The Law of Tort - Essay Example

Law of Torts Q1 The Candler v Crane Christmas [1951] 2 KB 164 was the first case that paved way for liability in negligent misstatements. Lord Denning argued that: Accountants are professionals whose knowledge and skill should be used responsibly, as they are indebted for their advice, to not only the contracting clients, but also any third parties who may make decisions based on their advice. According to this case, the clients, or third party following their advice if they were aware the information would be put to such use prior to supplying it should hold accountants responsible for any loss in investment that was occasioned. This duty applies not only to accountants, but also to surveyor’s valuers, actualists and any other professionals whose advice may be formerly sought concerning business transactions or any other action requiring their expertise. After this landmark case, Hedley Byrne and Co v Heller and Partners [1964] AC 465 case, set the legal precedence for future actions and the rules entitling the claims for negligent misstatements. In this case, it was decided that there must be a special relationship, between the two parties, which is based on the professional skills and judgment of the defendant and reliance on these by the plaintiff. According to Hedley, a special or fiducially relationship would have to be proven before the duty of care could be recognized, thus, the advisor must have special skills which the client relied on in the transactions (Morgan 2009). In Edwin Evans and Sons [1982] QB 438 a valuer neglected to sufficiently carry out the survey of a house and the costs of repairs for this house were more than the properties’ value the court determined there was indeed a breach of duty since the surveyors professional advice had resulted in losses for the client (Heining 2012). This is because legally, the document of a contract implies obligations on both parties, in this case the surveyor was paid, thus the client fulfilled his side but in their doing substandard work, they violated the contract opening themselves to action (Gergen 2011). Hence, the advising individual must be in possession of special skills in relation to the nature of they advise give, for instance, if one is to advice on road construction, they must be a licensed civil engineers and this must be proven before the duties can come into effect. In instances where one give advice in professional capacity or has the recipient of the advice, believe they are in possession of expertise in the relevant field, they will be held responsible for any resultant losses, or detriments in property value (Gergen 2011). In Mutual Life and Citizens Assurance v Evatt 1971, the insurance company was deemed not to owe a duty since they had no expertise in giving advice. Conversely, Esso Petroleum Co Ltd v Mardon 1976, was found liable since they were professionals in the petro industry and although they were not in the business of giving advice like lawyers and accountants (Morgan 2009). Therefore, for the giver of the advice to be found liable, the claimant must prove beyond reasonable doubt that they acted in reliance to the counsel and that the incurred losses were resultant of the same, it will also apply if the reliance on the advice was foreseeable. In the case of Marks [1983] 3 All ER 289, a negligent statement was provided by a valuing company, however since the value had no bearing on the reason why purchase was made, the valuing firm could not be held liable. Additionally, if the claimant is part of a large group, liability will not apply, the appeal court provided further guidance on this subject of law in 1991 in James McNaughton Paper Group Ltd v Hicks Anderson and Co. According to this law case, six factors were to be considered: the objective for making the statement, the purpose for making the statement, the relationship between the advice-giver, advisee and third parties, size of the advisee’s class, advisors state of knowledge and the extent of reliance on the advice. The above judgment proved highly influential in the determination of the case where a discontinued employee received negative references from their former boss, without due consideration to the above factors. In the 2001 in Cox v Sun Alliance [2001] EWCA Civ 649, a suspended manager won the case when his former employer disclosed negative information in a reference even after he had agreed not to do so. The court decreed that for a former employer to give unfavourable references; they must have reasonable ground to believe these claims, investigate carefully and before issuing such data to perspective employers. Q2 Types of Trespass Trespass to land: Anyone who goes into another’s land without consent invitation or license and whose presence is unknown or objectionable to, by the landowner, can be considered a trespasser; trespass to land is interference with the procession of land. An action trespass can be pursued without requiring the plaintiff to prove that any actual damage was done, as such even when one unintentionally enters private land or carries out activities therein, they are still held accountable. There are several different forms of trespass on land and these include trespass by wrongful entry where someone leaves the right of way and thus becomes a trespasser by so doing. This can also be the case when someone occupies and refuses to leave others land, despite the fact that, the squatter does not have any proof of ownership of the land and the claimant has the title deed. In addition, there is the trespass in remaining on land, when someone has been invited or otherwise has the right to access the land, then the right ends, they are expected to leave. In refusing to exit the land even after their right has expired, the individual is liable to trespass on grounds of remain in land, this will also apply if they try to re-enter the land after the period on which they were expected to remain within has expired and they have left (Heining 2012). Trespass by putting and object on another’s land without their consent, such may include but not limited to, grazing livestock in someone’s land, planting a fence, or erecting structures on another land. In such situations, claimants can bring successive suits until the offending object is taken away from their land in the case of Holmes v Wilson [1839] 10 A&E 503. The claimant brought actions successively, until the road supports that had encroached their land were taken down. However, if the objects cause the owner of the land loss, they may be retained until the trespasser compensates them for the loss, furthermore, the claimant is entitled to compensation in terms of rent (Heining 2012). That is if the unlawful occupation resulted to loss on business or income form the land, when trespassers refuse to leave, reasonable force can lawfully be used to evict them however in some special circumstances, statutes may outlaw this. Trespass ab initio means trespass form the beginning and applies to people who access land lawfully then engage in activities are outside the mandate of their warrant or mandate in the land such as engaging in illegal searches. Finally, there is trespass above and below surface of land; such trespass includes tunneling under land, or flying unreasonably close to the surface of the land that one may interfere with the owner’s enjoyment of the land (Heining 2012). Trespass to goods is an intentional or negligent interference with a claimant’s goods the tort originates form detinue action concerning such trespass allows the right to reparation, damages, and or orders the returning of the chattels to the original owner. Therefore, it is mostly concerned with the removal of goods from the claimant’s possession and its scope can cover even mere physical contact with the said goods Most commonly it involves the removal of the claimant’s goods from his possession. In the case of Kirk v Gregory (1876) 1 Ex D 55 and William Leitch v Leydon [1931] AC 90, it was proven that even temporary removal of goods can constitute to the trespass tort, the principles that apply in this tort are: The direct contact with the goods must be established for the tort to apply. Moreover, the action must have been intentional or negligent otherwise there can be no trespass and the goods must be in the possession of the claimant albeit not necessarily belong to him, at the time of the trespass. In order to prove the trespass occurred, the owner must also proof that they were deprived of their chattel for a period, for them to prove damages were owed. Q3 Under certain special, circumstances, the author, or originator of a defamatory statement or statements is entitled to absolute privileges and no action can be taken against them based on their words. These circumstances include statements made on the floor of the house in parliament, notwithstanding, the house can waive the privilege depending on the circumstances, the protection of statements within parliament is provided by the Bill of rights 1688. The official reports of parliamentary proceeding are also protected and one cannot be prosecuted because of what has been published therein, under the official reports Act 1940 (Heining 2012). Statements made In the course of judicial proceeding are also protected under the absolute privilege covering all the involved parties As such, jurors, judges, lawyers , witnesses, and prosecutors cannot be accused of defamation for statements made in the course of courtroom proceedings, it does not, however, cover member of the public present in the proceedings. In Richmond v McHale, 2012 Pa Super LEXIS 2 (January 4, 2012), the court found in favour of the defendant after he was accused of making comments aimed at intimidating with the fear of criminal prosecution during a discovery meeting. The court disagreed and decided that the comments were not incriminatory and even if they had been, McHale was protected under the absolute privilege (Nicholas 2012). Communications between a client and their solicitor are also privileged, as such any private information that the lawyer hears from their client they are legally bound not to share with anyone else and cannot use it to incriminate them even after the termination of the relationship (Heining 2012). This is to say that a lawyer cannot testify against his client basing his testimony on privileged information that was supplied to them in confidence as it was protected under the attorney client privilege act. Communications between officers of state such as ministers is privileged as long as it was done in their official capacity and in the line of duty, thus any information disclosed by a government official to another is protected. Thus, however this is the extents of the privileges are often open to discussion by defamation attorneys especially in cases involving personal misconduct when an official is involved in personal and/or professional misconduct. References Gergen, M. P. 2011. “ Negligent Misrepresentation as Contract. UC Berkeley: Berkeley Program in Law and Economics” [Online] Available at http://www.escholarship.org/uc/item/1vc0j5x5# [Accessed on Feb. 2013]. Heining, M. 2012.“Modulartraining Course Module One General And Civil Costs Section 1c. The Law of Tort” 3rd edition. alcd Training. (Print) Morgan, L. 2009. (B.A. (Hons) Business and Law). “Obligations II - Tort module 2009, Level 6” The New Researcher, vol. 1: pp. 24-27 ISSN 2041-7357 Nicolas, E. 2012. “Speak Freely And Breathe Easy: The Absolute Privilege In Judicial Proceedings” Schnader Harrison Segal & Lewis LLP. 201. [Online] Available at. http://www.mondaq.com/unitedstates/x/176826/Libel+Defamation/Speak+Freely+and+Breathe+Easy+The+Absolute+Privilege+in+Judicial+Proceedings [Accessed on Feb. 2013]. Read More