1) Duty of care Can also discuss the 4 requirements under Caparo’s case- easiest way to answer this question!!!- but must explain that it is cuz both are because of negligent misstatements 2) Breach of duty- Reasonable man ie all accountants should audit properly 3) Causation- Prosperous suffered some loss due to the mistake 4) Remoteness- Damages not too remote as it was reasonably foreseeable
Raise possibility that there is a possibility of breach of contract. Implied term of contract that auditors should not be negligent. Plead alternate claims- both contractual claim and tort claim, but court will only award for one. If company falsify records purposely, then they will be contributory liable c) AA accountants could have protected themselves by including an express clause limiting liability for a stipulated percentage of error (voluntary assumption of risk). Secondly, it also could have taken out insurance- compulsory for accountants. AA accountants could have obtained professional indemnity/insurance- which is usually compulsory for accountants, doctors, lawyers, architects etc. Exclusion clause if it is reasonable under UCTA. Likely to be reasonable as they have similar bargaining strength since they audit for Prosperous every year. Propsperous’ own accountants should have discovered the discrepancy in the accounts- contributory liable Banks could also sue for misrepresentation (because cost them funds) -> Properous can sue AA (but usually cannot) 2a) SuperSave is liable for Jin Swee’s injury and damages can be claimed for the medical expense based on the tort of vicarious liability (but not based on the tort of negligence??) . SuperSave owed Jin Swee a duty of care as the relationship between both of them is close and proximate and SS should have taken Jin Swee into consideration when carrying out the acts/omissions of cleaning the floor. Also, there must not be any policy consideration negating a duty of care. Since cleaning up the wet floor is for the safety of customers, SS would have owed Jin Swee a duty of care. // Moreover, there was a breach of duty of care as a reasonable person would have ensured the floor was dry. Companies usually would display a sign as well to show that the floor is wet. Cost of putting up this sign is v low compared to if customer slips. SS should have put up a sign, but it did not, hence there is a breach of duty of care. ( Test- what a reasonable man would have done, and explain what he would have done. Very simple but still must explain!!! Should also talk about how to balance the risk and cost of taking preventive measures ) // Focus on what employee did, no need to talk about how SS did not train their employees Causation can also be established as the slip caused Jin Swee’s hip fracture, and // damages are not too remote as a slip can be reasonably foreseeable since the floor is wet. Even though Jin Swee’s hip was fractured during the fall due to a pre-existing hip problem which caused the fracture, by the “egg-skull” or “thin-skull” rule, SS has to take Jin Swee as it finds her, and has to be liable for her injury even if a normal person would not have fractured her hip. Based on all these facts, if SS had
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- Spring '14
- Corporation, Noh Luc