点击查看：2020年ACCA考试练习试题分享02

发布时间：2020-09-04

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Question:

In relation to the TORT OF NEGLIGENCE, explain:

(a)the standard of care owed by one person to another;

(b)remoteness of damage.

Answer:

(a)The law does not require unreasonable steps to be taken to avoid breaching a duty of care. In legal terms, a breach of duty of care occurs if the defendant fails:

\'…… to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do; or doing something which a prudent and reasonable man would not do.\' (Blyth v BirminghamWaterworks Co (1856))

Thus the fact that the defendant has acted less skilfully than the reasonable person would expect will usually result in a breach being established. This is the case even where the defendant is inexperienced in their particular trade or activity. For example, a learner driver must drive in the manner of a driver of skill, experience and care (Nettleship v Weston (1971)). However, the standard of care expected from a child may be lower than that of an adult (Mullin v Richards (1998)).

Clearly the degree, or standard, of care to be exercised by such a reasonable person will vary depending on circumstances, but the following factors will be taken into consideration in determining the issue:

(i)The seriousness of the risk

The degree of care must be balanced against the degree of risk involved if the defendant fails in their duty. It follows, therefore, that the greater the risk of injury or the more likely it is to occur, the more the defendant will have to do to fulfil their duty. The degree of care to be exercised by the defendant may be increased if the claimant is very young, old or less able bodied in some way. The rule is that \'you must take your victim as you find him\' (this is known as the egg-shell skull rule).

In Haley v London Electricity Board (1965) the defendants, in order to carry out repairs, had made a hole in the pavement. The precautions taken by the Electricity Board were sufficient to safeguard a sighted person, but Haley, who was blind, fell into the hole, striking his head on the pavement, and became deaf as a consequence. It was held that the Electricity Board was in breach of its duty of care to pedestrians. It had failed to ensure that the excavation was safe for all pedestrians, not just sighted persons. It was clearly not reasonably safe for blind persons, yet it was foreseeable that they might use the pavement.

The degree of risk has to be balanced against the social utility and importance of the defendant\'s activity. For example, in Watt v Hertfordshire CC (1954), the injury sustained by the plaintiff, a fireman, whilst getting to an emergency situation, was not accepted as being the result of a breach of duty of care as, in the circumstances, time was not available to take the measures which would have removed the risk.

(ii)Cost and practicability

Any foreseeable risk has to be balanced against the measures necessary to eliminate it. If the cost of these measures far outweighs the risk, the defendant will probably not be in breach of duty for failing to carry out those measures (Latimer v AEC Ltd (1952)).

(iii)Skilled persons

Individuals who hold themselves out as having particular skills are not judged against the standard of the reasonable person, but the reasonable person possessing the same professional skill as they purport to have (Roe v Minister of Health (1954)).

(b)The position in negligence is that the person ultimately liable in damages is only responsible to the extent that the loss sustained was considered not to be too remote. The test for remoteness was established in The Wagon Mound(No 1) (1961).

The defendants negligently allowed furnace oil to spill from a ship into Sydney harbour, which subsequently caused a fire, which spread to, and damaged, the plaintiff\'s wharf. Although the defendants were held to be in breach of their duty of care, they were only liable for the damage caused to the wharf and slipway through the fouling of the oil. They were not liable for the damage caused by fire because damage by fire was at that time unforeseeable (the oil had a high ignition point and it could not be foreseen that it would ignite on water).

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(c) Describe the purposes for which a person specification might be used. (4 marks)

正确答案：
Part (c):
The person specification might be used for a number of purposes:
In recruitment, to provide an illustration of the type of candidate sought prior to the selection stage.
In selection, the most obvious and popular use of this document, is to assess whether an individual’s personality, abilities and
experience match the organisation’s requirements.
For promotion, to evaluate whether an individual has the necessary ability and personality to move within the organisation.
In evaluation of performance to assess whether the person has demonstrated the necessary skills to do the job effectively.
In disciplinary procedures through demonstrating that the person specification required to do a particular job for which some one
was appointed are not evident or being applied. For example, where an employee required to be discrete is discovered to have
disclosed confidential information to third parties.

(b) Comment on the need for ethical guidance for accountants on money laundering. (4 marks)

正确答案：
(b) Need for ethical guidance
■ Accountants (firms and individuals) working in a country that criminalises money laundering are required to comply with
anti-money laundering legislation and failure to do so can lead to severe penalties. Guidance is needed because:
– legal requirements are onerous;
– money laundering is widely defined; and
– accountants may otherwise be used, unwittingly, to launder criminal funds.
■ Accountants need ethical guidance on matters where there is conflict between legal responsibilities and professional
responsibilities. In particular, professional accountants are bound by a duty of confidentiality to their clients. Guidance
is needed to explain:
– how statutory provisions give protection against criminal action for members in respect of their confidentiality
requirements;
– when client confidentiality over-ride provisions are available.
■ Further guidance is needed to explain the interaction between accountants’ responsibilities to report money laundering
offences and other reporting responsibilities, for example:
– reporting to regulators;
– auditor’s reports on financial statements (ISA 700);
– reports to those charged with governance (ISA 260);
– reporting misconduct by members of the same body.
■ Professional accountants are required to communicate with each other when there is a change in professional
appointment (i.e. ‘professional etiquette’). Additional ethical guidance is needed on how to respond to a ‘clearance’ letter
where a report of suspicion has been made (or is being contemplated) in respect of the client in question.
Tutorial note: Although the term ‘professional clearance’ is widely used, remember that there is no ‘clearance’ that the
incumbent accountant can give or withhold.
■ Ethical guidance is needed to make accountants working in countries that do not criminalise money laundering aware
of how anti-money laundering legislation may nevertheless affect them. Such accountants may commit an offence if,
for example, they conduct limited assignments or have meetings in a country having anti-money laundering legislation
(e.g. UK, Ireland, Singapore, Australia and the United States).

(iii) Flexibility. (3 marks)

正确答案：
(iii) Flexibility may relate to the company being able to cope with flexibility of volume, delivery speed or job specification. In
this particular context, flexibility appears to have been problematic for HLP as evidenced by the fact that 320
consultations relating to commercial were subcontracted during the year. This could be due to the lack of the ability of
HLP advisors to be able to provide consultations to a potentially wide-range of commercial clients, i.e. the variability in
the ‘job specification’ requires greater flexibility than HLP can deliver. Furthermore, a total of 600 consultations relating
to litigation work were also subcontracted throughout the year. These subcontract consultations might be due to the
inability of HLP to deal with fluctuations in demand.

(ii) the strategy of the business regarding its treasury policies. (3 marks)

(Marks will be awarded in part (b) for the identification and discussion of relevant points and for the style. of the

report.)

正确答案：
(ii) Strategy of the business regarding its treasury policies
Treasury policies are reviewed regularly by the Board. It is group policy to account for all financial instruments as cash
flow hedges. As a result, changes in the fair values of financial instruments are deferred in reserves to the extent the
hedge is effective and released to profit or loss in the time periods in which the hedged item impacts profit or loss.
The Group contracts fixed rate currency swaps and issues floating to fixed rate interest rate swaps to meet the objective
of protecting borrowing costs. The cash flow effects of the interest rate swaps match the cash flows on the underlying
instruments so that there is no net cash flow effect from movements in market interest rates. If the interest rate swaps
had not been transacted there could have been an increase in the annual net interest payable to the Group. The strategy
of the group is to minimise the exposure to interest rate fluctuations.

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