Occupiers Liability in Retail Industry †Free Samples to Students

Question: Discuss about the Occupiers Liability in Retail Industry. Answer: Introduction The law of tort is a common law principle which aims at making good to the loss suffered by the aggrieved party because of the actions (inactions) of the wrongdoer. The wrongdoer is legally duty bound to act or not to act in a certain manner which when not followed results in causing harm or damage to the aggrieved and thus the wrongdoer is legally compelled to make good the loss so suffered. The law of tort is a bundle of laws, such as, negligence, misrepresentation, defamation, trespass, etc. However, in the present essay an attempt is made to understand the legal components of negligence and misrepresentation in real life business situations. A brief analysis is done on the factors that lead to negligence and misrepresentation, their consequences, defense available, how a person can take an action against negligence or misrepresentation and what is the role of the public authorities to protect the people from such tortuous acts. An attempt is made to study torts as they apply to business situations, in particular the torts of negligence and misrepresentation. Negligence The legal components In the law of negligence, if any customer suffers injuries on the premises of the retailer then such retailer must compensate for such losses under the law of negligence and is established in Australian Safeway Stores v Zaluzna (1987). The law emphasis that, every retailer must comply with his duty so as to avoid any kind of negligence. But, it is first important to understand the main legal components of negligence which the plaintiff must prove against the retailer. (Sadler, 2002) That the Retailer is under the legal duty to provide care to the plaintiff In 1932, a business situation arose in a leading case of Donoghue v Stevenson, wherein, the manufacture was held to be under duty to provide products which are safe to his consumers. The manufacture is duty bound against his neighbors (who are reasonable foreseeable and sharing proximate relationship with him) and this duty must be performed in all manners. Likewise, in 1999, in Perre v Apand, because of the supply of defective seeds by the defendant to the neighbors of the plaintiff, a five year ban was imposed not on the neighbors but to all the farmers who are within 20Km from the farm of the neighbors. The plaintiff action against the defendant was held valid as the defendant owns a duty of care against entire plaintiff who he can reasonably foresee. Thus, every business must carry out his acts or inactions with all due care so that no injury is caused to any of his neighbors. That the retailer is not able to comply with the said duty, that is, there is breach of duty of care Every business or retailer must ascertain the risk involve, precautions that are practically required; gravity of risk and impact; the importance of the conduct of the defendant. If the duty undertaken by the retailer fall short of the standard that is required then there is breach of duty. Blyth v Birmingham Waterworks Co. (1856) was a business situation wherein because of failure of plug installed by defendant, loss is caused to the plaintiff (flood incurred causing damage to the house of the plaintiff). The court held that the defendant has not complied with the required standard of care and there is breach. That because of the breach of duty there is damage that is caused to the plaintiff The Plaintiff must suffer damage that must because of the act or inactions of the defendant (causation) and the damage so incurred is not remote. Overseas Tankships (UK) v Miller SS Co [1967] is a business situation wherein the loss that is caused was too remote and thus the defendant was not held negligent. Misrepresentation - The legal components When a false statement is made by one party to another with the aim to induce the other party to establish a contract with the party that is making the statement then such an act is an act of misrepresentation provided the statement so made is not made part of the contract, that is, the term of the contract. The main legal components that are required to establish misrepresentation are: (Misrepresentation, 2017) A statement of fact is made by one party (defaulting party) to another (aggrieved party). Statements of opinion, law, or future intention may at times be considered as the statement of fact. The statement of fact must be relied on by the aggrieved party and is the basis for forming of contract with the defaulting party; The statement must not be silence in nature and must be positive in nature; Normally, when any statement is found to be misrepresented then the aggrieved party refer his case under misleading and deceptive conduct. Many a times misrepresentations even incur when advice or directions are provided to customers, or even just members of the public. In such situations it is very important that adequate care must be carried on. In 1964, in Hedley Byrne Co Ltd v Heller Partners Ltd, the first bank provided a creditworthiness report of one of its client to another bank. The second bank requires the report before granting loan to the said client. The report provided by the bank was misrepresented. It is a real life business situation where in a statement of fact was provided by one party knowing that the other party will rely on the same before making any decision. Thus, it was found to be a clear case of misrepresentation and the contract that was established was found to be based on misrepresentation. (Sadler, 2002) Also, when there is a case of quality and safety of goods and services supplied by a retailer/prover, then, such retailer must not make any statement of fact which is false and which is relied on by the other party prior establishing a contract with such retailer. In a real business situation, Butcher v Lachlan Elder Realty Pty Limited (2004), the plaintiff was buying a house through the defendant which has made false statements of facts regarding such house. The act was a clear case of misrepresentation and thus it is the duty of the defendant under law to make such statements of fact which are true and not deceptive or misleading. Thus, these are the two tort laws that are normally found to be applicable in business situations. However, it is now important to understand as what actions can be undertaken by the aggrieved once the elements of negligence or misrepresentation are framed against the defendant. Actions to be taken Once the defendant is found to be negligent or incurred misrepresentation against the plaintiff there the plaintiff is eligible to take action against such defaulters. The plaintiff can be either a consumer, member of the public, or any other party who is affected by the actions of the business. Such persons might take action against the business. When a plaintiff is aggrieved because of the negligent action of the retailer or the manufacture then such plaintiff can take an action under common law for the recovery of damages or injuries sustained by him because of the use of the defective/harmful goods (The Law Hand Book, 2017). The claims dealing with negligence are usually raised by the plaintiff either in Supreme Court or the County Court; however, it is the Magistrate Court that issues the same. The case can be initiated by making a complaint or with the help of a writ. (The Law HandBook, 2017) Once a misrepresentation is established against the defendant, then the plaintiff is permitted to take civil action against such defaulter. Once an action is initiated by the plaintiff against the defendant, then, it is now important to understand the consequences that might by faced by the defendant. Once a business is found to be negligent or making misrepresentation in his actions, then there are few consequences that can be faced by such defendant. The injured or disgruntled client has suffered some loss and the loss can be claimed from the defaulter. When the defendant is found to be negligent in his actions then the main consequences that are normally faced by him are: (The Law Hand Book, 2017) Special damages- the out of pocket expenses falls under special damages category. For example, if because of the negligent action of the retailer some medical problem is faced the plaintiff then the ambulance charges, loss of earning, incidental expenses can be recovered from the defendant. General damages The loss caused because of pain, suffering, future earnings, falls under general damages. Misrepresentation A misrepresentation is an offence under the competition and Consumer Act 2010. As per section 151 of the Act, maximum penalty that can be faced by a body corporate is $1,100,000 and for individual is $220,000. In a real business situation of ACCC v Cadbury Schweppes Pty Ltd[2004], a misleading statement is made that fruit extracts are contained which in reality it does not. Thus, the defendant faced penalties under law. If any retailer for the promotion of goods or services is making any kind of misrepresentation then a notice can be serviced against him by the Australian Competition and Consumer Commission and can ask for information which substantiate the claims. Further, the aggrieved party has every right to rescind the contract which is based on misrepresentation. Once the consequences are established against the defendant, the law has still provided few remedies to such defendant and there are defenses that can be availed by the defendant in order to protect his interest. Thus, the defenses that can be availed in cases of negligence and misrepresentation are analyzed herein under. When a plaintiff claims to be injured because of the negligent action of the defendant then there are two main defenses that are normally sought by such aggrieved. They are, firstly, voleti non fit injuria, which signifies that the loss that is caused to the consumer is not because of the negligent action of the retailer but the consumer has voluntary assumed the risk confining that the same will cause some kind of harm to him; secondly, contributory negligence, which implies that the loss that is caused to the consumer is because of the negligent action if the retailer and the consumer both and thus the retailer can mitigate his liability proportionality. (Sadler, 2002) Misrepresentation Once a retailer, manufacturer, etc are found to be making misrepresented statements then the action of misrepresentation can be filed alginate them. However, there are few defenses that can be availed by them. The same are: When the defendant while making the statements is of the belief that the said statement is true; That the defendant has made all reasonable efforts so that the plaintiff does not rely on the statement of made on behalf of the defendant or by his employees; That the misrepresentation is not made by the defendant; Under these circumstances a defendant can protect himself. Now it is important to understand whether there is any role for statutory or public authorities who should be protecting the interests of Australian (or even non Australian) interests or parties. It is not individuals, retails manufacturers etc who are alone imposed with duty of care to avoid any kind of negligence or a duty to provide statement of facts that are true in order to avoid representation, rather, the public authorities are also casted with the legal duty to protect the interests of Australian (or even non Australian) interests or parties. In 1995, in Councilof theShireofSutherland v Heyman, the council was held negligent in its actions when it failed to inspect the building resulting in causing harm to the defendant. Thus, the public authorities also play a significant role to avoid any kind of tortuous wrong in the interest of parties. Conclusion Thus, though negligence and misrepresentation are the two important laws that are relevant in business situations, but, there are various other kids of torts that must also be considered, such as, trespass, nuisance, passing off, etc. Thus, the law of tort plays a significant role in business situations and the legal components of such torts must be analyzed adequately in order to avoid any kind of hardship. Reference List P Sadler (2002) Occupiers Liability in the Retail Industry , Legal Issues in Business, The Retail Industry - Volume 4, 2002 Trindade and Cane (1999) The Law of Torts in Australia , Melbourne, 436. ACCC v Cadbury Schweppes Pty Ltd[2004]. Australian Safeway Stores v Zaluzna (1987). Blyth v Birmingham Waterworks Co. (1856). Butcher v Lachlan Elder Realty Pty Limited (2004). Councilof theShireofSutherland v Heyman (1995). Donoghue v Stevenson [1932]. Hedley Byrne Co Ltd v Heller Partners Ltd [1964]. Overseas Tankships (UK) v Miller SS Co [1967]. Perre v Apand (1999). Misrepresentation (2017) (Online). Available at: https://www.unistudyguides.com/wiki/Misrepresentation. Accessed on 31st August 2017. The Law HandBook (2017) Actions for negligence (Online). Available at: https://www.lawhandbook.sa.gov.au/ch10s02s09.php. Accessed on 31st August 2017. The Law HandBook (2017) Negligence, liability and damages (Online). Available at: https://www.lawhandbook.org.au/10_01_01_negligence_liability_and_damages/. Accessed on 31st August 2017. The Law HandBook (2017) False or misleading representation (Online). Available at: https://www.lawhandbook.sa.gov.au/ch10s03s03s03.php. Accessed on 31st August 2017.