The Legal Actions That Ought to Be Taken against the Island - Case Study Example

Name: Tutor: Course: Date: Spices Introduction Firstly, the case scenario of Julian and Anna has two legal issues that are in dispute. There is the breach of contract in terms of the false promises made in the brochures, as well as, by the in charge when booking the rooms. Secondly, there is the negligent action of the resort at the Bliss Island whereby the house cleaner was responsible for leaving the room unlocked hence leading to lose of valuable property. This essay will therefore discuss the legal actions that ought to be taken against the Island as an entity in terms of negligence of the staff. In addition, it will examine the false misrepresentation that was used to draw the two clients to the resort hence leading to any kind of injury incurred. Lastly, this essay will evaluate what kind of legal remedies that the two clients can seek in terms of damages to restore them to their original state1. Discussion To begin with, the first legal ground that Julian and Anna should use is that of the claim of fraudulent misrepresentation. Fraudulent misrepresentation in business law refers to the making of false promises about a particular fact bearing in mind that the said statement is not true2. This statement is commonly made with the intention of making the other person believe in the false image hence eventually resulting in injury or dissatisfaction. In most circumstances, fraudulent misrepresentation is found to exist whereby the individual making the promises is aware that the statement is possibly fault. In addition, the statement could be made with the intention to induce the party to believe or enter into a contract with the said party. Lastly, the person entering into the contract is eventually injured on realizing that the earlier statements were merely made for business purposes. The first case scenario of Julian and Anna can therefore be placed as fraudulent representation because the expectations of the resort were not as depicted in the brochure. Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968)3 laid down the duty to exercise reasonable care when giving information or advice in formal or informal contractual relationships.4In evaluating as to whether such reasonable care to avoid misrepresentation was exercised, the three conditions mentioned above must be absent in the Julian and Anna case. However, the facts of this case show that there was indeed misrepresentation because of the following reasons. First, Sandra, who was in charge of the island, was aware that Bliss Island did not have the best reef diving as the clients had been promised because she works and manages the place. In addition, she was in responsible in overseeing the replacing of the cakes with the Indian food, which should have been made known to the clients considering it has been the reason that attracted them to the Island. Secondly, bearing in mind that Julian and Anna choose the island specifically based on what they liked doing, holds Sandra and the Island responsible in ensuring that the same was present as the clients were induced to believe. Thirdly, therefore, the poor weather and the Indian food that they found was not what the clients had expected and hence they had suffered injury due to breach of contract. All the above therefore prove beyond reasonable doubt that there was misrepresentation on the part of the Island and hence and liability can be a defense in court. Similarly, the Julian and Anna case scenario has a strong ground because; they were not aware of the conditions of the place and hence relied solely on the advertisement and promises made by Sandra. In addition, the statements per say were made by the person running the resort herself making her knowledge and experience in the Island a viable argument for the aggrieved parties. This is however contrary to the holding in the case of Bisset v Wilkinson [1927]5, whereby, the plaintiff’s case on misrepresentation of fact failed in court. In this case, the two parties were aware of the inability of the land to carry sheep farming hence dismissing the lack of awareness on the plaintiff’s part. Likewise, the statement of the owner having not used the land could not ideally be considered a statement of fact but a mere opinion. Regardless, the case of Esso Petroleum v Mardon [1976]6 QB 80,vividly supports Julian and Ann’s claim because here the Court of Appeal relying on the holding in the case of Hedley Byrne v Heller (1964) found the defendants liable for negligent misrepresentation. The defendants in this case, just like Sandra had special knowledge of the petrol station in question and with their experience; they ought to have advised the plaintiffs truthfully. The above cases therefore show that Julian and Anna have valid grounds to pursue remedies due to the false misrepresentation of Bliss Islands. The second advice to Julian and Anna would be seeking remedy on the grounds of tort of negligence on the employer in the loss of their property. This is because; regardless of the use of the disclaimer in their standard form contract to be exempted from legal action, the aggrieved parties are not barred from seeking remedies for loss of property. In the case Naidoo v Birchwood Hotel 20127 6 SA the court ruled against this kind of defence on the basis that the standard form contract that had such a clause protected mainly the defendant thus making it unfair for the plaintiff. In most cases, disclaimers are convenient exemption clauses that parties use to avoid legal action against them hence leading to injustices on the distressed parties. Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 however laid the essential groundwork for torts in the area of negligence introducing the concept of duty of care. 8 This is to say therefore, the special relationship that existed between Julian, Anna and the Island imposed a duty of care on the Island and their staffs to ensure their clients were protected against any form of injury. Another sufficient ground that would be important to Julian and Anna against the Island would be the ground on reasonably foreseeable liability. Lord Atkins’ test evaluates the kind of acts or omission of acts in the course of reasonable care that could lead to injury of another. For instance, in the management of a hotel, all measures of protection such as hospitality, comfort and safety of an individual are part of their duty. This is because it is important to foresee the kind of harm that can arise in a particular context to be prepared to handle and prevent such occurrences. In Haynes v. Harwood (1935) 91 KB 146, it was shown that it was unnecessary to show that a particular damage was probable as long as such a wrongful act could have been anticipated in any other similar case scenario. This analysis greatly captures the context of Julian and Anna because the probability of theft in the resort or any other resort for that matter is relatively high. Likewise, the presence of the house cleaner that was carrying out duties in their absence required strict liability in terms of prevention from theft or any other kind of tampering with their probable is it is a probable act. The same was addressed in the case of Hyett v. Great Western Railway Co. (1948) 1 KB 345; Carmarthenshire County Council v. Lewis [1955]10 UKHL 2; whereby, the probability of occurrence of an act was found to be enough ground for a reasonable foresee ability. In conclusion, therefore, the act of negligence on the part of the Island in the loss of the property of the aggrieved parties is viable and can be a useful advice to Julian and Anna. Available Remedies: Fraudulent Misrepresentation In the First case scenario, Julian and Anna can seek the remedy of damages due to the fraudulent misrepresentation of the Island advertisement. This is similar to the damages awarded in the case of Doyle v Olby (Ironmongers) Ltd [1969]11 whereby a business belonging to an ironmonger that had been purchased turned out different from that which the plaintiff had been led to expect. This is to say therefore that the aggrieved parties in this case can be advised to seek reparation in the form of general damages because the place had not satisfied their expectations due to the misrepresentation. Similarly, Julian and Anna could be advised to seek the remedy of indemnity, which refers to a sizeable amount of compensation that returns them to their initial place before the breach occurred. Evaluating the case of Whittington v Seale-Hayne (1900)12 for instance, the plaintiff having been induced into an agreement pertaining a lease by an oral promise that it had sanitary conditions turned out to be false. The aggrieved recovered only that which they had lost and nothing more, which could be suitable in the case of Julian and Anna. Available Remedies: Negligence Remedies for most loss of property and injury on the plaintiff are awarded in form of damages. In most circumstances in the Australian courts, damages are paid to the extent that places the aggrieved party to the place it was before such breach occurred. In the case of Julian and Anna, the remedy of damages is acceptable in court upon proving that the probability of the wrongful act was high. Likewise, the breach of duty of care of the Island staff to the clients, in this case Julian and Anna, makes the same remedy appropriate to seek in court. Conclusion Generally, the case of Julian and Anna has proven to be among the numerous cases whereby defendants create injury based on fraudulent misrepresentation. The use of the relevant case law has highlighted similar occurrences that have been successful on such grounds and have provided suitable remedies on the same. It is most likely therefore that if Julian and Anna were to follow such advice, there case against Bliss Island could be successful in court. The remedies discussed if awarded therefore, may indeed help them recover the losses incurred and help them in setting better plans in future. Bibliography Articles and Books Bruce, Alex. Consumer Protection Law in Australia. Chatswood, N.S.W: LexisNexis Butterworths, 2010. Print. Griggs, Lynden, Eileen Webb, and Aviva Y. M. Freilich. Consumer Protection Law. South Melbourne, Vic: Oxford University Press, 2008. Internet resource. Ipp, David, ‘Themes in the law of torts’ (2007) Australian Law Journal 81 Law, Jonathan and Elizabeth Martin, A Dictionary of Law (Oxford University Press, 2012) Lessambo, Felix I. The International Corporate Governance System: Audit Roles and Board Oversight. , 2013. P Cases Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556. Esso Petroleum v Mardon [1976] QB 80 Naidoo v Birchwood Hotel 2012 6 SA 170 (GSJ), Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. Haynes v. Harwood (1935) 1 KB 146 Hyett v. Great Western Railway Co. (1948) 1 KB 345 Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158 Whittington v Seale-Hayne (1900) 82 LT 49 Read More