Intro To Business Law N1072
University of Sussex
Word count: 1099
December 4, 2013
Critically evaluate, in relation to the common law duty of care, the liability of employers for references. How, if at all, does the liability of a university (such as the University of Sussex) differ regarding references given to potential employers in respect of current (or former) students.
Employers have a certain degree of liability when making statements in a former employee’s reference. Employees and employers have a duty of care, to provide valid descriptions of an individual’s quality and potential as a former employee, and thus a reasonable reference is, truthful and fair. It is up to employers to thus avoid inaccurate …show more content…
It was decided that if the “representor gave information-or advice which was negligent he would be liable for any pecuniary or personal damage-caused”5. However the appeal was dismissed due to the fact that with “the absence of a contract or fiduciary relationship” the defendant that used a disclaimer would owe no duty of care.6 The case was significant in that claims on negligent misstatement could work if; there is a special affiliation among parties, the information provided by a party has a voluntary assumed risk, the plaintiff has to deem the information reliable, and finally the reliability of the information must be applicable.
In Caparo Industries plc v Dickman7, it was determined that courts had to test the duty by “whether the damage was reasonably foreseeable, whether there was a relationship of proximity between claimant and defendant, and whether it is just and reasonable to impose a duty.”8 If so, then a duty of care could arise.
Spring v Guardian Assurance plc9 is key for this discussion. The claimant “won the case on grounds of the defendant’s negligence”.10 The defendant owed the claimant a duty of care in terms of providing a reference. However, there was a partial split in decision between the judges on the defendant’s rejection of liability towards the reference. The Hedley Byrne fundamentals of proximity argued the case focused on
Click here to unlock this and over one million essaysGet Access
The Civil Liabilities Act 2002 defines negligence as a failure on the part of the defendant which results in the harm of the plaintiff which could have been prevented by taking reasonable care. The breach of duty must be foreseeable, Sullivan v Moody. The risk must be not insignificant, and a reasonable person under similar circumstances would have taken precaution against the harm. In this case
As a starting note, any mention of concurrent liability should be assumed to mean concurrently liability in tort and contract. Traditionally the distinction between contract and tort was that contract concerns the improvement of the claimant 's position, whereas tort is concerned with dealing with their position worsening. There has been dispute around concurrent liability and its ambiguity has led to varying decision in cases and statute making as Taylor puts it “the basis of concurrent liability uncertain”. This essay will argue Tort has and is extending itself beyond its traditional role due to judges presumption of morality leading to the unclear concurrent liability we see today. Whilst this concurrent liability shows some
* Where both the parties seem to have been negligent, it is important to determine who is more at fault and for this purpose we need to use the ‘but for’ test as in the case of Cork v Kirby Maclean  2 ALL ER 402.
In the case of Charlotte and Sam, sections 29-33 of the Civil Liability Act 2002 (CLA) can be used to discover whether Sam owed a duty of care to Charlotte. Under S32 the proximity to the event, the relationship of the plaintiff, a sudden shock, and the reasonable foreseeability of the harm were included as circumstances of the case that the defendant could be liable for. The case of Tame v NSW; Annetts v Australian Stations Pty Ltd (2002) supports section 32 of the CLA in establishing that a duty of care is
Concerns have arisen of a possible lawsuit involving an area of law known as negligence and liability. This memo outlines the principles of this area of law in order to be properly prepared should the firm face any legal consequences. It aims to illustrate under what circumstances can the firm be affected with potential legal action in this area.
For example, Cole v Sth Tweed Heads Rugby Club (2004) 217 CLR 469, a case involving licensed premises serving alcohol and the duty of care that they owed to a patron to prevent her from injuring herself due to its effects. Peter’s parents could not be held responsible because George did this deliberately hence their duty of care becomes limited at such a point. The court will now establish the degree of harm experienced by the plaintiff and the responsibility of both the plaintiff and the defendant towards the incident and convert it to a monetary compensation that the defendant will have to
Defective products, which cause damage, can give rise to liability and this traditionally arose under the common law. However, the common law approach places the burden on the claimant to establish that the defendant owes a duty to him, was in breach of that duty and that they suffered damages as a result of that breach, and it may not always be straightforward to establish causation,
In these cases liability is joint as well as several. The other common example of vicarious liability is the liability of an employer for the torts of his employees committed in the course of employment. It is not necessary in such circumstances for the employer to have breached any duty that was owed to the injured party, and therefore it operates as strict or no-fault liability. It is possible that the injured party could be either an employee or a stranger, and the employer can be held vicariously liable in both situations. The most important element to establishing a case for vicarious liability is that the wrongdoer be acting as a servant or employee, and that the wrong done be connected to the employees course of employment. Vicarious liability can only be imposed if it is proved that the employee was acting ³in the course of employment. This criterion is essential, and requires a clear connection between the employment duties and the employee’s acts complained of. A reason for vicarious responsibility of employers is that employers usually are, while their servants usually are not, financially capable of the burden of civil liability. The theory partly owes its existence to the anxiety of the injured person to find a solvent defendant. Again it is said that the employer must be made liable because it is he ‘who has set the whole thing in motion.’
It has long been established that a tort occurs “where there is breach of a general duty fixed by civil law”. The branch of law we know as negligence has been in development since the establishment of a duty of care for one’s neighbour in Donoghue v Stevenson . In that case, Lord Atkin laid down general principles whereby a person would owe another a duty of care, the most important being “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour” . This principle has been refined on a number of occasions and the current approach for establishing a duty of care is typified in Caparo Industries plc v Dickman .
Despite the general principle excluding liability for omissions, liability may arise in certain exceptional circumstances. Although these situations where a duty may arise on the basis of an omission are difficult to classify, what is usually required in all of them is some element of proximity. This may be created in a number of situations which will now be looked at. In addition, in such cases, the factors for establishing a duty of care (forseeability, proximity, fair, just and reasonable) laid down in Caparo will also need to be looked at.
An insurance contract has been defined by Ivamy (1996) in “as a contract whereby one person, called the Insurer, undertakes, in return for the agreed consideration, called the Premium, to pay to another person, called the [Insured], a sum of money, or its equivalent upon the happening of a specified event.” This basic premise explains the foundation and reasoning as to why insurance contracts exist. Within insurance contracts are distinguished responsibilities that the insured and insurer need to follow in order to uphold the integrity of the Insurance Law Reform Act 1977. This Act however is arguably poorly constructed for present-day cases with particular vagueness surrounding the insured’s duty of disclosure and defining what a reasonable insured would define to be material. This report will define the duty of disclosure, identify current issues and criticism of the current duty of disclosure test, while making reference to the important judgment in the case of State Insurance v McHale (1992) and lastly assess the benefits and drawbacks of moving to a disclosure test which takes account of what a reasonable insured would believe is material.
“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the
In this assignment I will analyse the tort law and whether the UK should deconstruct the law of tort and introduce a no-fault compensation sc heme.