- Internal Code :
- Subject Code : LAW105
- University : Charles Darwin University
- Subject Name : Law
Introduction to Business Law
Table of Contents
Introduction.
Elements of negligent misstatements.
Duty of care.
Breach.
Causation.
Damages.
Prevention to negligent misstatement
Conclusion.
References.
Introduction to Elements Of Negligence Claim
Many individuals in their professional and business life who used to run their daily like actions and processes are completely aware of the fact that the negligent advice or the use of negligence misstatement can lead them towards a lot of issues and may expose them towards the liability. Such people cannot be considered as the professionals in their lives. Negligent misstatement is a depiction of fact particularly which is not made with responsibility and give a huge disadvantage not to the person himself but to another party who has to face thing instead of the person who used the negligent misstatement[1]. In the law, it is brought in the tort which is the name of one law branch which is made to impose the civil liabilities if one has been guilty of the breach of obligations. The tort of negligence and negligent misstatement is the most common one which is known to be imposing the obligation not to breach the actions of care one party needs owe to the other. Further in the essay, the elements of the negligent misstatement will be covered relating to the cases of the present law, legislation, and other sources. Moreover, there are also some remedies and ways through which the negligent misstatement can be prevented. Such ways for prevention will also be discussed below.
Elements of Negligent Misstatements
In the past, some cases have been passed which has cleared the concept of negligent misstatement and this is the reason that the laws are present for most types of torts leading from the negligence between two or more parties. To prove that negligent misstatement has occurred some elements need to be analyzed whether they are breached with negligence or not. Some of the identified elements of the negligent misstatement are discussed below.
Duty of Care
The first and most important element of negligent misstatement in law is whether there was any duty of care that existed between the plaintiff and the negligent party or a person. Plaintiff whose right of care has been breached needs to claim this and prove this. Normally, the duty of care does not exist but when it does its entire scope is dependent on the relationship between two parties. This element explains by not providing any harm to the other party through any action. Some of the relationships where the duty of care exists are employee to employee, a landlord to the visitor, a doctor to patient, a teacher to student, and more. With consideration to the Australian law handbook (2009), a duty of care is all about taking responsibility for any skill or care which a normal person in his daily life takes. However, the absence of a contract can also bring some issues for both parties and breach cannot be proved. Under the law, in Derry v Peek (1889) 12 App Cas 337, it is said that negligence misstatement is not able to support the action because of the absence of contract or an obligation which can be enough to impose the duty of care[2].
Breach
Once the elements of duty of care have been justified by the plaintiff, another element of negligent misstatement arises which is a breach of duty of care. Once the plaintiff proves the duty of care over the defendant who is a second party, now they need to prove that defendant is guilty of breaching that duty of care[3]. For this, the person who was harmed needs to prove that there was a substantial risk of harm for himself, the risk for unseen and cannot be measured. If the risk is obvious than the defendant will not be blamed because the plaintiff will be accountable for his actions as he was unable to manage the risks before.
Causation
Another element of negligent misstatement is that plaintiff needs to prove that the injury, disadvantage, or damage faced by him came as a consequence of the breach of duty of care. Through this, it will be cleared about what harm the person who owes the care provided to the other party and was he the one who did so.
Damages
This is the final and last element of negligent misstatement when the plaintiff succeed to prove the duty of care, breach, and then the causation. This is the step where this party can lawfully claim for compensation as a result of the harm or disadvantage which they suffered. Here the element of obtaining remedy also comes when the law has a concern to compensate the victim without punishing the breaching party. According to the law of negligence and limitations of liability act 2008 (NI), the court will consider some factors for deciding the compensation for the victim party. The amount of financial loss faced by the plaintiff is observed, it is seen how severe the loss was and the total impact of a negligent misstatement on the future of the victim. Based on these factors the compensation is finally decided.
Prevention to Negligent Misstatement
As discussed above that negligent misstatement can lead to a lot of issues for the person who is the wrongdoer and does not take care or responsibility which he has been allotted by another party. This is the reason that making a negligent misstatement can lead to a lot of disadvantages for a person in his professional and business life. This sort of bad impact stays with a person for a lifetime and damages his reputation in the business and the market badly.
There are some remedies and ways through which one can prevent himself from making the negligent misstatement in his professional or business life. First of all, when there is a sense of duty or care between two parties where a defendant owes a duty of care to the other party needs to make sure that a contract exists which plays a role of evidence that one person is now bound to fulfill his duty for another party. Another way to prevent or avoid making negligent misstatement is through transforming the mindset and ideology of business. The person who used to run his business honestly and fulfills the duty of care put by any party, does not face issues in professional and business life. Therefore, a person needs to understand that he will not get any benefit if used to breach the duty of care for any party. The person who uses the negligent statement should know that he will not be providing a disadvantage or injury to the victim party only but also to himself by affecting the reputation and business operations. The communication works a lot if a person wants to prevent or avoid negligent misstatement.
If there is a healthy collaboration and communication among both the parties, there are least chances for the person who owes the duty of care to the claimant that he will make the false or misleading statement to him. The communication can be made stronger when the occurrence of negligent misstatement can be prevented if a third party is involved between two parties. The third party plays the role of a person who is a middleman and negotiates the matters among two parties. The presence of a third party will benefit in the avoidance of negligent misstatement because the person who intends to make the misstatement will stop because he would he can be get caught by a third party in between. Moreover, the victim party also trusts the third party as he will not let anyone providing us an injury or disadvantage to our business. The presence of a third party will make sure that written documents are involved between both parties to fulfill the duty of care. Another way to prevent the occurrence of negligent misstatement is through making a contract between both parties. This will bind both of them to stick to the agreed terms and it will get easy for the claimant to claim the negligent misstatement in the court in accordance to the available law and the wrongdoer will not be able to deny his actions and will end up to compensate the misstatement economically or non-economically.
Conclusion on Elements Of Negligence Claim
It is concluded that negligent misstatement is a depiction of fact, particularly which is not made with responsibility and give a huge disadvantage not to the person himself but to another party who has to face thing instead of the person who used the negligent misstatement. To prove that negligent misstatement has occurred there are some elements that need to be analyzed whether they are breached with negligence or not. Some common elements for negligent misstatement are duty of care, breach, causation, and damage... The person who uses the negligent statement should know that he will not be providing a disadvantage or injury to the victim party only but also himself by affecting the reputation and business operations. Negligent misstatement can lead to a lot of issues for the person who is the wrongdoer and does not take care or responsibility which he has been allotted by another party. This is the reason that making a negligent misstatement can lead to a lot of disadvantages for a person in his professional and business life.
References for Elements Of Negligence Claim
"The Elements Of Negligence Claim In NSW Explained", Taylor & Scott Lawyers (Webpage, 2020) <https://www.taylorandscott.com.au/compensation-lawyers/the-four-elements-that-make-up-a-negligence-claim/>
Uk.Practicallaw.Thomsonreuters.Com (Webpage, 2020) <https://uk.practicallaw.thomsonreuters.com/6-107-6878?transitionType=Default&contextData=(sc.Default)&firstPage=true>
"Tort Of Negligent Misstatement", Lawteacher.Net (Webpage, 2020) <https://www.lawteacher.net/free-law-essays/contract-law/tort-of-negligent-misstatement-contract-law-essay.php>
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