Law Professional Negligence free essay sample

Alf has a direct relationship with the employer as he is one of the employees of Skimpy PLC and the employer owes him a duty of care. However, the company hasn’t guarded the machinery which should be one of their primary duties as it was seen in the case Close v Steel Co of Wales where all dangerous parts of machinery should be securely fenced according to the section 14 Factories Act 1961. All workers will need safety at work and the Health and Safety at work Act 1974 will ensure all employees are safe within their workplace. Breach of these duties will constitute in a criminal case as it is in Alf’s case. On the other hand this event could also be a civil case as Alf can sue Skimpy PLC for compensation for his personal injury. Alf will have to prove that the company caused the injury negligently or without taking reasonable care to avoid injuring others. Alf will also have to prove a duty of care was owed, breach of duty and damaged caused by the breach, then only will the law allow compensation. The company will be against giving compensation as they can protect themselves by saying that Alf removed the guard â€Å"contrary to instructions†. In this case Alf will clearly be affected by contributory negligence as he had removed the guard to make the job quicker causing him injury. Therefore it will be very difficult for Alf to receive compensation as it was seen in the case Close v Steel Co of Wales where Mr Close didn’t receive any compensation for his injury. The other case that could arise is that Skimpy PLC could claim that Hitech was the reason why Alf got injured as they had guaranteed the guard couldn’t be removed. The manufacturer of the machine will owe a duty of care to Alf as it was seen in the most famous case of the English law Donughue v Stevenson case where the manufacturer owed a duty of care to Mrs Donughue and she got paid compensation. This will be a criminal case as Hitech has committed a wrong against Alf and Skimpy PLC. The case that could arise from Ethel’s event could be the Sex Discrimination Act 1975 as she was refused to work because ‘it was a not a woman’s job’. The reason why I say it could be a Sex Discrimination Act as this act deals with the grounds of a persons gender, or on the grounds that a person is married. In terms of ‘direct discrimination’ the employer clearly discriminates the employee on the grounds of gender as he treats her less favourably than he would treat other men. The employer clearly goes against the Equality Act 2010 as a clear opportunity is not given to Ethel. There is a direct conflict between individuals within the company as Ethel was refused to do the job, therefore clearly being a civil case. i)The civil case that could arise from Alf’s event could be heard in the county court or in the high court. However in Alf’s case it will be heard in the county court rather then the high court as the claim for personal injury will be a sufficiently small sum of money as Alf will be affected by contributory negligence which will reduce the damages payable to him as he went against instructions. The other reason why its heard in the county court is because it is very rare employment cases are heard in the high court as they don’t have full range of complexity or value to warrant issue in the high court. The criminal case from Alf’s event could be heard in the magistrate court or crown court. In this case it will be heard in the magistrate’s court rather then the crown court as most summary offences are carried out in the magistrate court as this is a less criminal offence. It will be heard in the magistrate court as they carry out minor offences as it is in Alf’s event and impose limited sentences. Whereas more indictable offences would be heard in the crown court such as murder and rape. It is also a fact that 97% of the cases are disposed in the magistrates court. In Ethel’s event the employment tribunal will be in charge as they have rights to hear employment cases and appeals and they deal with legal disputes in the workplace. This will be heard in the employment tribunal rather then the civil court as Ethel has no claim for personal injury. There will be a dispute as she was faced with ‘direct discrimination’ as she could stand in Alf’s job. 2) The tort law is when a person is entitled to damage compensation if there claim is â€Å"part of a contract† obligation. As being an accountant is a professional job all accountants will have to show a degree of care as a professional would do. If an accountant fails to do this they will amount to a breach of duty. To establish the tort of negligence has been committed the claimant will have to prove the accountant owes a duty of care, breach of duty and the damage caused by the breach for the advice given to them. It was clear from the most famous case of the English law â€Å"snail in the ginger beer† that we owe a duty of care to everyone. Donughue v Stevenson established the â€Å"neighbour test† where we must take care to avoid acts and omissions. The relationship between the claimant and the defendant will be important because it will show how involved the client is and if they are caused by personal injury it will be foreseeable. As it was seen in the case Bourhill v Young were Bourhill was a witness of a pool of blood which resulted in her miscarriage. As she wasn’t â€Å"directly involved† she was not owed a duty of care. In consequence if a person overhead negligent advice being given by the accountant to one of his clients the law can’t make an accountant liable to pay compensation. This will be because the accountant doesn’t owe a duty to strangers and the person wasn’t directly involved. However, actual damages to a third party will be liable if the accountant has knowledge that a third party will use the financial statements. One of the most important cases to accountants and other professionals is Hedley Byrne and Co v Heller. As it was seen in this case Heller wasn’t liable as an exclusion clause â€Å"without responsibility† was set out as a result the liability was limited and prevented the duty of care from arising. Accountants will therefore have to be very careful when giving negligent advice which faces financial loss as this will allow customers to claim compensation for that particular loss. This was evident when the House of Lords said â€Å"you can recover a financial loss from a negligent mistake†. Consequently, accountants will have to be alert as they will be liable to pay compensation even if advice was given without payment. This is because the accountant is making an oral agreement knowing the client will use the advice. Liability can arise when a special relationship exist between parties. Caparo Industries v Dickman shows us that the auditors didn’t owe â€Å"no duty of care to the public† or â€Å"to the people who want to buy more shares†. The special relationship will arise when the accountants give advice to their clients and get paid for it. For this reason they will be accountable to pay compensation as the accountant will have â€Å"contractual liability† with their clients. If accountants choose to give facts during a negligent statement the client can then bring an action of negligent misrepresentation. This was conspicuous in the case Esso Petroleum v Mardon where Esso was under a duty to manage the sales with reasonable care so they were accurate. Thus accountants will have to give facts with a great degree of care. However accountants can defend themselves if the claimant succeeded in proving a duty of care and breach of duty was owed. There is two ways in which the accountant will reduce the compensation through Volenti Non Fit Injuria and Contributory negligence. The accountant will have to prove the client accepted the risk that was given with the negligent advice. In the case Morris v Murray the claimant knew the risk of flying and â€Å"had waived his rights to damages†. In that event an accountant will not owe compensation to any of his clients that he meets at social arrangements and will not be liable for the negligent advice. In conclusion, professionals such as accountants will have to ensure that professional standards don’t fall short and if they do and a client suffers a loss as a consequence the law could make an accountant liable to pay compensation.