Negligent Misstatement and Private Nuisance: A Case Analysis

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Name: Jagadeesh Patil M G
Student Number: 1202165/2
Module Name: Law for Surveyors
Module Code: LAW7LFS
Word Count: 3215

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Part a
The first issue which is raised in this scenario is whether Jane has the right to sue Lily
and claim damages for negligent misstatement. This issue is raised based on the
negligent advice given by Lily to Jane. In order to determine Jane’s right, the elements of
establishing a negligent misstatement will be evaluated along with analysis of relevant
cases. This part will argue whether the advice given by Lily during the coffee break of
the one-day course is considered as negligent misstatement.
A tort is referred to a civil wrong or infringement of a right which leads to legal liability.
The law of torts focuses on determining when a person who has suffered any loss or
injury due to the actions of another party has the right to recover damage for such loss
or injury (Oberdiek, 2014). Various boundaries are provided by the law of torts to
maintain a balance between the interests of the person who wanted to recover damages
for the loss and who has suffered the injury. The tort of negligent misstatement is
referred to an inaccurate or false statement which is made by a party honestly but
carelessly. This statement is usually made by a party who has special skills and
knowledge, and it is made to another party who did not possess those skills and
knowledge (Barker, Grantham, and Swain, 2015). In today’s society, the tort of
negligent misstatement is common, however, its roots back to medieval times and
recognised by courts since. While filing a suit for a negligent misstatement by a party,
there are certain elements which are necessary to be present. In case these elements are
not violated by parties, then a suit for negligence misstatement cannot be filed.
The liability of negligent misstatement was recognised by the court in the case of Hedley
Byrne v Heller [1964] AC 465. Prior to this case, the parties have to show recklessness
while making a deceit claim. For example, the court provided in Candler v Crane,
Christmas & Co [1951] 2 KB 164 that the accountants did not owe a duty of care while
disclosing accounts to third parties (Campbell, 2016). However, Lord Denning dissented
this ruling in the judgement of Hedley Byrne v Heller case. In this case, Hedley Byrne
wanted to get reassurance regarding whether or not they should provide credit to
another company, Eazipower. They get credit reference from Heller & Partners who
were client’s bankers that provided in favour of giving credit. Hedley Byrne relied on
the reference and suffered financial loss as the client went into liquidation. The House of

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Lords provided in this case that if the accountants knew about the occurrence of reliant
transactions, then a duty of care can be imposed on their actions, however, they cannot
be held liable on the facts. In this case, it was held that there must be a special
relationship between parties and then reasonable reliance in order to hold another
party liable for negligent misstatement (Barker, Grantham, and Swain, 2015).
While establishing a suit for negligent misstatement, three elements must be present.
There must be the element of fault in which the parties must present proof which shows
that one party has committed the tortuous act either negligently or intentionally. The
plaintiff is also required to prove the element of actual damage in which it must be
established that the plaintiff has suffered actual loss or injury as a result of the tortuous
acts of the defendant (Hough and Kuhnel-Fitchen, 2014). The objective of the law of
torts is to compensate the victim which means that the element of obtaining remedy
must be present in which the court must put the victim in the position they enjoyed
before the wrongful act took place. The court evaluates various factors while
determining whether a party is liable for the suit of negligent misstatement or not. A
person against whom a suit for negligent misstatement has filed must owe a legal duty
of care. As per this duty, the person must take reasonable care which is expected from a
reasonable person in a particular position (Ni Fhloinn, 2017).
There are three stages of providing a duty of care which include foreseeability of the
damages based on the act or omission of the party. Proximity or close relationship
between the parties of the dispute. The vulnerable of the plaintiff to suffer harm due to
the result of defendant’s actions (Burns, 2013). These elements were identified by the
court in the judgement of Cole v South Tweed Heads Rugby League Football Club Limited
[2004] HCA 29 case. Another element is failure to maintain the standard of care due to
violation of the duty. The standard of care is evaluated by the court based on an
objective test which evaluate whether reasonable care is maintained which is expected
from a reasonable person in a particular situation. Another element is that the damages
must be caused to the plaintiff as provided by the court in Lindeman Limited v Colvin
[1946] HCA 35 case. In case damages are not caused to the party, then a suit for
negligent misstatement cannot be filed against a party (Hodgson, 2016).
In the given scenario, Jane visited one-day course called Gardening made easy of Lily
who is a gardening expert. Lily clearly mentioned that she is happy to answer all the

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questions which are asked during the course. During the course, Lily gave advice to Bill
who has a south facing garden similar to Jane, therefore, she writes down such advice.
During the coffee break, Jane asked Lily regarding suitable plants for her garden, and
Lily provided similar recommendations as she has given to Bill along with some other
recommendations which were wrong since plants failed to thrive and it costs £1,000
loss to Jane. In order to hold Lily for negligent misstatement, Jane has to prove that
certain elements were present in the parties. As per the principles discussed in Hedley
Byrne v Heller case, a duty of owed by Lily as she possesses the skills and knowledge to
know that those plants will not be able to thrive in a south facing garden. A special
relationship exists between Jane and Lily since Jane went to Lily’s course to learn more
about plants which thrive in her garden.
The element of reasonable reliance was present in this case as well since Jane relied on
Lily’s advice. A duty of care was owed by Lily since there was foreseeability of risk,
proximity relationship and vulnerability of Jane (Cole v South Tweed Heads Rugby
League Football Club Limited). This duty was violated by Lily since she gave false advice
to Jane which no reasonable person would in the particular situation. Although Lily has
clearly specified that she will only give advice during the course and Jane ask for her
advice during coffee break, however, she still owed a duty towards Jane. Moreover, Lily
violated her duty towards her audience when she gave wrong advice to Bill as well. As
discussed in Lindeman Limited v Colvin case, Jane suffered damages of £1,000 due to the
negligent misstatement of Lily. Therefore, all the essential elements of proving negligent
misstatement are present in this scenario based on which Jane has the right to hold Lily
liable for claiming remedies for the damages suffered.
In conclusion, Jane is most likely to succeed in the case of negligent misstatement filed
against Lily for the advice which she gave during the coffee break of the case. Although
Lily specified that she would only answer those questions which are asked during the
course, however, she owed a duty during the coffee break as well. Moreover, she also
gave wrong information to her audience while giving advice to Bill, therefore, Jane is
most likely to succeed in claiming remedies for her loss.