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Tort law assignment. Brian fell against the standard of care a reasonable man would take as he advised John to buy the shares to be on a winner

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Introduction

Tort law assignment Advise John as to claims that he may have against Brian in tort. For John to make a claim against Brian in tort the following three elements must be proved: whether Brian owes a duty of care to John, if that duty was breached and if the breach caused the damage. Liability for negligent misstatements causing pure economic loss have the usual requirements of duty, breach and damages but special treatment is necessary as people are less careful in what they say than in what they do on social and informal occasions. Lord Pierce in Hedley Byrne stated: ?word are more volatile than deeds, they travel faster and are used without being expended? To establish the difference between ?pure economic loss? and economic loss which is consequent upon physical damage to property. This was defined in Spartan Steel v Martin 1973, where the loss was foreseeable but Lord Denning held a line must be drawn, and that the loss was better borne by the insures than by the defendants alone. The Misrepresentation Act 1967 states where there is a fiduciary relationship (a person to whom property or power is entrusted for the benefit of another) for example between a solicitor and a client liability arises here in contract and tort. There is no need to prove a duty of care exists. Brian who is a part qualified accountant advised John about the shares, but there was no contract involved so he wouldn?t be liable under contract and tort. ...read more.

Middle

Therefore Brian owes John a duty of care and under Hedley Byrne the last guidline has been proven. However, there has been limitations on these three guidelines as in Caparo V Dickman 1990. The main principle being that the reliance is reasonably foreseeable to the defendant. For a duty of care to exist under Caparo the following must be established: whether the consequences were reasonably foreseeable, if there is a relationship of proximity between the parties, and if it?s fair just and reasonable to impose a duty. For the first part of establishing a duty of care it must be proved that the defendant?s act were reasonably foreseeable. In Kent v Griffiths 2000 it was reasonably foreseeable that the claimant would suffer harm from the failure of the ambulance to arrive. In Bourhill v Young 1943 the motorcyclist did not owe a duty of care as it was not reasonably foreseen that the claimant would be affected by his negligent driving. Brian owes John a duty of care as it is reasonably foreseeable that there is risk involved if Brian advises John to buy shares in Brightwater Ltd. Is there a relationship of proximity between the two parties? This can be through a legal relationship or physical closeness. In Osman v Ferguson 1993 there was a sufficient close relationship between the parties compared to Hill v Chief Constable of South Yorkshire 1998 where the relationship between the police and the victim was not sufficiently close. There is a relationship between Brian and John of friends, so there is a sufficiently close relationship between them. ...read more.

Conclusion

Specific rule apply to specific people so considerations will be made for different types of people. Mullin v Richards 1998 showed children can be held for negligence. Nettleship v Weston 1971 showed learners would be judged against the standard of a reasonable competent driver. The standard of care expected was that of a similarly qualified expert as in Bolam v Friern Hospital 1957. Therefore even though Brian was only a part qualified accountant, he still fell below the standard expected of a similarly qualified accountant, as he advise John wrongly about the shares and has breached his duty. Proof of breach ?res ipsa loquitar? fact speak for themselves rule. The claimant must show that the defendant was in control of the situation that caused the claimants injury and that it was cause by negligence. John can prove that Brian was the reason he lost all of his investment, because if it wasn?t for Brian advising him to buy the shares he wouldn?t have lost the money. Now that breach of duty has been proven, it must be proven that the damages suffered were caused by the breach of duty. This can be proved using the ?but for? rule as in Barnett v Chelsea and Kensington1969 where the claimant wouldn?t have suffered the damages ?but for? the defendants breach of duty. ?John wouldn?t have lost out on his investment ?but for? Brian advising him to buy the shares. If the ?but for? is proven but the damages are too remote from the defendant breach of duty then there is no liability as in Wagon Mound 1961. However John lost all his investment as the company went into liquidation so the damage is not remote. ...read more.

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