only when the same is brought within the knowledge Schneur while furnishing advice. Thus, Schneur can sue Patricia under the law of negligence; however, Patricia can exclude her liability if she can prove that the exclusion clause was within the knowledge of Schneur.
Task 4 Introduction Following statement is analysed in the present Task, ‘Provided the claimant establishes that he owed a duty of care, damages will be awarded for every loss suffered as a result of a negligent act’ The statement is critically evaluated.
Negligence Normally, under the law of negligence, whenever, a defendant is imposed with a duty of care which is not fulfilled by him and which causes loss to the claimant, then, such defendant is held to be liable under the law of negligence (Pearson 2016). Now, whether such claimant can sue the defendant for every loss that is suffered by him is the main question to be determined which is analysed with the help of relevant cases and references.
Kinds of Damages
Normally, if a defendant is held negligent, then, the various forms of damages that can be attained are:
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Special damages - Special damages means the damages which can be awarded to the claimant and which are calculated from the time when the defendant has indulged in a negligent act and extends to the time till the trial is proved by the court of law. These are the damages which may comprise of medical bills of the claimant (Lim Poh Choo v Camden and Islington Area Health Authority (1979), wages which are lost by the claimant because of the loss so suffered by him or the damage which are caused to his property because of the negligent actions of the defendant (Croke v Wiseman (1982). In British Transport Commission Gourley (1956) and Pickett British Rail Engineering Ltd (1980), the losses are considered as special damages which can be claimed by claimant. (BOL 2016)
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General Damages – The damages which cannot be calculated in monetary terms are called general damages. These are non- calculative because there is no receipt or invoice to support the same which is though available in special damages. Such damages include the suffering that is sustained by a claimant as a result out of pain or the suffering after the action of negligence by the defendant. In Wise v Kaye (1962) damages were awarded or pain and suffering, and are considered as general damages.
Nominal damages – Nominal Damages means the damages which are not be able to be calculate by the court. This is because the loss so suffered by the plaintiff is very minimal and thus the court is not able to calculate such damages. In such situation, nominal damages are awarded.
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Punitive damages – Punitive damages means when instead of compensating the plaintiff, punishment is inflicted on the defendant. These damages can be recovered by the plaintiff only when he can sue that the acts of the defendant are more than mere negligence and in such cases punitive damages can also be imposed on the defendant.
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Pure economic losses – These are the damages which arise out of the negligence of the defendant. Generally pure economic losses are no recoverable but the same can be recoverable wherein can be shown that the plaintiff and defendant are in special relationship and there exists a duty of care upon the defendant. In such situations pure economic losses can also be granted to the plaintiff. Thus, in Spartan Steel & Alloys Ltd v Martin & Co Ltd (1973) pure economic losses were also awarded in cases of negligence. (BOL 2016)
Thus, it is justified in submitted that in cases of negligence, the claimant seek to recover normally all kinds of losses that are suffered by him because of the negligent action of the defendant. The main advantages of grating such kinds of damages is that by granting damages the plaintiff is put back to the same position as if no loss is caused to him because of defendant. It acts as a deterrent effect on the defendant to carry out his actions in such manner so that no loss is caused to the plaintiff. Look at This -: SOURCES LAW JUDICIAL REASONING
Conclusion The present assignment thus covers significant areas of law, such as, the law of contracts, its meaning, its essentials, kinds of contracts, its impact, contractual terms, is meaning, impact and remedies, the law of negligence, its essentials, exclusion, etc. All the legal frameworks are very important and must be complied with in order to achieve the desired results.