Business Torts and Civil Liability
Added on 2020-02-23
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Running head: NEGLIGENCE AND MISREPRESENTATION 0
Business law
Assignment
Business law
Assignment
NEGLIGENCE AND MISREPRESENTATION 1
Negligence and Misrepresentation in Business
Negligence means not providing adequate caution or attention to somebody or something
when it is ethically necessary for certain circumstances1. A person can file a civil suit against
the negligence of another person, which caused him damage or monetary harm2. The steps of
negligence include the duty of care, meaning the defendant must have a legal duty for care3.
The harm could be avoided by doing or not doing of some act by the defendant4. There must
be an assumption of risk meaning, obvious risk, injured must be aware of the risk and no
proactive measures were taken to avoid such risk5. A recent example is Stokes v House With
No Steps6 case, where the employee was injured due to the negligence of employer and the
court awarded $775,048 in damages.
Misrepresentation means while preparing a contract providing false information by one party
to another, which encourages them to enter the contract. Then due to such false fact, party
suffers a loss. The steps of misrepresentation require there must be a misrepresentation of
fact. That fact must be false and the person representing fact must know the truth. The
intention of representation was to encourage another party to enter a contract and the party
did rely on such fact. The party suffers harms due to relying on such fact7.
A business is required to maintain certain guidelines to avoid negligence suit. For example, a
retailer has a duty towards individual, customers and inspector who arrives at his store. Any
misplaces well which causes the person to trip can become the reason for a negligence suit.
Or if a mechanic gives his customers a vehicle which is not safe to drive and it causes an
accident, it is considered as negligence. It is the duty of retailer to maintain the proper safety
of peoples arriving at his store and the products they sold.
While entering into a contract a business can misrepresentation some facts. For example, if a
salesman knows that brakes are failed in a car but he tells his customers that the brakes are
fine. False advertisement by a retailer can be called misrepresentation, such as advertising
‘our cream make you fair in a week’ or ‘100% marks by reading our book’. The damages
1 Civil Liability Act 2002 (NSW)
2 Amanda P. Stickley. Australian Torts Law. (LexisNexis Butterworths, 2016).
3 Civil Liability Act 2002 (NSW) s 5B.
4 Civil Liability Act 2002 (NSW) s 5D.
5 Civil Liability Act 2002 (NSW) s 5F.
6 [2016] QSC 79
7 Marian Sawer. "Misogyny and misrepresentation: Women in Australian parliaments." Political Science 65.1
(2013): 105-117.
Negligence and Misrepresentation in Business
Negligence means not providing adequate caution or attention to somebody or something
when it is ethically necessary for certain circumstances1. A person can file a civil suit against
the negligence of another person, which caused him damage or monetary harm2. The steps of
negligence include the duty of care, meaning the defendant must have a legal duty for care3.
The harm could be avoided by doing or not doing of some act by the defendant4. There must
be an assumption of risk meaning, obvious risk, injured must be aware of the risk and no
proactive measures were taken to avoid such risk5. A recent example is Stokes v House With
No Steps6 case, where the employee was injured due to the negligence of employer and the
court awarded $775,048 in damages.
Misrepresentation means while preparing a contract providing false information by one party
to another, which encourages them to enter the contract. Then due to such false fact, party
suffers a loss. The steps of misrepresentation require there must be a misrepresentation of
fact. That fact must be false and the person representing fact must know the truth. The
intention of representation was to encourage another party to enter a contract and the party
did rely on such fact. The party suffers harms due to relying on such fact7.
A business is required to maintain certain guidelines to avoid negligence suit. For example, a
retailer has a duty towards individual, customers and inspector who arrives at his store. Any
misplaces well which causes the person to trip can become the reason for a negligence suit.
Or if a mechanic gives his customers a vehicle which is not safe to drive and it causes an
accident, it is considered as negligence. It is the duty of retailer to maintain the proper safety
of peoples arriving at his store and the products they sold.
While entering into a contract a business can misrepresentation some facts. For example, if a
salesman knows that brakes are failed in a car but he tells his customers that the brakes are
fine. False advertisement by a retailer can be called misrepresentation, such as advertising
‘our cream make you fair in a week’ or ‘100% marks by reading our book’. The damages
1 Civil Liability Act 2002 (NSW)
2 Amanda P. Stickley. Australian Torts Law. (LexisNexis Butterworths, 2016).
3 Civil Liability Act 2002 (NSW) s 5B.
4 Civil Liability Act 2002 (NSW) s 5D.
5 Civil Liability Act 2002 (NSW) s 5F.
6 [2016] QSC 79
7 Marian Sawer. "Misogyny and misrepresentation: Women in Australian parliaments." Political Science 65.1
(2013): 105-117.
NEGLIGENCE AND MISREPRESENTATION 2
incurred by customers due to such false advertisement can become the ground of
misrepresentation suit against a retailer.
While giving an advice to customers or a person, the advisor should understand his duty of
care. A sensible level of care should be maintained by advisor while giving an advice. An
advice can be oral or written8. The penalties of false advice are same in the case whether the
advice was written or oral. It is advisor’s duty to maintain care that the oral advice is
expressed properly, which is adequate for an individual to understand, considering the
changes in language and education. If the advisor failed to convey the right advice it will be
considered as negligence. In case of giving false advice to an individual with a motive to
encourage him to perform a certain task, is called misrepresentation. If an administrative
officer, who is expected to be an expert of the department, has given false advice to an
individual, it will be considered as misrepresentation. For example, it is negligence of lawyer
if he gives wrong information about the time limit of a case, which lost the person his right of
suit. Misrepresentation of good products by the seller when he actually sold bad products,
which cause injury to customers, can be intuited as a suit.
The consequences of a negligence or misrepresentation case depend upon several factors,
which are related to claim of breach of duty by business. The business can argue that there
was no duty to care in the first place, or that a reasonable individual would have proceeded in
the same manner. The burden of proof is on the claimant to prove the breach of duty by the
defendant. If claimant shows the control of defendant over the situation and high possibility
of damage happening than the burden of proof shifts to the defendant, to prove claimant
wrong. The consequence and amount of remedy depend upon the degree of damage or its
future consequences. If it is proved that a person has suffered injury due to negligence or
misrepresentation of a business than the court can award financial damages for recovery of
the injury of the claimant. Or the court can award punitive damages to penalise defendant for
his or her act of negligence or misrepresentation9.
There are several defenses available to the defendant in case of Negligence. Following are
few of the defenses:
8Martin Collingwood. "Professional negligence: An overview." Journal of Building Survey, Appraisal &
Valuation 1.4 (2012): 367-374.
9 Kerry King. "A lesser species of homicide–Manslaughter, negligent and dangerous driving causing death: the
prosecution of drivers in Western Australia, 1946-2011."
incurred by customers due to such false advertisement can become the ground of
misrepresentation suit against a retailer.
While giving an advice to customers or a person, the advisor should understand his duty of
care. A sensible level of care should be maintained by advisor while giving an advice. An
advice can be oral or written8. The penalties of false advice are same in the case whether the
advice was written or oral. It is advisor’s duty to maintain care that the oral advice is
expressed properly, which is adequate for an individual to understand, considering the
changes in language and education. If the advisor failed to convey the right advice it will be
considered as negligence. In case of giving false advice to an individual with a motive to
encourage him to perform a certain task, is called misrepresentation. If an administrative
officer, who is expected to be an expert of the department, has given false advice to an
individual, it will be considered as misrepresentation. For example, it is negligence of lawyer
if he gives wrong information about the time limit of a case, which lost the person his right of
suit. Misrepresentation of good products by the seller when he actually sold bad products,
which cause injury to customers, can be intuited as a suit.
The consequences of a negligence or misrepresentation case depend upon several factors,
which are related to claim of breach of duty by business. The business can argue that there
was no duty to care in the first place, or that a reasonable individual would have proceeded in
the same manner. The burden of proof is on the claimant to prove the breach of duty by the
defendant. If claimant shows the control of defendant over the situation and high possibility
of damage happening than the burden of proof shifts to the defendant, to prove claimant
wrong. The consequence and amount of remedy depend upon the degree of damage or its
future consequences. If it is proved that a person has suffered injury due to negligence or
misrepresentation of a business than the court can award financial damages for recovery of
the injury of the claimant. Or the court can award punitive damages to penalise defendant for
his or her act of negligence or misrepresentation9.
There are several defenses available to the defendant in case of Negligence. Following are
few of the defenses:
8Martin Collingwood. "Professional negligence: An overview." Journal of Building Survey, Appraisal &
Valuation 1.4 (2012): 367-374.
9 Kerry King. "A lesser species of homicide–Manslaughter, negligent and dangerous driving causing death: the
prosecution of drivers in Western Australia, 1946-2011."
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