Tort of Negligence and Misrepresentation for Sale and Supply

Question: Discuss about theTort of Negligence and Misrepresentation for Sale and Supply. Answer: Introduction In the legal parlance, a negligent act or a presentation of an untrue statement calls for a wrong doing. Thereby the two references i.e. the tort of negligence and misrepresentation; both are legal wrongs in the eyes of law. The first one is construed to be wrong in the eyes of law which is said to be suffered by a person at the hands of another person who does not succeed to take adequate care so as to ensure avoidance of what a logical individual would consider it to be with regards as a foreseeable risk. In most of the situations wherein a tort of negligence is witnessed, there would be seen a contractual linkage between the parties involved such as that of a doctor and patient and employee, bank and customer. However until recently it was compulsory of existence of such a relationship to be there so as to claim for negligence to succeed. But with the advent of the civil law with regards negligence, there has been certain situations that crop up between two parties which may be ev en if there does not exist any contractual relationship for claiming the existence of negligent act (Owen, 2007). Thus the test required to be conducted to prove that a tort of negligence has occurred is that the loss should be a realistically anticipated outcome of the defendants manner wherein a close relationship should exist and the fact that a liability is being imposed should be fair enough. Secondly, misrepresentation is also a sort of tort or civil wrong which simply connotes that misrepresentation can lead to creation of a civil liability if the final result is a financial loss. Such as if a real estate agent owns a land which is uncultivable but advertises it as fit for cultivation then it is said to be misrepresentation of facts which may cause financial loss for the person who would buy or rent the property. But the fact that misrepresentation exists, the listener must act basis the facts stated by the real estate else it would not attract any kind of legal action. Further the person who is buying the property basis the facts represented should be sensible and justifiable as well leading to a financial loss to the buyer(Consumer Affairs Victoria, 2016). Thus it can be said that the former does not necessarily lead to a financial loss but the latter has to lead to a financial loss. Application Of Tort Of Negligence And Misrepresentation To A Business Situation Both these torts are evident in various business situations from time to time. For example in a retail outlet it is very important to take care of the non-occurrence of these two torts. First and foremost adequate care and maintenance is required to ensure that the retail stores do not lead to any such negligent act. The retail stores try to provide maximum safety to the shoppers but since the footfalls are so high there can be situations which may lead to occurrence of certain events. Most of the accidents happen due to carelessness. As per law the customers are invitees who may not spend money in the store but since they are there inside the store premises thereby they have the right to be protected in the eyes of law. A duty of care means that these stores should make all efforts each time to ensure that a decent level of care is being extended to the customers. The tort of negligence is said to have existed where situations such as existence of a hazardous situation led to injuri es, the retail was well aware of the hazards and also did not succeed to take care of the same (Calisi, 2015). The person who has suffered an injury was not responsible in any way for the same and the perilous situation was such that it was an unswerving and adjacent reason for the harm caused. Last but not the least; the injury should be real which lead to damages. Such as the case of Anns v Merton London Borough Council (1978) AC 728 a two stage test was used to ascertain if there was a enough affiliation of nearness base upon foreseeability and if there existed any causes for the negligence of the duty of care (Osborne, 2016). Further the safety of the services and goods supplied by the retailers are covered under the Misrepresentation Act which helps to protect the consumers from being cheated through any kind of fraudulent statements. In general misrepresentation can be taken care of by nullifying or cancelling the contract. In some situations, the plaintiff can claim for the damages as well. With regards the services and goods supplied, misrepresentation of the facts is said to occur if the goods supplied does not match with the descriptions given by the retailer or the services are not up to the mark as it was deemed to be or portrayed to be (Out-law.com, 2016). Thereby, in such situations it is very important for the retail shops to ensure that adequate measures are being taken from time to time to ensure that the tort of negligence and misrepresentation does not happen as it even hampers the goodwill of the store. Care should be taken while advising the visiting customers and even the various other members of the public. If the floor is slippery, then adequate sign boards should be mentioned, if the floor is wet or being cleaned then also a caution board mentioning the wet floor ahead information should be displayed. They should keep on checking from time to time that the expired goods are being removed from the stores since buying of expired products is due to the fact that the same is kept in the product line available for sale thus leading to misrepresentation and also tort of negligence to some extent. Buying of such products can cause harm to the health of the consumers of those products. Further selling of a product which guarantees an after sales service, wherein in actual scenario the same is unavailable, this leads to misrepresentation of facts as the customer would have bought the product thinking about the same. Losses can be suffered in various ways such as due to lack of adequate care or may also be because of stating statements which are misleading in nature. In both the situations, the business is to suffer various consequences if the client has suffered any kind of a loss. The business will have to suffer with regards its goodwill and reputation to such an extent that it may even loose some of its very dear clients as well which may have a financial implication on their business also. The consequences for the business in the situation where a client has suffered an injury and loss is that he or she can demand for compensation for the various losses which has occurred due to the said act. As in the case of BSKyB v EDS also the EDS had misrepresented facts due to which BSKyB had entered into a contract and hence EDS had to pay for the damages. But for claiming compensation the suffered party will have to prove that the cause of loss is inappropriate and fraudulent misrepresentation from t he other party from whom damages are being claimed (Barnes, 2010). The business however has various defences available too for against the claims made by the injured. Four negligence elements are available which may help a business safeguard itself against the negligence claim by the party who has suffered a loss. The possible ones are demanding the status of the plaintiff and the related duty of care, conforming that the business has performed its actions as per the standard of care, attacking the casual link between act or omission and harm or injury and probing as to what kind of loss has been suffered by the plaintiff and what is the contribution of the defendant in the loss suffered (Inc.com, 1999). There has been various instances wherein the business has been found to be liable for the tortuous act of it. As in the case of Byrne v Boadle (1863), Byrne was walking down the street when a barrel full of flour fell on him out from the window of Boadle. Thus it clear tat the defendant had not acted carefully as the flour barrel should not have been kept at a places from where it could fall and cause injury to an outsider. The flour shops tort of negligence caused injury to the plaintiff leaving the defendant in a loss situation wherein he had to compensate for the damage caused (Business Companion, 2017). Role Of Statutory Or Public Authorities In Protecting The Interests Of The People Residing In Australia The Australian law is derived from the English common law. The statutory law has made various changes since then and presently the parliaments of Australia has made various alterations with the Civil Liability Acts. As per the statute, various laws protecting the interest of the people have been pronounced. In Australia, intrude to the individual is reliant on the sincerity of the act intervening with the plaintiffs autonomy. As per the statute in Australia, the wrong doer does not necessarily have to have an intent behind such trespass. Secondly, if any action is direct but not intentional in nature, then in such a case the plaintiff in Australia can take an action basis tort of negligence. With regards negligence, the Australian common law has post 2002, laid down various criteria to determine whether a duty of care has been breached or not (Law Vision Pty. Ltd. 2008). Thus the main role of the statutory authority in protection of the interest of the people residing in Australia ir respective of being a citizen or not is that it ensures to prove whether a tort has occurred or not before deciding upon the case and both the parties are given equal chances to prove their respective points. Various Torts Applicable To The Actions Of A Business Apart From Tort Of Negligence And Misrepresentation While most of the torts are responsible for the loss or damage to the body of another person, business loss leads to damage being caused to the other businesses. The loss may be such as loss to various opportunities to the businesses, loss to relations and also goodwill. Apart from those already discussed, business torts also comprise of two more types i.e. wrongful intervention wherein a business purposely and incorrectly, intervenes with the lawful business desires of another business such as intervening into various contracts. The second one is unfair competition wherein the business tries to advertise its products in such a manner which would confuse the consumers as it would be very much similar to the competitors product. This is very similar to misrepresentation. Thus nowadays the business houses in lieu to beat the competition have started to take such fraudulent and unacceptable steps that it is becoming very difficult to survive (The Babcock Law Firm LLC, 2017). Application Of Tortious Principles As May Apply To The Business World The issue with the businesses today is lack of ethics. Globalisation and competition has led to the deterioration of the ethics within those who conduct businesses as well as professionals. As is understood from above, the business houses should be extra careful while conducting their businesses. They should not portray something that is incorrect just to make profits as it is short lived in nature which causes harm to the adjoining business, the competitors as well as the customers. Conducting business and competing with the competitors in a healthy manner is what the principle of tort states. It does not stop a business to try to move ahead of the competition but it definitely demands that the business should adopt a route which is healthy and not faulty in nature. The businesses should ensure that instead of paying compensations for the damages being caused due to the acts of tort undertaken by them should be minimised as much as possible. Principles of tort which apply to the businesses are the culture of compensation, protection of the human rights which includes the customers as well as employees and the general public also. Any kind of financial loss or an act which may cause risk to the lives of the people should be avoided (Elearn.uni-sofia.bg, 2011). The acts should not cause harm to the animals as well. Thereby these are some of the very stringent principles of tort which are compulsorily applicable in the business world. Conclusion Thus on a concluding note it is understood that the business houses are the ones who are most responsible for such negligence and misrepresentations only to satisfy their profit motives. Tort of negligence and misrepresentations cause the maximum loss to the plaintiff and thereby the business houses should ensure to exercise their duty of care perfectly and also not portray facts which are false and misleading in nature. The Australian law is stringent enough to take remedial actions against such acts irrespective of the business house being very a big name. 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