Breach of a Legal Duty of Care - Assignment Example

Research Paper On Hypothetical case scenario Subject: Foundations of Business Law Name: Date: April, 2013. Professor: Outline Thesis: We have learnt in the last four topics on the nature of law and case study of Australian legal system. It is clear from the study that principal and subsidiary legislations takes precedence over common law in resolving legal disputes between individual or between state and her citizens. If there is no legislation, then Common law (case law) is applied. If common law does not provide a legal solution, then Courts resort to Equity. This is the nature of a common law system as opposed to a civil law that applies civil codes. Now the researcher has sought solution to a hypothetical scenario that required application of Common Law. Although we haven’t studied topic 5, the scenario predominantly relate to the tort of negligence. The writer has raised issues, and resolved them while determining the legal consequences of the scenario. The researcher maintains that there is a likelihood of “breach of a legal duty of care” by the banker. However, whereas this breach may be proved, the other party also assumed the risk of injury and or contributed to its happening. I: Brief facts II: Law applicable Question 1: III: Raising issues IV: Legal consequences of the scenario V: conclusion Question 2: VI: Defences available to the Banker and a conclusion Works cited. Legal authorities used in the paper Brief Facts The Global Banking Corporation desired to review its operations in Australia for a year. They appointed a Malaysian consulting firm to do so. It was found that high salaries are reducing its profitability. They recommended the bank to employ junior staff and trainees to lower salaries. The bank accordingly implemented the recommendation. The Adelaide branch manager is delighted with enthusiastic and energy young recruits contributing to 40% decrease in operating cost. One of them is Sam at the enquiry desk that was found engaging an elderly man. The man desires to invest in the bank’s “Currency Hedge Fund.” The client was given glossary brochures but not essential materials relating to the fund. However, as the client was leaving the premises running to catch his bus, he fell and injured himself due to slippery floor caused by water from rain that entered the premises as more people were coming in. Law applicable 1. The Fictional “workplace safety Act, 2000 (SA)”, section 5. 2. Civil Liability Act 2003 (Qld) 3. Case Law Question one Raising Legal issues 1. Who are the parties to this case scenario? 2. What are the duties and obligations of Global banking Corporation to its customers? 3. What are the duties and obligations of the customers to the banker? 4. Whether the elderly man was a bank customer? 5. Whether the banker can be held vicariously liable for Sam’s advice to the old man in case of loss of money? 6. What remedies are available to the aggrieved parties? 7. What are the possible defences available to the Bank if any? Possible legal consequences of the above scenario In determining the relevant legal consequences to this scenario, the researcher shall jointly resolve the above issues. To this effect, Parties to a case are persons who may either directly or indirectly be involved in any law suit or court proceedings as per Farlex(2012). In the current circumstances, the possible parties include; a) The Global Banking Corporation (banker), b) Employees of the banker such a Sam, and c) Customers of the banker such as the old white man. He becomes a customer by opening up an account with the bank and where he has a desire to open up one and goes ahead to do so later as per the Court in “Tax Commissioner v Scotish and Australian Bank (687).” Becoming a customer comes with its own consequences. One of the consequences is the “duty of care” performed by each party. With reference to issues, a banker is under a duty and obligation to uphold a “duty of care.” Where the banker misrepresents the customer leading to loss or damage, then the Banker may be held liable as observed by the “House of Lords” as they were then in “Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964).” Misrepresentation is a tort arising out of an economic interest where one party is falsely represented as to facts constituting a particular transaction by another. It’s an intentional and factual misleading statement inducing the innocent party to rely on it. If that person wholly relies on such a misrepresentation that leads to economic harm, the misleading person can be held liable for negligent misrepresentation as observed by Court in “Pacific Dunlop v Hogan (1989)” involving a commercial televised advertisement for shoes by “crocodile Dundee.” The Court held that tne manner in which the advertisement was run was misleading to the viewers and customers contrary to section 52 of "the Trade Practices Act (1974).” Similarly the Court of Appeal in “James McNaughton Papers Group Ltd. v Hicks Anderson & Co” adopted a more restricted approach by focusing on the adviser's actual and constructive knowledge of the purpose for which the statement was made. Therefore, the duty was to be limited to transactions or types of transactions where the adviser knew or ought to have known that the advisee would rely on the statement in connection with that transaction without obtaining independent advice. It also had to be shown that the advisee did in fact reasonably rely on the statement without using his own judgment or obtaining independent advice. In the current scenario, the bank may be vicariously liable for the misrepresentation made by Sam (as an employee of the Bank) to the old white man based on assurance of 10% interest on his investment of $10000 into the said fund. It is clear that there is a likely hood of loss because the bank manager instructed the employees to withheld important information when Sam handed the customer a glossy brochure other than the “thick white document” that has all the details. If the customer invest the above fee into the fund and consequently suffers harm while relying on that statement, then the banker will be vicariously liable for negligent misrepresentation. Prior to taking the brochure, the customer asked if he will not lose his money. Sam assured him of that protection. Accordingly, Sam offered him a glossy brochure knowing that it has insufficient information about the fund. If the old man suffers a financial loss, the Banker will be vicariously liable for negligent misstatement as upheld in Hedley Byrne’s case above. The other legal consequence relates to the customer’s injury sustained while leaving the Banking premises. Assuming that it’s settled Law, that section 5 of the Workplace safety Act provides for employers providing for safe work place environment, it means that the Bank ought to have cleaners around the premises mopping the rain water persistently. This is a clear reflection of “duty of care.” This is for the safety of all people using the banking premises from damage. The safety of the people is every one’s responsibility. Therefore, section is a statutory law and binding employers to provide a safe working place to the workers and clients. This means that the employer (banker) was negligent. The Banker owed a “duty of care” to the old man because he was their neighbour who was directly or indirectly injured by the banker’s negligence according Lord Atkin in the case of “Donoghue vs. Stevenson (1932).” Conclusion Applying the principles of the above case, there was proximity between the injured old man and Bank pointing to breach of “legal duty of care” by the banker. Under this duty, the banker ought to have foresean that failure to employee a cleaner would lead to innevitable consequences like the injury suffered by the old man. Therefore all the factors of duty of care including proximity, foreseability and notions fair, just and reasonableness shows that the banker was negligent as a consequence of “breacch of a legal duty of care.” The injured old man may sustain a cause of action against the Bank seeking for special, exemplary and general damages, interests plus costs of the suit as remedies for the aggrieved party. The banker may also be sued for negligent misrepresentation arising from Sam’s advice to the old man if he loses his money. Question two Possible legal defences available to the Bank to lessen or avoid liability The possible defences available for the Bank are “volenti non fit injuria or voluntary assumption of risk” and contributory negligence. These are common law defences applicable in Australia as a common law Country. However, Contributory negligence is now a statutory defence provided for under Sections 23 and 24 of the Australian “Civil Liability Act (2003).” “Voluntary assumption of risk” simply means that the plaintiff voluntarily assumed risk by doing an act which he knew would harm himself as per “Walmsley AJ in Green v Country Rugby Football League of NSW Inc , (2008).” Contributary Negligence, means a situation where the plaintiff does something contributing to his own injury. This is the import of Section 23 of the Australian “Civil Liability Act (2003).” The same test of “the duty of care” discused above such as foreseability, proximity and notinos of just, fair and reasonable will be applied in determining whether the old man contributed to that negligence. It’s the test of “a reasonable person.” Court will ascertain what a reasonable person would have done in the circumstances. Whereas the banker may be negligent, it’s possible that the old man contributed to his own injury. Proof of it will lessen the banker’s damages according to 24 of the “civil liability Act (2003).” Conclsion From the facts, it’s indicated that when the old man saw his bus, he chose to run well knowing that it was raining. He never cared that he was old and that there is a likelyhood of him falling. It was also foreseable that people were entering into the premises and any reasonable person cannot run inside the premises for you may either knock and injur another perosn or yourself. It shall be the banks submission that the old man voluntarily assumed the risk by runing as soon as he saw his bus. In the alternative, they will plead contributary negligence to lessen damages. Works cited Civil Liability Act 2003 (Qld). Donoghue vs. Stevenson [1932] AC 562 . Farlex. "Legal Dictionary." 2012. The Free Dictionary. 26 April 2013 . Green v Country Rugby Football League of NSW Inc (Supreme Court January 31, 2008). Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465. James McNaughton Papers Group Ltd. v Hicks Anderson & Co (1991) 1 AER 134 Pacific Dunlop v Hogan (1989) 23 FCR 553. Tax Commissioner v Scotish and Australian Bank [1920] AC 683. Trade Practices Act 1974 (Cth) Read More