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The Various Elements of the Tort of Negligence

   

Added on  2020-04-13

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LAWQuestion 1IssueThe core issue is to determine if there has been negligence on the part of the council and ifCraig can recover the damages from the council. The various elements of the tort ofnegligence need to be considered on the basis of conduct of council staff.RuleFor establishing the tort of negligence, the following three elements need to be present.Duty to Care – The defendant must have a duty to care towards the plaintiff. This canbe tested through the neighbour test as outlined in the Donoghue v. Stevenson [1932]AC 562 at 580 case. The neighbour is an entity which in the belief of the action doercan be impacted by the choices exhibited in relation to the inaction or actionundertaken(Davenport & Parker, 2014). Also, the impact should be foreseeably seenfor the duty to care to arise.Breach of Duty – It is essential that the defendant must take adequate measures so asto extend the necessary care to the neighbour or the potential plaintiff. The reasonablecare would be dependent on the underlying circumstances in relation to the likelihoodof damage and severity of the underlying damage. Failure to take reasonable measureswhich would be expected from a person of average intellect would lead to breach ofduty (Lindgren, 2011).Damages – The plaintiff must suffer damages on account of breach of duty. These arenot limited to physical and monetary and may be as emotional or mental stress. It isimperative that the damage must be related to breach of duty. This can be tested byascertaining whether the damage would have still occurred if breach of duty wouldnot have happened. If the occurrence of damage is independent of duty breach, thenthe defendant cannot be held for negligence (Gibson and Fraser, 2014).ApplicationIt is apparent that in the given case, Craig is the plaintiff who went to the local council toobtain information about the restriction on land block which he was interested in purchasing.There is a duty to care on the part of the local council and the agents representing the samesince any wrong information could result in losses which are clearly foreseen. Also, there hasbeen a breach of duty in the given case since the agent could not provide the correctinformation since he was constantly being disturbed by his mobile. It is reasonable to expectthat in public offices, the agent would not attend to personal calls while doing work. Further,damage has been suffered by Craig which could have been avoided had the agent at the localcouncil given the correct information about land acquisition for road widening. Thus, all theelements of tort of negligence are satisfied in the given case.Conclusion

LAWBased on the above discussion, it is apparent that Craig has suffered damages (in terms offinancial loss) owing to negligence of local council agents. Hence, Craig can sue the localcouncil for damages.Question 2IssueThe core issue is to determine whether an enforceable contract exists between Craig’scompany and the architectural firm in light of the actual authority not existing with Tom toenact the contract.RuleAuthority granted to an agent can be actual or apparent. While actual authority comes fromthe position that an individual is duly appointed to, the apparent authority arises from theconduct of the underlying person. If a given individual tends to act in a certain manner whichgives a reasonable indication to the third party that the individual has the requisite authority,then the contracts arising in this manner would be considered as enforceable. This is in linewith the verdict highlighted in the Freeman and Lockyer v Buckhurst ParkProperties(Mangal)Ltd[1964] 2 QB 480 case. In the given case also, a person concernedinspite of not being appointed as the director was acting so and hence the contract enactedwith the third party was held enforceable (Paterson, Robertson and Duke, 2015). Also, withregards to the concerned individual not having the requisite authority, the interest of theinnocent third parties is safeguard in accordance with rule of indoor management. This rulewas highlighted in the landmark Royal British Bank vTurquand(1856) 6 E&B 327case(Carter, 2012).ApplicationIn the given case, even though Tom is not formally appointed as the managing director buthis business card lists his designation as MD and also his conduct reflects the same. Thus itwould be appropriate to conclude that in reality Tom has apparent authority to act asmanaging director. Further, since in the business card and his conduct, it is reflected that Tomis the managing director, hence the architecture firm has reason to assume that Tom has therequisite authority. Considering that the architecture firm has benign intention while enteringthe contract, hence it would be considered as enforceable in line with doctrine of indoormanagement.ConclusionCraig’s company would be bound by the contract entered into by Tom and the same cannotbe considered void on the grounds that Tom lacked the requisite authority.

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