Another facts that could be argued is that the rational of stripping the fiduciary of its unauthorized property. On the off chance that the property imparting gathering is not endured any loss, the inquiry emerge here is the reason that the organization have propitiatory rights when they endured no misfortune. Wouldn’t it be more fair and equitable if the employee is ordered to pay the state instead of the principal? The last factor that was arises is that what was the loss in the Reid’s case. It can be arguably said that the loss of confidence on the administration of justice.
Firstly, the plaintiff must prove that the defendant owed the plaintiff a duty of care. What is duty of care in this context? It is the responsibility to avoid careless actions that could cause harm to one or more persons. Secondly, the plaintiff bears the onus to prove that the defendant failed to succumb to the proper standard of care that a reasonable person would have provided in a similar situation. Standard of care is a way of measuring how much care one person owes another.
Before moving further, it is important to understand the term ‘negligence’ with reference to tortious liability. “Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury
Scope of liability is divided into two parts; foreseeability, which excludes liability for harms that were sufficiently unforeseeable at the time of the tortious act that were not among the risks that made the defendant negligent; and superseding cause, which is an intervening act that relieves the defendant of liability. The contributory negligence is the most common defense to negligence. It’s when the plaintiff fails to exercise reasonable care for their own protection. This defense results in preventing the plaintiff from recovering any type of reward. Comparative negligence allows the damages to be divided between both the plaintiff and the defendant to their degree of
This stage is important because the employer will only be liable if the employee is ‘acting within the course of his employment’ when the tort is committed. It is, therefore, essential to consider what is meant by this in law. If the employee is outside the scope of his or her employment, the injured person has no choice but to sue the employee who may not be in a financial position to pay
“Breach of duty in negligence liability may be found to exist where the defendant fails to meet the standard of care required by law. Once it has been established that the defendant owed the claimant a duty of care, the claimant must also demonstrate that the defendant was in breach of duty. The test of breach of duty is generally objective, however, there may be slight variations to this”. While using the objective test also referred to as the reasonable man test to determine negligence in breach of duty, the court will decide if the defendant fell below the standard of the reasonable man. The standard of care expected from this hypothetical character is objective; not taking into account the characteristics or weaknesses of the defendant
MacKenna J identified three essential conditions to question if the terms were consistent to a contract of service. Addressing these conditions, substitution clauses removes the personal element and thus would be inconsistent with a contract of service. In addition, Tanton a personal service was an irreducible minimum which substitution clauses removed, taking a contractual approach. However, these decisions are criticized as it gives employers the ability in ‘avoiding legal responsibilities’ and how employers enter clauses to avoid liabilities. In addition, Pitt argues that if the question had been reversed; the courts would have found nothing inconsistent a contract of service and the right to delegate was
The requirements for an actionable misrepresentation are that; the misrepresentation must be a statement of existing fact or past events, and not a statement of opinion; it must induce a person to enter into the contract; it must be material in that it relates to a matter which would influence a reasonable person’s decision whether to enter into the contract. (Misrepresentation Act, Cap 390) There are three types of misrepresentation: The first is innocent misrepresentation - when the representor had reasonable grounds for believing that his or her false statement was true. The second is negligent misrepresentation - a representation made carelessly or without reasonable grounds for believing its truth. The third is fraudulent misrepresentation - where a false representation has been made knowingly, or without belief in its truth, or recklessly as to its truth. The affect of a finding of misrepresentation, regardless of whether it is innocent, negligent or fraudulent, is that the contract is voidable, and the innocent party may rescind the contract, which generally means terminating the contract and returning the parties to the position they were before the
II. Inducement. The misrepresentation must have induced the representee to enter into the contract therefore there must be casual connection between the making of misrepresentation and the conclusion of the contract, but no assistance will be granted if the representee knew that the statement was false and failed to
The first type is “neutral” view. In this the auditor neither assumes that management is dishonest nor assumes unquestioned honesty, under (AU 230.09) Second view is "presumptive doubt” view because of the quality of fraud, the auditor’s exercise of professional skepticism is important when considering the risk of material misstatement due to fraud. In this the auditor should conduct the engagement with a mindset that recognizes the possibility that a material misstatement due to fraud could be present, regardless of any past experience with the entity and regardless of the auditor’s belief about management’s honesty and integrity. Furthermore, professional skepticism requires an ongoing questioning of whether the information and evidence obtained suggests that a material misstatement due to fraud has occurred (AU 316.13) In addition to, most academic literature adopts this view of presumptive doubt, for example, Shaub (1996) equates skepticism with suspicion and as the opposite of trust. Hogarth and Einhorn (1992) defines a skeptic as being someone who is highly sensitive to negative evidence but ignores positive evidence, and McMillan and White (1993) view an auditor as skeptical if the auditor is more sensitive to evidence that reduces the risk of failing to detect errors in the client’s financial