Negligence and Defenses in Tort Law

The concept of care in tort law is essential as it highlights the responsibility owed by individuals, professionals, and businesses to avoid causing harm or damage to others. The duty of care is not limited to professional relationships, but also extends to situations where special skills or knowledge are involved. Defenses such as contributory negligence, consent, illegality, and act of a stranger can be raised by the defendant to reduce the amount of compensation. Tort law strikes a balance between individual interests, societal responsibility, and state regulation.

Running head: BUSINESS LAW 1
Law of Tort
Author Name(s)
Institution
Author Note

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Abstract
In law, a tort is a civil offense where the court awards compensation as a remedy for the wronged
person. According to the Law of Torts, people owe others duties in different ways. For example,
all drivers have a duty of care to the rest of the road users. Similarly, the occupier of a particular
property owes a duty of care to all persons who visit the premises. This writing will be an
examination of the different from obligations that the law implies to people through the law of
tort.
Keywords: Law of Tort, Negligence, Compensation, Misrepresentation

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Law of Tort
The occupier of properties or people dealing with the public cannot escape the liabilities
when they breach their duties. The work of the law of tort is to govern all these wrongs and their
liabilities. In particular, This paper will focus on the scope of the tort of negligence and the tort
of misrepresentation.
Tort of Negligence and Misrepresentation
Torts of negligence are situations where people's reckless actions progress to the harm of
others (Beatty, Samuelson & Bredeson, 2013). A misrepresentation happens when one party’s
actions make the other party believe that the conditions are true whereas it is untrue in a real
sense (Beatty, Samuelson & Bredeson, 2013). Sometimes the issue of misrepresentation overlaps
between contract law and the law of tort. In contract law, (Clarkson, Miller, Cross & Clarkson,
2015) states that the innocent party has a remedy of rescission whereas, in tort law, an injured
party can obtain damages including punitive damages which are not available in the law of
contract.
Components of Tort of Negligence
The court demands a claim for negligence to establish some elements. These are the duty
of care, violation of that duty, reasonable and foreseeable prove that damages resulted from the
breach of the defendant's duty of care (Mann, Roberts & Smith, 2012).
First Element of Negligence: Duty to Care
The fundamental principle behind the duty of care is that while people enjoy their rights,
they should ensure that they protect the right of others (Mann, Roberts & Smith, 2012). The
concept of duty to care dates back to the landmark case of (Donoghue v Stevenson, 1932). The
case developed what came to be known as the 'neighbor principle.'

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The claimant consumed beer in a café after which a decomposed snail appeared from the
bottle. As a result, the claimant claimed damages amounting to £500 from the defendant who
was the beer manufacturer. The judge held that every person owes a duty of care to others, and
should protect them from any reasonably foreseeable danger.
Second Element of Negligence: Breach of Duty to Care
The claimant should show that no reasonable man would have failed to do what the
defendant neglected to do (Varuhas, 2014). The defendant must act with the care in which a
reasonable person in his capacity would have acted. For instance, in (Nettleship v Weston, 1971),
the defendant was a driver learner, on a third lesson learning from the claimant, the defendant hit
the post injuring the claimant. The court found that a duty of care existed from the learner and he
was liable even though he was an unskilled driver. Simply put, no reasonable third lesson-driver,
a student would have acted in that manner.
The third element of Negligence: The Claimant's Loss or Damage Resulted from the
Defendant’s Breach of Duty
Firstly, the claimant must show that the defendant neglects caused the losses or damages.
The court usually assesses this factual matter through the ‘but for’ test (Varuhas, 2014).
Secondly, the claimed loss or damages must be reasonable and foreseeable (Sohn, D. H., 2013).
Simply put, they should not be too remote. A scenario for this situation is (Barnett v Chelsea &
Kensington Hospital Management Committee, 1969) The husband died after being sent home
without examination. The court found that even though the hospital neglected to examine the
patient, with the examination or without it, he would have died out of the arsenic poisoning.
Therefore, lack of examination was not the cause of death.

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Tort of Misrepresentation
In (Beatty, Samuelson & Bredeson, 2013), a misrepresentation is an untrue statement that
causes the other party to enter into a transaction or a contract. The elements of misrepresentation
are; a false statement, it must be material fact, induction and innocent party’s reliance, and the
damages foreseeably resulted from the misrepresentation (Clarkson, Miller, Cross & Clarkson,
2015).
First element of misrepresentation: Statement of Material Fact
For every misrepresentation, the guilty party must make a statement either orally, in
writing, or in conduct (Gergen, 2013). This statement must then be false, it does not matter
whether the statement was true at the time of negotiation, and then facts changed later. If facts
change, the party should inform the other. Otherwise, it remains a misrepresentation. In (With v
O'Flanagan, 1936), the doctor trading with the medical practice said the income was £2,000 per
year in January. The income fell in May, but he did not disclose the fall. So when the purchaser
bought it, the doctor's statement counted as a misrepresentation even though it was true in
January.
Second element of misrepresentation: Statement of Material Fact
This part requires the statement to be more of fact than an opinion. That is, the injured
party believed in the statement. For instance, in (Bissett v Wilkinson, 1927), the seller told the
defendant that he thought the land would sustain 2,000 sheep. The defendant knew that no one
had used the land before for sheep farming. When the statement turned to be untrue, the judge
said that the seller’s statement was just an opinion but not a fact. So the claim failed.

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Third element of misrepresentation: Statement Induced the other party
This element requires that the innocent party to prove that it relied on the untrue
statement to decide on the future of the contract (Mann, Roberts & Smith, 2012). If the innocent
party knew that the statement was false, or failed to take precautions of a reasonable man given
that position, that would not be a misrepresentation.
Fourth element of misrepresentation: Foreseeable damages
The court would require the innocent party to prove that if not for the misrepresentation,
it would not have suffered the loss or the losses (Gergen, 2013). Notably, the objective approach
would require a reasonable man given the same position to see that it is actually possible for the
to result from such a misrepresentation.
Tort of Negligence and Misrepresentation in Business Situations.
The two torts are very common in business situations. For example, every business aims
to sell their service or product. More than that, every business has a premise.
Product and service liabilities
Product liability deals with the safety of products that each business provides. If any
person gets hurt as a consequence of using a defective business product, that victim can sue for
damages under the tort of negligence (Mann, Roberts & Smith, 2012). Also, the customer may
sue the business through the customers’ protection act for a statutory breach of duty. For
example, the case of (Donoghue v Stevenson, 1932) as discussed above. Similarly, stating that a
product offers some benefits which would later turn to be untrue would become a
misrepresentation, and damages would be awarded accordingly. However, there is a need to
differentiate between a puffery a misrepresentation.

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On the other hand, service business owes a duty of care to the customers whom they enter
into contracts with. For example, in (Stennett v Hancock, 1939) The defendant was a garage
operator. He negligently fixed the wheel on a lorry. When the driver used the lorry, the wheel
came off and injured a pedestrian. The court found that the garage owner owed a duty of care
both for the driver and the pedestrian. The liabilities shifted from the owner to the garage for a
negligent service.
Occupiers’ Premise Liability
The law also governs the liability of occupiers for injuries acquired by other persons due
to defective nature of the property. If occupiers breach their duty of care, the damaged victims
can sue for compensation (Mann, Roberts & Smith, 2012). Notably, these people can either be
visitors or customers, and they can also be non-visitors like trespassers (Mann, Roberts & Smith,
2012). The law takes each case differently, but it requires the occupier to exercise a standard of
care. That is, a care in which reasonable people would have taken given the same circumstances.
A scenario for this case is in (B v JJB Sports,2006). The claimant was a 10-year boy who slipped
on a wet floor. The defendant was the owner of the premises and had just washed the floor. The
court found that the defendant breached a statutory duty under the Occupiers’ Liability Act 1957.
Care when giving advice
The duty of care owed by advisors, directors or when advising members of the public lies
under professional negligence (Clarkson, Miller, Cross & Clarkson, 2015). For example, if
someone claims to have some special skills or knowledge in something, that person owes a duty
of care when advising the clients. For example, in (Chaudhry v Prabhaker, 1988) the claimant
requested the defendant who claimed to have some knowledge about cars find her a secondhand
car that had not been involved in accidents. The defendant found the car, but later the claimant

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realized that it had cases of accidents before. The judge found the defendant liable for damages
of giving a wrong information that caused pure economic loss.
Defense to Negligence
Like any other law, a defendant in the law of tort can also raise his defense. Notably, the
defense does not waive the entire claim, only that it reduces the amount of compensation
(Clarkson, Miller, Cross & Clarkson, 2015). Among other defenses, the defendant can raise
special defenses are like an ‘act of a stranger.’ The defendant can state he never had control over
the injured party as he was a trespasser. The other one is an act of God. These are natural forces
than no man can prevent.
Defense of contributory negligence
This one covers actions where the claimant took the risk despite being warned by the
defendant, or the defendant did not use the safety measures installed by the defendant. For
example, in (Sayers v Harlow UDC, 1958) the defendant was injured from falling off the door.
The toilet locked itself while the claimant was inside. Rather than calling for help, the defendant
climbed the door. The claim succeeded but she only received 75 percent.
Consent or volenti non fit injuria
Another defense for the tort of negligence is consent. Where a claimant gives consent, he
cannot bring a claim for the injuries in case of an accident (Mann, Roberts & Smith, 2012).
However, the defendant should have informed the claimant well before he/she takes voluntary
risks.
Illegality
If the claimant was injured in an illegal contract, the claim might fail when the defendant
raises a claim over an illegal contract. In (Ashton v Turner, 1980), both claimants were burglars.

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While they were escaping, the claimant suffered harm due to defendants high speeding. The
defense of illegality won, and the claim was dismissed.
Other Torts in a business
Other types of torts in business are like the tort of conversion. This one is unlawfully
changing other persons goods into one’s name for personal gain (Mann, Roberts & Smith, 2012).
The tort of Fraud or deceit. In business, fraud are intentional torts of deceit and they occur
through fraudulent misrepresentation. Another tort that may happen in business is the tort of
trespass (Clarkson, Miller, Cross & Clarkson, 2015). This one can be trespass to goods, or
property. It involves entering into someone’s’ property without that person authority or placing
your goods in the claimant’s property without his/her authority.
Role for statutory or public authorities
While the state works to provides people with protection, it still does not force people to
take it (Mann, Roberts & Smith, 2012). There is a need to note that the law allows people to the
most part be the best judges of their interests. Therefore, the law recognizes that it cannot stop
someone from trading off one's freedom with a tortious invasion. After all, it is the people who
know the benefit of the tortious invasion in which they are buying. On the other hand, the state
still regulates to what extent the trading of the freedom can forego. In this way, the looks at the
constraints the trading with the interests of the person or the society. With this, the conclusion is
that tort law strikes a paradoxical balance weighing between the defendant's interests, the
plaintiff, and state responsibility.

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References
Beatty, J., Samuelson, S., & Bredeson, D. (2013). Business law and the legal environment.
Australia: South-Western Cengage Learning.
Clarkson, K., Miller, R., Cross, F., & Clarkson, K. (2015). Business law. Text and Cases (13th
ed.). Cengage Learning.
Mann, R., Roberts, B., & Smith, L. (2012). Smith & Roberson's business law (15th ed.). Mason,
OH: South-Western Cengage Learning.
Varuhas, J. (2014). The Concept of 'Vindication' in the Law of Torts: Rights, Interests and
Damages. Oxford Journal Of Legal Studies, 34(2), 253-293.
http://dx.doi.org/10.1093/ojls/gqt036
Sohn, D. H. (2013). Negligence, genuine error, and litigation. International Journal of General
Medicine, 6, 49–56. http://doi.org/10.2147/IJGM.S24256
Gergen, M. (2013). Negligent Misrepresentation as Contract. Califonia Law Review, 101(4).
Retrieved from http://scholarship.law.berkeley.edu/californialawreview/vol101/iss4/2
Cases
Nettleship v Weston [1971] 3 WLR 370 Court of Appeal
Barnett v Chelsea & Kensington Hospital Management Committee [1968] 2 WLR 422
With v O'Flanagan [1936] Ch 575 Court of Appeal
Bisset v Wilkinson [1927] AC 177
Donoghue v Stevenson [1932] UKHL 100
Stennett v Hancock & Peters [1939] 2 All E.R. 578
JJB Sports v. Office of Fair Trading [2006] E.W.C.A. Civ 1318
Chaudhry v. Prabhakar [1988] All E.R.3 718

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Sayers v. Harlow Urban District Council [1958] W.L.R.1 623
Ashton v. Turner [1980] Q.B.1 137