Australian Tort Law Analysis
Added on 2020-03-23
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Running head: BUSINESS LAW 0Business Law
BUSINESS LAW1Negligence and MisrepresentationThe non-performance of ethical duty for keeping proper attention or care while performing ordealing with certain tasks is known as Negligence. As per Civil Liability Act 2002 (NSW), a lawsuit can be filed with any monetary or physical injury, caused by another person or business’s negligence. There are few steps to prove negligence in the court. According to section 5B of Civil Liability Act 2002 (NSW), the first step includes ‘duty of care’; negligence arises only when someone has a duty of caution or care for performing certain actions. Section 5D provided that injuries caused to plaintiff could be avoided if such duty were performed with caution. As per section 5F, the threat must be obvious from a reasonableperson’s view and no actions were taken by the defendant to avoid such threat (Barker, Cane, Lunney and Trindade 2012). In Stokes v House With No Steps [2016] QSC 79case, the employer failed to perform his duty to keep his employees safe. The negligence of employer causes an injury to the employee and the court awarded $775,048 as damages (Bismark 2012). Providing or representing any wrong fact as real to lure someone into entering a legal contract, which eventually caused loss to such party, is known as misrepresentation. As per Marston and Walsh (2008), the first stage of misrepresentation includes presenting a false fact as correct to another party. The defendant must intentionally present a false fact to another party. The intention of the defendant is to motivating another party to enter into a legal contract by relying upon such false fact. The party suffered a monetary loss due to such illegal contract based upon false fact. According to Bryant (2016), it is a necessity for businesses to maintain proper caution at the workplace to avoid any legal suit for negligence. It is the legal duty of businessman to take proactive measures to avoid any injury to customers, employee or officer, who visits his workplace. For example, a storekeeper left some sharp object on the ground of his shop, which causes injury to customers, then the shopkeeper can be liable for negligence. Another example, if a mechanic did not tell his customer regarding the failure of brakes in a vehicle, then he can be liable for injury caused to the customers, due to his negligence. The example of misrepresentation by a business include, if a salesman sells a defective vehicle to customers by hiding the fault of the vehicle, it will be constituted as a misrepresentation of fact. False advertisement by an organisation also comes under the definition of misrepresentation. If a company show an advertisement of a shampoo than can
BUSINESS LAW2regenerate hair in weeks, that will be considered as misrepresentation. In case any person believe on such fake advertisement and buys the product, and such product causes injury to such person, then the customers have right to file a lawsuit against the company. When a person gives advice to another person, the person has certain duty to maintain cautionwhile giving such advice. As per Chan and Kim (2005), a reasonable care should be maintained by the advisor while giving an oral or written advice. The penalties of wrong advice have the same impact in both oral and written. It is necessary for an advisor to analysethe difference of education or language while giving oral advice, so that other person correctly understood such advice. The failure of advisor to express the correct advice shall be considered as his negligence. The false advice given by advisor with an intention to motivate another person to do a particular task shall be considered as misrepresentation. According to Lazaro (2013), the wrong advice given by an administrative officer, who is considered as a professional of such division, shall be determined as misrepresentation. For example, a law officer who gives the wrong deadline for a filing of a certain case, which causes loss to plaintiff because of not filing the suit, shall be constituted as misrepresentation by a law officer. There are numerous elements which determine the consequences or penalties of negligence ormisrepresentation, conducted by a business. McDonald (2005) provided that the business can provide a counter argument that there is no duty of care available or that a reasonable person would have done the same thing. The burden of proving the breach of duty by the defendant is upon the claimant. The claimant has to prove the control of defendant over a particular situation which could cause injury to some party without proper caution. The penalty and damages for negligence or misrepresentation are based upon the level of injury caused by the claimant or its future consequences. The court has to analyse and provide either monetary or punitive award to the claimant, as per the situation of the case. Following are few of the many defenses available to the defendant in the lawsuit of negligence: The Presumption of Risk: According to Goudkamp (2006), if the risk of danger is obvious to a reasonable person and claimant could have avoided such risk by proper caution, then the claimant loses the right to file a suit of negligence. For example, if a customer buys a product with a certain level of risk, such as acid or naphthalene balls,
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