200432-Negligence Against Jack and Bronco

In Barnett v Chelsea & Kensington Hospital case, the court provided a “but-for” test. This test provided that the plaintiff would not have suffered damages, but for the actions of the defendant, he suffered loss. Thus, a suit for negligence can be filed by him. Furthermore, the principle of vicarious liability as given in the common law provides that the employer can be held liable for the actions of his/her employee. In Benjamin Collett v Gary Smith & Middlesbrough Football and Athletics Club case, Collett was playing for Manchester United, and he tackled the defendant that caused a fracture. Collett filed a suit for negligence against Middlesbrough FC rather than Smith based on the principle of vicarious liability. He held that the club is liable for the action of its players. The court accepted the appeal and held that the club is liable to pay damages to Collett. In the case of negligence, the defendant can rely on the defence of voluntary assumption of risk to protect himself. In Wooldridge v Sumner case, the court held that the defendant is not liable for negligence based on the principles of voluntary assumption of risk because the consent given by the claimant covers the loss suffered by him and the defendant did not breach his duty.

Application

In the present scenario, Daniel is required to prove the elements of negligence in order to hold Jack and Bronco liable for damages. As discussed above, the proximity in the relationship of parties decides whether a duty of care exists or not. In this case, both parties were competitors of each other, thus, they have a proximity relationship, and the duty of care exist as discussed in the case of Condon v Basi. Both Jack and Bronco owed a duty of care to Daniel, and the injury suffered by him was foreseeable as well. Section 10 of the National Rugby League’s Law clearly provides that tackling a player in such a way that his head or neck hits the ground first is against the law. The risk of harm was present, and both Jack and Bronco did not take appropriate actions to prevent the loss as discussed in Vaughan v Menlove. 

Furthermore, Daniel would not have suffered a serious injury, but for the negligence of Jack and Bronco and due to their breach of duty he suffered serious injury, thus, the injury was a direct result of actions of Jack and Bronco as per the “but-for” test given in Barnett v Chelsea & Kensington Hospital case. Thus, Daniel can successfully file a suit of negligence against Jack and Bronco. Furthermore, the principle of vicarious liability discussed in Benjamin Collett v Gary Smith & Middlesbrough Football and Athletics Club case which have similar facts applies to this case as well. Daniel can hold Parramatta Storms Rugby League Club liable for the actions of its player and demand damages. In their defence, Jack, Bronco and the Club can cite the defence of voluntary assumption as discussed in Wooldridge v Sumner case. However, Daniel never agreed to accept the risk of illegal move, thus, the defence of voluntary assumption of risk cannot apply to this case.

Conclusion

In conclusion, Daniel can file a suit of negligence against Jack, Bronco and the Club to demand damages because he suffered serious injury due to negligence of Jack and Bronco. Moreover, the defence of voluntary assumption of risk cannot apply to this case

2.Issue

The key issue is whether Harry, Zara and Hilary can file a suit of negligence to recover damages?

Rule

The principle of negligent misrepresentation provides that a person is liable if he made a careless representation without having a reasonable base to believe that that the statement is true. Generally, the common law provides that a suit for negligence cannot be filed by parties in case they suffered an economic loss as given in Spartan Steel & Alloys Ltd v Martin. However, a suit can be filed in case the economic loss is caused due to negligence misrepresentation. The concept was introduced in the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd. In this case, the claimant seeks advice from the defendant, and due to the default of the defendant, the claimant suffered economic loss. It was held by the court that the defendant is liable under negligent misrepresentation since the claimant makes the reliance over his advice, and he owed a duty of care. 

Application

In the present scenario, Steve and George did not have any basis to claim that investing in Sydney Real State is a good idea for investment. They also failed to inform Harry that there is the possibility of rise of tax rates in the nearby area. Harry, Zara and Hilary made the investment based on the advice of George and Steve. As discussed in Hedley Byrne & Co Ltd v Heller & Partners Ltd case, the reliance was made by the parties on the advice of Steve and George, thus, the case of negligent misrepresentation can be filed. Harry, Zara and Hilary suffered economic loss due to the advice of Steve and George, and Hilary suffered from clinical depression.

As per section 5 of the Civil Liability Act, 2002, parties can file a suit for damages which are caused due to personal injury and economic loss. A duty of care was present due to the proximity of relationship between the parties. Moreover, the risk was foreseeable. The loss suffered by the parties is directly related to the negligent misrepresentation of Steve and George. Thus, a suit for negligent misrepresentation can be filed by the parties against Steve and George to recover damages. 

Conclusion

In conclusion, Harry, Zara and Hilary can file a suit for negligent misrepresentation against Steve and George to claim damages for the economic loss suffered by them. Hilary can also file a suit for damages for the mental injury suffered by her. 

Bibliography

Gergen, M, ‘Negligent Misrepresentation As Contract’ (2013) 101 Cal. L. Rev.

Goldring, J, ‘Civil Liability Law Reform In Australia : The "King Of Torts" Is Dead’ (2005) 10(3) Uniform Law Review - Revue de droit uniforme

Harvey, B and Marston J, Cases And Commentary On Tort (Oxford Univ. Press, 2009)

Klement, A and Procaccia Y, ‘An Economic Analysis Of Reliance In Market Fraud And Negligent Misrepresentation’ [2013] SSRN Electronic Journal

Sappideen, C, Vines P and Watson P, Torts (Thomson Reuters (Professional) Australia Pty Limited, 2016)

Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428

Benjamin Collett v Gary Smith & Middlesbrough Football and Athletics Club [2008] EWHC 1962 (QB)

Condon v Basi [1985] 1 WLR 866

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

Spartan Steel & Alloys Ltd v Martin [1972] 3 WLR 502

Vaughan v Menlove [1837] 132 ER 490

Wooldridge v Sumner [1963] 2 QB 43

Legislations

Civil Liability Act, 2002

Common law – Tort of Negligence

Others

Austlii, CIVIL LIABILITY ACT 2002 (2018) Austlii <https://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/cla2002161/