Practice Question 50

Issue: Whether Madan Gopaul can bring action against the bank to recover the monies invested.
Law:
Law of tort
Tort is the branch of civil law relating to legal obligations imposed on all-natural and artificial
persons. It refers to the fundamental duties that one person owes to another outside of a contract.
Tort enables a person to whom the obligation is owed to pursue a remedy on his own behalf
where breach of a relevant norm of conduct results in a substantial infringement of his personal
interests. The law of tort defines the obligations imposed on one member of society to their
fellows and provides for compensation for harms caused by breach of such obligations
 Negligence Based Torts
The tort of negligence is one of the main platforms of liability due to its interaction with wider
society and its own employees, servants, and/or agents. In the case, Lloyd Bell v. Alcar it was
held in order to prove negligence in a duty of care situation there are four requirements: (1) The
existence in the law of a duty of care situation. (2) Breach of duty of care by defendant. (3) A
causal connection between the defendant’s careless conduct and damage. (4) That the particular
kind of damage to the particular claimant is not so unforeseeable as to be too remote. When these
four requirements are satisfied, the defendant is liable in negligence.
 The Concept of Duty/ Duty of Care
This concept dictates that one should take reasonable care to avoid acts or omissions which can
be reasonably foreseen as likely to injure one’s neighbour. In the case, Donoghue v. Stevenson,
the appellant drank a bottle of ginger beer manufactured by the defendant which contained the
remains of a snail and led to the appellant suffering from shock and severe gastroenteritis. The
cour held that the defendant owed a duty to take care of the customer and ensure there were no
noxious elements in the goods
 The Standard of Care
The standard of care defines the conduct that must be present to establish negligence in law. If
the defendant causes the claimant loss or injury but can demonstrate that he acted in a way that a
reasonable person would have acted, no liability attaches.
In the case Javier Arthurton BNF, Sandra Arthurton Claimant v. Winston Skeete, First Defendant
and Wesk Limited, Second Defendant, the group was intending to travel to St. Kitts where
Javier’s left foot was severely damaged when he stepped on to the ramp to board the boat. The
court held that the defendant nor their servants were negligent, in that they had exercised the
duty of care required in relation to the claimant.
 Causation
Causation occurs when the defendant is shown to have caused the damages or loss in question. A
claimant bringing a negligence claim does not have to prove that the defendant's breach of duty
was the sole or even the primary cause of damage, as long as he or she can show that it
contributed materially to the damage. In the case Lisa Ann Mc Kensie v. Medcorp Limited and
Cancer Center of the Caribbean Limited, the widow and orphans of the late Ricardo Mckenzie
allege that his demise was precipitated by the negligence of the defendants in their failure to
ensure the proper functioning of the radiation machine, by which he was treated. The court held
that the defendants caused the death of Mr Mckenzie due to negligence. The judge came to this
decision after establishing a causal link between the defendant’s actions and cause of death.
 Damages
After key tort law factors such as a duty of care, breach of the standard of care, and causation
have been identified and established consideration must then be placed on whether the breach of
negligence caused damage and what can be recovered. In the case of Overseas Tankship (U.K.)
Ltd v. Morts Dock & Engineering Co. Ltd. The respondents sought to recover from the
appellants compensation for the damage of their property and the equipment that was lost due to
a fire. The court held that foreseeability of damage was an effective test to determine guiltiness
and concluded that the appeal should be allowed, and the damage caused by the negligence of
the appellants be dismissed with costs.
 Contributory Negligence
Contributory Negligence occurs when the injured party failed to take reasonable care of himself
in his own self-interest and thus contributed to his own injury. As a result, he cannot demand that
the other party compensate him in full.
In the case of Michael Francois v. Ryan Richards, the respondent left his vehicle parked on the
right side of the road and attempted to cross over where he was accidentally struck by a vehicle
being driven by the appellant. The respondent sustained several injuries. The court held that the
respondent contributed to the accident and injuries occurring which he sustained as a result of
contributory negligence.
 Negligent Misstatement/ Misrepresentation
The tort of negligent misstatement/misrepresentation arises when false statements are made by
someone who owes the recipient a duty of care. In the case of Caparo Industries Plc v Dickman
and others, the well-known four-element test for negligent misstatement/misrepresentation was
articulated:
1. The advice is required for a purpose, whether specifically specified or broadly described, that
is made known to the adviser at the time the advice is given, either actually or inferentially. 2.
The adviser is aware, either directly or indirectly, that his advice will be communicated to the
advisee, either specifically or as a member of a predetermined class, in the proper order. 3. It is
known, either directly or indirectly, that the advice so communicated is likely to be acted on by
the advise for that purpose without independent inquiry, and 4. It is used to his detriment by the
advice.
Analysis
In this situation, Madan Gopaul received a retirement payment of two hundred thousand dollars
which he decided to invest into a new mutual fund as a result of the advice from the manager.
The manager indicated the high interest rate and low risk of the mutual fund which piqued the
interest of Mr. Gopaul who quickly invested his entire retirement payment without heeding the
advice from the fund officer who supposedly had a broader knowledge of the investment. Six
months later, an international terrorist attack caused a stock market crash leading Madan’s
investment to plummet.
Firstly, a negligent misstatement occurred on behalf of the manager since he communicated his
advice directly to Madan for the purpose of interesting him to invest into the mutual fund
although he did not have all the relevant information. The advice given to Madan was for the
purpose of obtaining a higher interest at a lower risk for his investment. The manager directly
communicated his advice and was aware that it would be acted upon by Madan. However,
Madan acted upon the advice to his own detriment.
Neither the manager nor the bank would be liable for the financial damages caused since he
showed a duty and standard of care by rightfully referring Madan to the mutual funds officer.
This was reasonable to do so since the manager was aware that he was not responsible for the
investments, and it should be assumed that his knowledge was limited.
Unfortunately, Madan failed to take reasonable care of himself in his own self-interest and thus
contributed to his own financial losses since he disregarded most of the information the funds
officer was offering him and blindly invested his money as a result of the negligent advice from
the manager.

Conclusion
I would advise Madan to not take legal action against the bank since he invested his money
primarily based on the advice given to him by the manager who is not a professional in the field
of mutual funds. Madan invested his money at his own risk and should be liable for his own
negligence since he did not ascertain the right knowledge about the investment from the funds
officer.
Practice question 65
ISSUE: Whether the fraud squad can lay charges against Vickram Boodoo
LAW:
Crime
A crime is an act which the law, with appropriate penal sanctions, forbids. As prohibitions are
not enacted in a vacuum, there is usually some evil or injurious or undesirable effect upon the
public against which the law is directed. While observations show the consequence of an act or
omission that contains the characteristics of a public wrong and moral wrong is the commission
of a criminal offence.
Elements of a crime
 Actus Reus
Actus Reus is the act of doing something wrong or illegal. It also involves the omission which
occurs when an individual fails to carry out an act, in these situations, the failure to perform the
act is considered to be a criminal offence. Additionally, if an individual finds themselves in a
mere event that involves criminal liability, this is also classified as Actus Reus. Actus Reus must
be accompanied by Mens Rea in order for action or event to be considered a crime. In the case of
R v Quick (1973) where a diabetic nurse who suffered from Hypoglycaemia, one day felt unwell
and assaulted his victim. In such a case, Actus Reus existed as the appellant performed an illegal
act of assault.
 Mens Rea
- Intention
Mens Rea refers to the state of mind an individual has while committing a crime.
There are different components of Mens Rea which include intention, recklessness
and negligence. Firstly, a person intends a consequence of his act if he acted with the
aim of bringing about that consequence. Additionally, if a person foresees that a
consequence is virtually certain, although it is not his aim to achieve it, he can find to
have achieved that consequence. In the case, R v Mohan, the appellant was convicted
on the grounds of intention to cause bodily harm and appealed. His Mens Rea was
questioned, and the court held that his reckless state of mind is not sufficient to
constitute Mens Rea and upheld the appeal because the accused knew that the
 consequences of his act unless interrupted would have a high possibility to be the
complete offence.
- Recklessness
A person may be reckless as to a consequence or a circumstance. A person is reckless
as to a consequence if he is aware of a risk that it will occur, and as to a circumstance
if he is aware of a risk that it exists, and in the circumstances known to him, it is
unreasonable to take the risk. Take for instance, the case of R v Caldwell, where an
employee of a hotel was fired and as a result got drunk and set the building on fire.
The court saw this as recklessness as the employee was self-induced intoxicated and
any reasonable person can conclude that there are serious consequences that followed
any risk taken by a drunk or intoxicated person. Therefore, although the employee did
not intend to injure or kill any occupants of the hotel, he still took an unjustifiable risk
by setting the building on fire.

- Negligence
Negligence occurs when a person takes a risk where it is certain that someone of a
reasonable standard would not be expected to take that risk. In the case, Brown
(Uriah) v. R, a serious traffic accident occurred involving several vehicles. The court
held that the appellant was not guilty of negligence and therefore upheld his appeal.

Crimes Involving Companies

 Liability on the basis of the ‘directing mind’ principle
In mens rea offences, if the court finds the officer or managerial level employee to be
a vital organ of the company and virtually its directing mind in the sphere of duty
assigned him so that his actions and intent are deemed the action and intent of the
company itself, the company can be held criminally liable even where the criminal act
was performed not wholly for the benefit of the company. The individual must,
however, have been acting within the scope of the area of the work assigned to
him. In the case, Financial Conduct Authority v Da Vinci Invest Ltd and others, the
court held that DVI does not fall into the same category as the Traders and
Mineworld. In addition, there was no evidence that DVI’s directing mind, Mr. Klein,
had personally engaged in market abuse as the arrangement was a singular event and
DVI was not engaging in day – trading.

ANALYSIS
Vickram Boodoo owns and manages a company that specializes in cruise ship vacations. He
advertised an ‘after COVID’ cruise in which one thousand persons paid in advance to attend.
However, it was cancelled due to the borders remaining closed and Vickram was reported to the
Fraud Squad since he was not able to refund his customers.
Firstly, it must be ascertained whether Vickram acted in the name of the company or for his own
personal gain. Since he owns and manages the company it can be concluded that his actions will
not only benefit the company but also himself.
Additionally, the crimes committed by Vickram was done in Actus Reus and Mens Rea offences
since he recklessly took an unreasonable risk, knowing that there were consequences to his
actions.
Vickram intentionally refused to refund the citizens their money and made attempts to deposit
cheques into his account. It was therefore his aim to never return those funds to his customers.
Since he was the sole manager and owner of his company it was not expected that he would take
such an unjustifiable risk. As a result, Vickram being a vital organ for the business, his actions
and intent are deemed the action and intent of the company itself.
CONCLUSION
I would advise the Fraud Squad to proceed with legal action and press charges against Vickram
Boodoo on the grounds of Actus Rea, Mens Rea, Crimes committed involving companies since
him and the company were acting as a single entity, as well as offences under sections 3 and 5 in
the Negotiable Instruments Act