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Application of Law - Assignment PDF

   

Added on  2021-05-31

9 Pages2475 Words88 Views
1ContentsSolution 1....................................................................................................................................................2Issue........................................................................................................................................................2Relevant Law...........................................................................................................................................2Application of law...................................................................................................................................4Conclusion...............................................................................................................................................5Solution 2....................................................................................................................................................5Issues.......................................................................................................................................................5Relevant Law...........................................................................................................................................6Application of law...................................................................................................................................7Conclusion...............................................................................................................................................7Bibliography................................................................................................................................................8

2Solution 1IssueWhether Alexia can sue the council for the losses that are sustained by her?Relevant LawThe law of Tort (Negligence) is applicable in the given situation.When any wrongful act/omission is carried out by the defendant which results in any civil actionagainst the wrongful party then it is a tortuous wrong. The law of negligence is part of the law of tort. In Donoghue v.Stevenson[1932] it was held byLord Atkin that when any act/omission is carried out by the defendant for which he is imposedwith the legal duty that no harm should be caused to the plaintiff, then, if any loss is caused tothe plaintiff because of such acts/omission, then, the defendant is held to be negligent in his acts.(Elliott & Quinn 2015)The law of negligence is also applicable when misstatements are made by the defendant. Anegligent misstatement is considered to be incurred when any inaccurate statement is made bythe defendant honestly but carelessly to the plaintiff wherein the defendant is possessed withskills and knowledge upon which the plaintiff is relying, then, any loss that is caused by theplaintiff resulting from such advice of the defendant will make the defendant liable for negligentmisstatements. (Hocking 1999)Thus, the main elements that are required to prove negligent mis-statement on the part of thedefendant are: (Bill 2010)i.Duty of care – Every defendant prior furnishing advice must make sure that theadvice furnished by him does not result in any harm to the plaintiff who is relyingupon his advice. The duty of care is imposed provided: (Latimer 2009)a.Proximity - that there must be proximity that exist mid the parties, that is, they aresharing a special relationship wherein the act of the defendant will hamper theplaintiff (Caparo v Dickman[1990]).

3b.Reasonable forseeability – there is reasonable forseeability on the part of thedefendant, that is, he can foresee that the acts/omission that he is undertakingmight cause harm to the plaintiff (X v Bedfordshire County Council[1995];In Cole V South Tweed Rugby League Football Club Ltd [2004], it was held that when Mrs Coleleft the club within the alcohol limit that is provided by the club, then, the duty of care that isimposed upon the club against his visitors are complied with and thus the duty is comply with.Mrs Cole and the club are in the relationship of proximity and the club can forsee the impact ofits actions. In Hackshaw V Shaw [1984], the court held that the use of firearm with the knowledge that thesame might incur injuries to the plaintiff is not in compliance of the duty of care that is imposedupon the defendant. The care that is used by the defendant is not adequate and thus the defendantwas held to be negligent in his actions .ii.Violation of duty – When the standard of care that is expected from the defendant tocomply with his duty of care is not met as per the level of a reasonable prudent manin the similar situations then there is violation of duty (Roads and Traffic Authority ofNSW v Refrigerated Roadways Pty Limited [2009]iii.Damages – It is necessary that some loss might have been caused to the plaintiffbecause the plaintiff has relied on the advice of the defendant. However, it isnecessary that:a.The loss that is caused to the plaintiff is because of the advice that is furnished bythe defendant. Thus, there must be presence of causation. b.That the loss that is incurred is not remote but is reasonably foreseeable by thedefendant. In Lindeman Ltd V Colvin [1946], the court held that the loss that iscaused to the plaintiff was a separate injury and is not caused because of thebreach on the part of the defendant. Once all the elements are comply with then the defendant is held to be negligent. But, to make adefendant liable for any negligent mis -statement there is requirement of the presence of specialrelationship amid the parties. To special relationship, the main requirements are: (Latimer 2009)

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