Free Law Essays - Negligent Misrepresentation Decision
This case involves the issue of the tort of negligence, and more precisely negligent misrepresentation.
In this situation, Alphonso relied on the statements made by his doctors in making his decision. Before any remedies (if any) can be considered, it is important to establish whether or not Blataslav and/or Dr Corinthian owed a duty of care to Alphonso, whether or not they had exercised the required standard of care and whether or not Alphono's losses were not too remote nor unforeseeable.
In Hedley Byrne v Heller, the House of Lords held that a person owed a duty of taking reasonable care when providing advice to a recipient where there was a special relationship between the two parties. In this case, there is clearly a special relationship: the relationship between a doctor and his or her patient. In particular, Blataslav and Dr Corinthian owed a duty to Alphonso in taking reasonable care as to avoid foreseeable injury. However, it is also necessary to establish that Alphonso had relied upon the information, and that such reliance was reasonable.
As he has stated, Alphonso would not have undergone the procedure had he been aware of the risks involved. It can, therefore, be reasonably deduced that he would rely upon such information as fact, and not a mere representation. Furthermore, he did not only consult his own doctor, he also consulted a specialist, indicating that he wanted to make an informed decision based on professional advice. Seeking a second opinion indicates that Alphonso took reasonable steps in forming his decision, reducing his apportion of responsibility. But was it reasonable for Alphonso to rely on this information?
In the relation to Blataslav, it can be argued that as he is not a specialist in the area, and most likely does not have sufficient knowledge of the procedure nor the consequences. It would not be reasonable to rely on his advice alone. In any case, Blataslav would have been making a representation based on what he knew and what he believed to be true. It is more likely Blataslav owed a duty to Alphonso to ensure that he sort the advice of a specialist, which would have been required anyway to perform the surgery.
The same cannot be said for Dr Corinthian. As he is a specialist in the area and has first-hand experience with the procedure, it is reasonable to assume that his advice was based on well-founded facts. As pointed out by hospital staff, it is a known statistic among doctors that 1 in 3 patients experience complications after undergoing the procedure, and 1 in 10 fail. As a specialist, Dr Corinthian should have been aware of the risks associated with the surgery. When Alphonso asked Dr Corinthian the risks involved in such a procedure, he gave the same reply as Blataslav.
Unfortunately, the ambiguity of Dr Corinthian's statement leaves room for interpretation. This indicates that Dr Corinthian did not perform the required standard of care when informing Alphonso. In other words, he did not answer his questions succinctly. It would also be likely to be a common practice that a doctor informs a patient of the common risks involved in a particular type of operation, without the patient necessarily asking.
Now that it has been established that Dr Corinthian owed a duty of care to Alphonso and did not perform the required standard of care, we must now consider whether or not Alphonso's injuries (and losses) were related closely enough to the surgery and that they were reasonably foreseeable. As previously mentioned, hospital staff were well aware of the possible complications involved. However, this does not tell us if Alphonso had an abnormal or unforeseeable reaction due to the fail of the procedure.
He did follow the recommended procedures, which suggests that he did not add to the risk or the severity of the complication. In fact, it shows that he more than likely reduced the possible side effects. It is clear that Alphonso's injuries and losses were a direct result of an abscess caused by the lap band which eroded into his stomach. The ensuing recovering time of 3 months, which caused Alphonso to lose his job, may or may not be considered too remote from the main act.
There are a number of defences against negligent misrepresentation, including apportion of responsibility and assumption of risk. As previously mentioned, Alphonso took reasonable steps to make an informed decision (consulted a specialist) and to ensure that the surgery had the greatest possibility of success (followed the required procedures). This indicates that he took steps to ensure the minimisation of risks. As for assumption of risk, every surgery has some risks, such as infections. In this scenario, there could not be an assumed risk for an abscess to erode into his stomach. Therefore, full responsibility is on Dr Corinthian for the injuries caused, however, he is not responsible for the loss of Alphono's job (this is not something a court would be able to recover). Therefore, Alphonso would have to claim a remedy in relation to personal injury.
The only type of remedy for a case such is this is damages, which aims to place the innocent party (Alphonso) in a position he would have been in had he not undergone the surgery. In calculating the amount of damages, one must first consider the remoteness of damages. The physical injury, medical costs, loss of actual and potential earnings as well as pain and suffering can all be recovered by Alphonso. However, the loss of his job cannot be recovered, as it is too remote and cannot be easily assessed.
In summary, Alphonso would most likely be able to successfully sue Dr Corinthian for damages for negligent misrepresentation under common law, due to Dr Corinthian's failure to succinctly and unambiguously answer Alphonso's query about the possible risks of the procedure. The injuries sustained by Alphonso would not have occurred if he had been properly informed about the risks of the operation because he would not have had it performed. The statement that there were no detrimental consequences in having the surgery was relied upon by Alphonso in making his decision. He was consequently injured in direct connection with the surgery, despite performing his role appropriately. Therefore, full responsibility is on Dr Corinthian, as he is a specialist who should have known the risks involved and communicated them to his patient. Blataslav was a general doctor, who without expertise, merely gave what he believed was an accurate representation.
Question Two
This case clearly shows a contract between Phillip and David. The matter to be determined is whether or not the contract was legally binding and the extent of Phillip's contractual obligations.
When considering whether or not a contract has been performed properly it is essential that both parties have provided consideration. In this situation, Phillip offered to pay David $10,000 (and later an extra $5,000) in return for David working at the gallery on weekends. It is clear that David performed his part of the agreement by working weekends and being an "excellent employee". In fact, David went beyond his contractual obligations by also helping Phillip with picture framing.
Next it is important establish exactly what promises were made and if they became terms of the contract, whether expressed orally or in writing. At the time the contract was created, Phillip had only promised to pay David $10,000 for his work. This means that David agreed to be paid that amount for his work by signing the contract. Phillip had made no mention of an extra $5,000 if David did extra work or did an excellent job. This offer was created after the fact (Phillip offered to pay David extra after he had done the work and not before) and under contract law the consideration for a promise may not be past. If Phillip had offered David the extra $5,000 as an incentive to work harder, then it would be considered a collateral or secondary contract.
In general, a person's signature signifies that they agree to be legally bound to the document they have signed. In this case, Phillip and David both are legally bound to the terms of the contract. Terms not expressly written into the contract could be argued to be representations that were not meant to be part of the agreement. If David wanted to ensure that he would receive the additional $5,000, he should have either created a second contract for Phillip to sign or amended the original. Because the consideration provided by David was past and the term had not been expressed in the contract, it would be difficult to reasonably justify that David had worked hard and continued to work hard because of the promise of the extra $5,000.
As expressed earlier, Phillip is not liable to pay David the $5,000. Are there any defences for Phillip to not have to pay the $10,000? It could be argued that the contract stated that Phillip was to pay David at the end of 2008 (a non-specific date) and not in February 2009. However, this is unlikely to be seen as a breach on David behalf as it gave Philip additional time to ensure he was able to pay.
Now that it has been established that Phillip did breach the terms of the contract and that David had performed his obligations, what are the remedies available to David? He could sue for the recovery of the contract price ($10,000) or a court order to make Phillip pay the $10,000. The advantage of this remedy is that it is easier to establish the amount owed to David than if he sued for damages (which he could also do).
In summary, Phillip is liable to pay the $10,000, because David had fully performed his part of the agreement. The excuse that he does not have the money now, even though it was over a month after it was owed, does not stand due to the fact that Phillip should have taken reasonable steps to make sure that he would be able to pay the money at the end of 2008. Phillip should have set aside money to pay David on either weekly or monthly basis to ensure he would be able to fulfill his contractual obligations. By not meeting these obligations, Phillip was in breach of contract and would be required by law to perform his promise and pay the $10,000. As the extra $5,000 was promised after the fact, Phillip is not liable to pay this amount.
Question Three
The issue of this case is whether or not Leviathan's disclaimer had relieved them of all liability for Walter's injuries, and if such a disclaimer was valid.
There are two main questions which need to be answered in this situation to determine if the disclaimer (which is considered an exemption clause) was valid are: Is the exemption clause a term of the contract and does the clause cover the breach.
Firstly let's consider if the clause was a term of the contract in both the case of the brochure and of the signed document. The disclaimer in the brochure can be considered a term of the contract because reasonable notice was given to Janet and Walt. When enquiring about the tour, they were told by Poll about a number of conditions of the tour including the disclaimer. An unsigned exemption clause may be binding if 'reasonable notice' has been given.
It is also held that an exemption clause of a signed document will often be binding. Both Janet and Walt signed the disclaimer form before the tour. This may give rise to the issue of whether or not Walt considered the document he was signing to be contractual in nature. However, this point is irrelevant in this situation as had already agreed to the conditions of the tour before getting on the boat by paying for it. The signing of the disclaimer on the boat was an additional measure employed by Leviathan to ensure people had at least seen the disclaimer. Signing it merely represents a confirmation on the customer's behalf.
Now it is important to establish whether or not the clause covers the breach. The disclaimer states (in essentials) that there were some risks involved that were beyond Leviathan's control. In this case, Leviathan would not have control of the animals they were observing or any behaviour they might enact nor the environment they were in. In particular, Leviathan could not control the origin of the event: the giant squid attacking jellyfish. It is unreasonable to assume that Leviathan would know that the squid would attack the jellyfish and that the whale shark would react to it. This certainly gives weight to the situation being beyond Leviathan's control.
It could be said, however, that Leviathan chose the spot where the tour was conducted and that they would have been reasonably familiar with the area. While this may be true, it does not cover the movement of the jellyfish nor the squid. It is quite conceivable that even if there were no surrounding marine life around when the tour began, the jellyfish and squid may have moved into the area anyway. The main factor is that while it is conceivable that injury may occur during such an exercise (hence the disclaimer), the situations where a person may become injured are many and varied, and could not be reasonably quantified.
The only other general situation where the disclaimer would not have covered such an event would if Leviathan had been reckless or negligent. As they would have performed this tour many times before, they would have been able to use their experience and knowledge to aid in reducing risk. Considering that an event such as this had never happened before, such prior knowledge would not have been useful. Also, asking participants to sign a disclaimer shows that Leviathan was performing its duty of care when providing its service.
In summary, Walt would most likely not be able to successfully sue Leviathan for damages for breaching any express terms. The event, while possible, had not happened before and was a freak occurrence. By signing the disclaimer, Walt agreed that there was some risk involved in the outing and accepted the liability for such events. Leviathan was not reckless or negligent in their conduct while conducting the tour and had sufficiently brought to the attention of Janet and Walt the disclaimer. Whether or not they read it and/or understood it is not the responsibility of Leviathan in this case. Walt, therefore, would not be entitled to any remedies, such as damages.
