Civil Liability Act Liability Act

Question: Discuss about the Civil Liability Act for Liability Act. Answer: Introduction: The plaintiff here received some money as a result of a golden-handshake after deciding to retire. The total sum of which is $500, 000, which she intends to invest in real-estate. Upon being approached by defendant 1 with a proposal of "Sure-thing Property Development Pty Ltd" (Sure-thing), a property development project on a small island of Moreton Bay, plaintiff turns to her financial advisor, George to find the feasibility and forecast the profits or losses for the deal. Defendant 1 assures the plaintiff of tripling the investment amount in time duration of 6 months. As George asks for a month to review the company and the project as well as a sum of $12, 000 to work on the financial report, plaintiff turns to her friend, defendant 2 for advice. Defendant 2 is a student of accounting and financial planning at Griffith University, and advises the plaintiff to go ahead with the investment after going through the accounts of Sure-thing for no charges or fees. Plaintiff invests a sum of $500, 000 in Sure-thing, losing out on the investment soon due to liquidation of the company. Many a reports published in various financial and real estate journals suggested the disadvantageous position of Sure-thing and warned against the financial troubles in the company. A suggestive decision is to be taken whether a claim against defendant 1 and defendant 2 holds water for the plaintiff. Plaintiff's claim against the defendants Plaintiff can put forth a claim of wrongdoing and misleading against both the defendants. For defendant 1, Angie, the claim would be as per Competition and Consumer Law Act 2010 - Schedule 2, 37-21(Commonwealth Consolidated Acts, 2010). As the subsection states, a person can be considered to have misled about a business activity as making a representation that: Is false or misleading in a particular matter; Concerns the profitability, risk and material aspect of any business activity: By the person's invite (either by advertising or any other means That requires work by performance of others, or investment by others. Defendant 1 can be found liable since she approached the plaintiff and offered help in investing the sum in Sure-thing. Since the subsection states clearly that defendant 1 indulged in offering services under false pretence subject to peer review. This becomes a case of forfeiting standard care for professionals2 (Civil Liability Act 2003 - SECT 22 standard of care for professionals, 2003). As clearly stated, a professional is liable to the breach of a duty in case they forgo the peer professional opinion unless contrary litigation, legislation is present. In this case, there was enough evidence available to prove that the investment in Sure-thing was not sound due to the company's liability. In such circumstances, the standard care duty by defendant 1 ensures informing the plaintiff about the reasonable risk involved in investing the money.3 (CIVIL LIABILITY ACT 1936). Defendant 1 owes a duty of care as a professional duty.4 (CIVIL LIABILITY ACT 2003 - SECT 28 application of pt 2, 2 003). The plaintiff has the onus to prove: Factual causation: Breach of duty was necessary for the harm to occur Scope of liability: By the defendants (CONSUMER LAW SECT 18 Misleading or deceptive conduct, 2010). The plaintiff can file a case of negligence on the part of the defendants, more so on the part of defendant 1(a professional). For defendant 2, the tag professional does not work out to be true since he is yet to complete educational formalities and practice the profession. In such cases when defendant 2 does not charge any money for the advice, there is very little liability on him. Liability against defendants If the defendants are found responsible according to law, they are to be served with fines to compensate the losses made by the plaintiff. Apart from the fulfillment of damages caused to the plaintiff by defendant 1, the defendant will also be questioned for the unprofessional ethics and errors of judgment. In case the defendant is found to be of fraudulent nature, the charges would be for deceit and not of negligence. In such a case, defendant 1 is liable to pay fines and damages to the plaintiff. Negligence claim by the defendants on the part of the plaintiff Earlier cases can be found to identify the need for duty of care6(Perre v Apand Pty Ltd [1999] HCA 36, 1999) In the case of the defendants, there is hope in the form of various practices and law making that can be successfully used to either show that the plaintiff was sufficiently warned about the soundness of the investment before making it(in this case, this is not applicable since defendant 1 rather advised the plaintiff that the investment shall triple in 6 months), or to successfully prove the peer professional opinion about Sure-thing wrong(another rudimentary option as Sure-thing is up for liquidation ensuring the falsehood of the claim that the company is financially stable). In such a condition, the only alternatives for the defendants are: Onus of Proof: The plaintiff is liable to prove all the facts of causation in the case7 (CIVIL LIABILITY ACT 2003 - SECT 12 onus of proof, 2003) Contributory Negligence: The plaintiff can be accused of contributory negligence as the risk of investment in real estate is a commonly known fact8 (CIVIL LIABILITY ACT 2003 - SECT 23 standard of care in relation to contributory negligence, 2003) In such conditions, the defendants have to prove that there is reasonable foreseeable risk in investing any sum in real estate markets, and the plaintiff is in a position of judging whether or not the company they are investing in is financially sound or not. The plaintiff might not have been a financial expert who can figure out the balance sheets of Sure-thing, but a reasonable risk-taker could have considered reading of some material accessible by them about the company. The plaintiff can in this case be held liable for contributory negligence. In fact, the same standard of care applies to the plaintiff to explore but preserve their own interest as they apply to the defendants. In a condition where the plaintiff is found responsible of contributory negligence, their claim to damages can be defeated9 (CIVIL LIABILITY ACT 2003 - SECT 24 contributory negligence can defeat claim, 2003). Conclusion To conclude, it can be noted that the defendant hold as much claim to non damage as the plaintiff holds claim to damage. The presumption of the plaintiff about the financial and accounting abilities of defendant 2 would be highly speculated and in fact ruled by emotions. Moreover, separation of opinions and facts in the case would enable us to see that defendant 2 could prove that the advice given to the plaintiff was in good faith, and was a personal opinion rather than a proved fact, and could prove to be a difference between opinion and fact as seen in As seen in Fitzpatrick and others vs. Michel10 (Fitzpatrick and others v Michel [1928], 1928). As for defendant 1, professional duty demands a fair and unbiased presentation of facts in case of foreseeable risk, which was not followed, thus inviting a breach of standard care. Same could be however said for the plaintiff, as she can be held accountable for contributory negligence as no research was done from her end on the risks and liabilities in case of investing money in real estate. Bibliography CIVIL LIABILITY ACT 2003 - SECT 22 22 standard of care for professionals. (2003). Retrieved September 27, 2016, from bit.ly/2d1bMrf Misleading conduct as to the nature etc. of services. (2010). Retrieved September 27, 2016, from https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html#_Toc448153223 ounsel, O. of P. (2006, July 1). South Australian legislation. Retrieved September 27, 2016, from https://www.legislation.sa.gov.au/LZ/C/A/CIVIL%20LIABILITY%20ACT%201936.aspx CIVIL LIABILITY ACT 2003 - SECT 28 28 application of pt 2. (2003). Retrieved September 27, 2016, from https://www.austlii.edu.au/au/legis/qld/consol_act/cla2003161/s28.html Misleading or deceptive conduct. (2010). Retrieved September 27, 2016, from https://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/sch2.html#_Toc448153198 Perre v Apand Pty Ltd [1999] HCA 36. (1999, August 12). Retrieved September 27, 2016, from https://jade.io/article/68136 CIVIL LIABILITY ACT 2003 - SECT 12 12 onus of proof. (2003). Retrieved September 27, 2016, from https://www.austlii.edu.au/au/legis/qld/consol_act/cla2003161/s12.html Civil Liability Act 2003 - SECT 23 23 standard of care in relation to contributory negligence. (2003). Retrieved September 27, 2016, from https://www.austlii.edu.au/au/legis/qld/consol_act/cla2003161/s23.html CIVIL LIABILITY ACT 2003 - SECT 24 24 contributory negligence can defeat claim. (2003). Retrieved September 27, 2016, from https://www.austlii.edu.au/au/legis/qld/consol_act/cla2003161/s24.html Fitzpatrick and others v Michel [1928]. (1928). Retrieved September 27, 2016, from bit.ly/2cACQ2g