This is a solution of Law of Contract Assignment part 4 in which we discuss a brief analysis on the terms of the contracts, their meaning, effect and remedies.
Law of Contract Assignment part 4
The present task has undertaken an attempt to analyse the law of negligence especially when professional quality advice is furnished by the parties. The Task has tried to contrast the liabilities in tort and contract before understanding the law behind negligence.The major issue that is analysed after understanding the case scenario is whether Schneur can recover his losses from Patricia from providing wrong advice?
Liability in Negligence Tort and Contract – A brief contrast
In Tort law, there are two important laws that prevail in United Kingdom, that is, law of contract and law of tort. The same are law of contract (a contract deals with when parties are in relationship by forming an agreement and abide by its terms) and the law of negligence (where the parties are in relationship under the duty of law). Both the laws are of civil nature but are very distinct. In the law of contract the parties are in contractual relationship which is not in tort law. Also, the liability in contract is strict and pre-determined whereas in tort the liability is fault based and is not pre-determined by the parties. Thus, though both the laws are very important but are distinct.
The law of Negligence – Meaning and essentials
In tort law, one of the areas of law that is very important is the law of negligence by professionals by furnishing advice. Normally, a person is considered to be negligent when he does not cater his duty of care which is imposed upon him by law and because of such violation of duty of care loss is caused to Plaintiff. A plaintiff is considered to be a person who in proximate relationship with the defendant, that is, a person upon whom the effects of defendant will directly fall. Thus, in order to bring claim of negligent advice by professional, the main essential to prove are:
i.Duty of care – Duty of care means that the defendant must undertake his actions in such a manner so that no loss is caused to any person because of his actions (Caparo Industries V Dickman (1990). That the professional is imposed with a duty of care to provide the advice in such manner so that no loss is caused by a person who is relying upon his advice. Due care and skill must be applied by a professional before any advice is furnished by him (Bolam v Friern Hospital Management Committee (1957 & Midland Bank Trust Co. v Hett, Stubbs and Kemp (1979). The professional must be aware that the plaintiff is relying on is advice and thus is his neighbour and must adequate provide advice so as to mitigate any loss. The loss which may be imposed is reasonably foreseeable. In George Hawkins v Chrysler (U.K.) and Burne Associates (1986) it was submitted that the professional must provide as far as possible adequate advice especially in exceptional circumstances, that is, when he is aware that his advice will be relied upon(Morgan Crucible Co plc v Hill Samuel Bank Ltd (1991). (Powell 2016) Once duty of care is established, the next important elements are breach of duty of care.
ii.Breach of duty of care – The duty of care which is not performed as per the level of standard of care which is required then there is breach of duty of care. When the professional development who is furnishing expert advice provides the advice but did not match the level of care and standard that is required while furnishing such advice, then the duty is considered to be violated. In Clack v Wrigleys Solicitors LLP (2013) the courts held that if the professional does not cater all due care and skill that is required in a given situation then such defendant or professional can be sued under the law of negligence and must pay compensation for the loss so suffered by the plaintiff (Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964). (Salter 2013) After the breach of duty is also established against the defendant, then, lastly damages must also be suffered by the claimant.
iii.Damage – Damages is the consequences that follow from the breach of duty of care. Once the duty of care is violated by the professional while furnishing advice, then loss must be caused to the plaintiff who is relying on the advice so furnished by the professional. The loss so caused must not be secluded and must be easily predictable by the professional while giving advice and the loss so caused to the plaintiff must be the direct result of the wrong advice so furnished by the professional. In Lennon v Commissioner of the Metropolis (2004), that when a claimant is relying on the expert knowledge of the professional and suffers losses because of such advice, then, damages are sustained by him because of professional negligence and the defendant has to compensate for the loss so suffered. (Pearson 2016) Damage in all scenarios must not be remote in order to cover under negligence (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961).When all the essentials of the law of negligence are proved, then the professional can be held liable for acting negligently and causing harm to the plaintiff.
A defendant can protect himself from the consequences under the law of negligence provided the liability is excluded by the defendant under the shed of defences:
i.One of such act is when specific exclusion clause is made while furnishing advice and the exclusion clause is brought within the knowledge of the plaintiff prior furnishing advice. (RPC 2016)
ii.When the plaintiff has suffered loss because of his own risk and is called defence of volenti non fit injuria and is held in ICI v Shatwell (1953).
iii.When the plaintiff and defendant both have contributed to the loss of plaintiff then the liability of the defendant is reduced proportionality and the defence is called contributory negligence and is held in Lumsden v London Trustees Savings Bank (1971).
iv.Ex turpi causa exist when the plaintiff cannot seek remedy as he is himself involved in illegal actions. Now, the law is applied to the facts.
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