Law and Duty of Care - Essay Example

?Introduction Several laws are in existence for the benefit of different citizens and organizations. The here are different sources of law including legislated law, customary law or laws based on precedence. Within the usual daily activities, several crimes or mistakes are conducted against the law. Most of the crimes committed in most cases relate to torts which are either intentional or by mistake. In the execution of the law of torts it is necessary to understand the provisions that guide on this law. Tort law and the law on contracts are the most commonly referred within the legal circles. This essay is going to analyse the provision of duty of care in tort law. Law and Duty of Care A tort can be defined as a wrongdoing or action upon which damages can be brought or in other terms it is referred to as an act or omission by the defendant, which causes damage to the claimant. The important task of undertaking business activities requires adherence to regulations and laws. Tort law recognises a provision known as duty of care whereby the action of a person that amounts to negligence is punishable by the tort law. Duty of care emphasizes on the responsibility on the part of both or more parties as it relates to the involvement in a specific case or scenario. The principle of duty of care arises from previous cases as it relates to the tort law (Steele, 2007). For instance, the case of Anns v Merton LBC [1978] AC 728 (HL) whereby the judge Lord Wilberforce held that a two stage approach would be used in determining the care of duty. In this case the issue of prima facie in determining the relationship between claimant and defendant while the second approach focused on the scope of duty. Future cases in relation to the tort law, other approaches emerged in the determination of duty of care (Harpwood, 2000). The duty of care can also be exercised within the job industry since it causes a lot of problems for employers and employees. In the process of handing out references for current and former employees, duty of care should be exercised. Issues dealing with reference should be handled in a proper manner since misrepresentation of the employee or client results in tort. For instance if a former employer or institution affiliated to a specific person presents information such as misleading reference without proper notification to the employee then a tort has occurred (Koziol, 2009). In this essay we are going to look into such scenarios in relation to the University of Sussex and its current or former students. The University is large institution with a large student population and more frequently the university receives request to have the institution hand out references (Best, 2007). When references are handed out the university owes the third party a duty of care regarding the reference issued out on the former or current students. The University has to exercise high standards of professionalism and ensure that the duty of care is handled properly when it comes to handing out references. The issues that need to be looked into from a legal standpoint include the misstatement or misrepresentation. References handed out onto potential employers must not be inaccurate or misleading. Therefore the University of Sussex has to exercise care in handing out references since it is against the law to misrepresent information concerning current of former students (Magnus, 2004). A student enrolled in the University of Sussex enters into a contract with the university to undertake certain courses for a given period of time. This contract is subject to terms agreed in the contract and upon graduation the University can refer its students to potential employers (Steele, 2007). However, the University has to exercise care in the provision of information concerning its students. For instance, if the university refers a student to an employer through misrepresenting reference then the university can be sued under tort law for negligent misrepresentation. The University should understand the provision on duty of care with emphasis on if the provision infringes on the laws and regulations of the university (Harpwood, 2000). The three reasons that could lead to negligence in tort law includes prima facie whereby the court asses if the damage was intentional. Using this provision the University of Sussex is obliged to provide correct information even if that information might disadvantage its students. Furthermore, in the undertaking of making references the university should also make the information available to the affected students before handing out the reference to potential employers (Koziol, 2009). This is similar to the case of Spring v Guardian Assurance whereby the judge held that the employer should have notified the employee on the preparation of the reference. As much as duty of care is owed to students, the University of Sussex should not be held responsible for preparation of reference that might not be fully detailed. This is because the university does not have full obligation to provide student information on the references they prepare (Best, 2007). In contract and tort law it is important for the claimant to prove that the defendant acts lead to negligence and breach on duty of care. This is because the claimant has to define that he/she has just and reasonable grounds to impose liability. Therefore the University of Sussex is obligated to provide reference based on factual information regarding its current of former students to interested parties (Magnus, 2004). Conclusion The relationship between different parties in several and different business activities is protected by the law. Duty of care is a provision in the tort law that cautions parties from engaging in negligence as it relates to other parties. Misrepresenting information could be injurious to the aggrieved parties and therefore the law is set to protect the claimant. Potential employers rely on reference passed onto them on the conduct of prospective employees and this information should be factual. Consequently, universities such as Sussex have the obligation of presenting factual information on former and current as an obligation of exercising duty of care. In the process of proving negligence in tort law, the claimant has the burden of proofing that the negligence was prima facie or there are just reasons to impose liability. References Best, A. and Barnes, D., 2007. Basic tort law: cases, statutes, and problems. London: FK Publications. Harpwood, V., 2000. Principles of tort law. Chicago, IL: John Wiley and Sons. Koziol, H. and Steininge, B., 2009. European Tort Law 2008. Berlin: Heinesberger Publications. Magnus, U. Martin-Casals, M. and Boom, W., 2004. Unification of tort law: contributory negligence. Boston, MA: Pelshiver. Steele, J., 2007. Tort Law: Text, Cases, & Materials. London: Penguin Publishers. Read More