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a. Neighbour test: It must have been RF that our actions could have caused
someone like the P to suffer a serious mental illness b/c
Case,similar to. Gifford v. Strang Patrick Stevedoring Pty Ltd (employers liability to children
of worker). Mount Isa Mines Ltd v Pusey (employer owed a DOC to employee who assisted a
seriously burned co-worker). Sullivan v. Moody (there cannot be a duty of care that conflicts with
a statutory duty to carry out investigations)
These 2 elements are/not satisfied, D owed/ didnt owe P a DOC for purely
psychological injuries.
Case 3: PURE ECONOMIC LOSS The legal issue is whether D owed P a
DOC for PEL by
R & A: The law says that D owed a DOC for PEL to the P if the P could
prove 4 perre v. Apand factors.
(a) Neighbour test: Was the type of P RF? Here, it was RF, that Ds careless act
could cause economic loss to a type of person like P b/c... (Cause severe damage to property and
then cause economic loss to adjacent properties due to repairs, rebuilding,etc.).Thus, D was
more/less likely to owe a DOC to P.
(b) Legitimate business interest: Were the Ds actions legitimately
protecting the Ds business interests? Here, D had (no) legitimate business
interest in Ds action), D did it due to Thus, D was more/less likely to owe a DOC to P. (If D
was protecting business interest, no DOC owed.)
(c) Vulnerability of plaintiff: Was the plaintiff able to prevent the
defendants negligence? Was there any way for the P to protect itself from
the Ds negl? Here, (1) or (2). P was very (1 or 2)...
1) Vulnerable: There was no way that P could protect her/himself in this situation b/c he/she could
not control(Ds action). Thus, D was more likely to owe P a DOC.
2) NOT Vulnerable: P are NOT vulnerable b/c he/she could have: (a) and/or (b). a) Back-up
plans i.e. an alternative supplier/customer/. b) Purchased business interruption insurance
which would compensate the plaintiffs for any lost profits due to an interruption in business.
Thus, D was less likely to owe P a DOC
(d) Defendants knowledge of plaintiffs vulnerability: Did the D have
knowledge of the risk to the P?
that. Thus, D was more/less likely to owe P a DOC. (Cartex oil v The dredge Willemstad)
C: In sum, (numbers) of four Perre v. Apand factors favour the existence of the DOC. Therefore, D
owed/did not owe P a DOC for PEL.
Case 4: NEGLIGENT MISSTATEMENT(Bad advice) The legal issue is
whether D owed P DOC for
This case involves negligent misstatement which means one person gives bad
advice to another person, and the other person relies on that bad advice and
suffers a loss because of it. To prove it exists, we apply MLC v. Evatt
elements: 1.The speaker realises they are being trusted to give information, which they
are believed to know. This element is (not) satisfied,b/c of his job.... 2.The subject of the advice
is of a business or serious nature. This is dealing withso it is..(busin matter). 3.The speaker
realises that the recipient intends to act on the advice. This element appears to be satisfied b/c P
met/speak with D in connection with its decision to do (based on the report). 4.It is reasonable
in the circumstance for the recipient to accept and rely on the advice (reasonable reliance).
This element is (not) satisfied, b/c(Shaddock v.Paramatta) not buying land vs road, and (Esso
v. Mardon) petrol station
C: Therefore, these 4 elements are/note satisfied, so D owed/didnt owe P a
DoC for
2) BREACH OF THE DOC The legal issue is whether D fails to meet the
required SOC regarding
R: The law says that a D breached a duty of care if that person failed to act as a reasonable,
ordinary, careful person (ROCP) would in the same situation. We analyse the four Romeo v.
Conversation Commission factors to tell how a ROCP should act:
1.The magnitude of the risk. This means what is the worst that could happen? The worst that
could happen from.... is...b/c.... so the gravity of harm is high. This means a higher SOC required
and it tends to show that A failed to act as a ROCP. How many people would be affected?
Daction would have caused(list 2 or 3) b/c... Also, many people could be
affected b/c...
2.The probability of the risk: How likely was Ds conduct to cause harm? Here, the probability
of the risk was high/low b/c..3.The difficulty and expense of eliminating the risk: Would it
have been easy and cheap for D to act more safety? Here..4.Other conflicting priorities: Did
D have other conflicting priorities that prevented it from eliminating the risk? Did D have a good
reason to do the risky act? As discussed above, the magnitude and probability of the
risk is.. its easy/difficult & cheap/expensive to eliminate the risk, as well as
competing responsibilities. Thus, a ROCP would have, but D didnt act like
this. Hence,D breach the DOC/ breaches the SOC.
C: D failed to act as a ROCP would have in the same circumstance and D breached a DOC to P.
Conclusion:P can successfully sue D for negligence for everything except for(stolen
money, lost purse,etc).
6) MONEY DAMAGES
The court will try to make the defendant the amount of money damages that
would put the plaintiff back in the position he was in before he was injured by
the defendant. (1) Medical expenses (medical bills, rehabilitation expenses)
(2) Lost income (3) Property damages (4) pain and suffering, loss of enjoyment
of life (5) Lost profits.
7) VICARIOUS LIABILITY
The legal issue is whether employer is responsible for the employees negligence. R: The law says
that the employee was vicariously liable for the employees negligence if that negligence happened
within the scope of employees employment, considering the following factors for employee: On
the clock-during time working; at his place of work or out related to work; appear in process
of work (wear uniform, com logo); was activity a part of his job? (Most important factor).
In conclusion, employer will have vicarious liability for employee negligence. (Steven : what
employment want employee to do)
DEFECTIVE GOODS
There was no contract between [...and..], so [...] cannot sue for breach of
contract. However, it was an unsafe product which caused [injury/death to]
OR [property damage/ destruction]. Hence, the legal issue is whether [.] can
successfully sue [.] for defective goods.
In order to claim for defective goods, [.] must prove these elements.
1)A manufacturer: Under ACL (sec. 71), there are many different types of
manufacturer: grower, extractor, producer, processor, assembler, own brander
and importers. [Explain]
(*)grower: farmer who grows plans; extractor: honey, milk, oil, gas, diamonds,
gold; producer; assembler: take components manufactured by others and
assemble them into a finished product; own brander: if a company doesnt
make a good itself, but it puts its own brand, name or logo on it and sells it as
if it were its own goods; importer: if the actual manufacturer is located outside
of Aus and does not have an office or store in Aus >>>>sue importer
2)Supplies goods: Which means providing a physical and tangible productnot merely a service (but gas and electricity are considered as goods). Here,
[] supplied its goods [name] (tangible product), which can be touched by
consumers.
4)The goods are defective: Under ACL (sec 9(1)), Goods are defective under
the ACL if their "safety is not such as persons are generally entitled to expect."
Safety refers to capability of causing personal injury or death to a person, or damage /
destruction-of-property.
To decide whether the safety of a good is what persons are generally entitled to expect,
we must consider all of the relevant circumstances, including
+Instructions & warnings: Did the good include proper and adequate
instructions/warnings? If a good is unsafe unless it is used properly, or
assembled properly, and the manufactory does not include any instructions
telling the customer how to use or assemble the good- or includes the
instruction in a foreign language, then that may make the good unsafe. If a
good is dangerous if used properly, the manufactory may also need to include
a warning to make the good safe, e.g. Warning: DO NOT (Glendale
Chemical Products v. ACCC)
+Reasonable expected use: was the consumer using the good in the way
the manufacturer reasonably expected it would be used?
(*) loss from individual injuries (medical expenses, lost income, pain, loss of
enjoyment), loss to the injured persons dependants (child, spouse) because
of the injuries, loss from destruction or damage of personal, domestic or
household goods, loss from destruction or damage of private land, buildings or
fixtures
(1) the defect did not exist at the time the manufacturer supplied the good,
(2) the good is defective only because of compliance with mandatory
government standards if the manufacturer follows the govs requirements
and the good is defective
In conclusion, [.] can successfully sue [.] for defective goods. A court
would award [.and some additional compensation for pain and suffering].
Supposing [.] is found to be [..%] at fault, he will only recover [.] due
to his contributory negligence.
CONTRACT FORMATION
Under common law, a contract is a legally binding and enforceable agreement.
4 Elements of a contract formation: 1) Intention to be bound/ Intention to
create a legal relationship, 2) Consideration, 3) Capacity, 4)
Agreement Offer and Acceptance.
1) INTENTION TO BE BOUND/ INTENTION TO CREATE LEGAL
RELATIONSHIP
R: Elements: -Agreements that are obviously social in nature are not normally
intended to be contractual and so the parties do not likely have the intention to
be bound. However, even though family, if there was economic seriousness,
there was legal intention.
2-Agreements that are obviously commercial in nature usually are contractual
and the parties usually do have the intention to be bound. However, in some
situation, there was no legal intention.
Wakeling v. Ripley sister giving up jobs and house which are valuable and
important to taking care of brothers house. Therefore, although it is social
agreement, the action proves the intention to be bound
2) CONSIDERATION
Under comm law, consideration is that the offeree must give up something of
value in exchange for the promise of the offeror (both parties must give up
something of legal value). Consideration comes in 4 forms: 1) Money, 2)
Goods, 3) Services, 4) Legal Right
In this case, we need to determine whether there was a contract b/w
.and. According to the rule, [consideration.]
Consideration cannot be past
Consideration cannot be something the offeree already did before the time the
promise the offeree seeks to enforce was made the offeree must give up
something new of value either at the time or after the time promise was made
(Roscorla v. Thomas) Executory consideration promise for promise, Executed
consideration act exchange for a promise.
Consideration does not have to be adequate
The consideration must have some legal value, but it can be very low in value
[explain the value]
Food wrapper (Chappell & Co. v. Nestle), peppercorn rent (Thomas v.
Thomas), giving up a right to sue (Wigan v. Edwards)
Consideration must be sufficient
The consideration cannot be doing something that the offeree already had an
existing duty/ obligation to do. (Stilk v. Myrick)
2 common situations applied this rule: re-negotiating a debt or renegotiating a contract.
Conclusion of consideration: Therefore, [.] gave merely past/insufficient
consideration in exchange [.promise/offer], which was a bare promise/offer
unsupported by consideration. Consideration is required for a valid contract,
so no contract was formed and [.] OR Therefore, [.] provided valid
consideration in exchange for [..offer/promise]. Bs offer/promise was
binding and supported by consideration from [.]. A contract was formed,
and [.]
Facey)
RULES OF OFFER
1) Offers must be clear and complete: contain all key detail: subject
matter of the offer, quantity and price
2)Offers must be communicated to the offeree - offeree was aware of
the offer
3)Offers can be revoked by the offeror any time before acceptance.
The offerors revocation must be communicated to the offeree to be effective.
Revocation does not have to be communicated to the offeree directly by the
offeror. It can be communicated to the offeree by a 3rd party (Dickinson v.
Dodd)
(*) Rejection: must be communicated the other party is aware of it.
Rejection occur by: a) Express rejection, b) Implied rejection by conduct
inconsistently with accepting the offer, c) A counteroffer which
terminates the original offer because it is a rejection with a new offer.
(*) Terminate: when an offer is terminated, it cannot later be accepted
(Hyde v. Wrench). An offer can be terminated by a) Revocation, b)
Rejection, c) Lapse of time either specified in offer or a reasonable
amount of time, d) Death of either party before acceptance.
2)
3)
[.] attempted to exclude/ waive its liability for [certain things, statement].
In order for exclusion/ waiver clauses to be valid, REASONABLE NOTICE that
the exclusion clause existed, must be given at the time the parties entered
into the contract. To determine whether the exclusion clause is valid, we need
Le Mans Grand Pix v. Iliadis-document, Causer v. Browne-receipt. Exstay in the hotel few times.
As analysis, the exclusion clause was valid because reasonable notice was
given to all parties.
Breach of contract
A contract may be terminated by (brought to an end and realising the parties
from further obligations under the contract): performance, agreement,
frustration, breach and rescission.
DISCHARGED BY PERFORMANCE:
1.The parties must perform their contractual obligations exactly
If they are not the contract will be terminated. If the contract says
that the performance must be completed within a certain period of
time, the parties must perform fully within this amount of time. If not,
the performance must be in a reasonable time period. (Sumper v.
Hedge The court said that D had not yet fully performed its contractual
obligations so P didnt have to pay the D until the house was 100%
complete.
2. If the contract does not specify the amount of time for performance, the
performance must still occur within a reasonable time
BREACH OF CONTRACTS:
The parties fail to perform fully and discharge his obligations by:
Duress exists when one party uses illegitimate pressure to force the other
party to enter the contract against their will. The pressure can be physical,
economic or psychological pressure, but it must be illegitimate (not legal or
not appropriate) (Barton v. Amstrong). The target of the illegitimate
pressure does not have to be person signing the contract it can be someone
else with a close relationship with that person like a family member, near
relative or someone close.
Scolio Pty Ltd v. Cote not illegal or illegitimate not duress
REMEDY: contracts made under duress are voidable by the
illegitimately threatened party (the party forced to sign the contract).
2) UNDUE INFLUENCE
The legal issue is whether B unduly influenced A to enter the land sale contract
Undue influence occurs when a party enters into a one sided contract only
because that party trusted the other party so much because of their special
relationship that they entered into the contract solely based on their trust of
the other party not based on their own free will or judgment and without
receiving any other independent advice.
(a) With a special relationship (parent-child, lawyer-client, doctor-patient,
preacher-church member), the court presumes undue influence exists. In
this case, the defendant must prove undue influence does not exists by
disproving:
(1) A party enters into a one-sided contract cannot disprove
(2) Because the party trusted another party so much that they entered
into the contract cannot disprove
(3) Without the free exercise of their own will or judgment and without
receiving any other independent advice cannot disprove
(*) ordinary business relationship is not a special relationship
(b) No special relationship the court does not presume undue influence,
thus, to claim undue influence exists, the plaintiff must prove these 3
elements:
(1) The contract was one-sided
(2) The entry into the contract was not because of their own independent
will and judgment and was instead because of the other partys
influence over them
(3) The party claiming undue influence received any independent advice
REME: the weaker party can have the contract seat aside as void, return
good and money paid
3) UNCONSCIONABLE DEALING
The legal issue is whether the contract between X and David was unconscionable.
The court usually assumes that the parties to a contract are equals, have
equal bargaining power. However, a contract is unconscionable (Commercial
Bank of Australia v. Amadio) if
1) One party has superior bargaining power vd: (international university vs. poor
rice farmer)
(1)
(2) The other party has special disability (poverty or need, physical or mental
sickness, age very young or very old, drunkenness, illiteracy, lack of
education, lack of assistance/explanation)
(3) The parties enter into a unfair, one-sided, take-it-or-leave-it contract
REMEDY: the weaker party can have the contract set aside as void,
4) MISTAKE
Sometimes, one or both parties to a contract have really made a genuine
mistake about a key part of the contract.
COMMON MISTAKE (compared with Frustration)
Both parties to the contract made the same mistake. A common mistake
must exist at the time the contract was made. The common mistake
must be extremely fundamental to the subject matter of the contract. a)
The identity, the existence or the ownership: whether the subject matter
of the contract has been destroyed or does not exist (Couturier v.
Hastie), b) Nothing to sell (Scott v. Coulson).
If
Each party to the contract made mistakes about key parts of the contract,
but each party made a different mistake (Raffles v. Wichelhaus)..
[explain]. Thus, there was no binding contract because [.] and [.] each
intended to contract about different terms. No meeting of the minds
REMEDY: the contract is void and unenforceable by either party,
return goods and price paid
UNILATERAL MISTAKE The legal issue is whether the contract
between A and B is voidable due to unilateral mistake
Only one party was mistaken about a key part of the contract and the
other party knew or should have known about that mistake (Taylor v.
Johnson). Here, [.made mistake about]. While [.knew it, explain]. OR
[.should have known this mistake because based on objective test, a
reasonable person.]
REMEDY: the contract is voidable by the innocent party who made the
unilateral mistake. It can be enforced against the party who knew about the
mistake party.
5) ACTIONABLE MISREPRESENTATION
The legal issue is whether P can rescind the contract with RMIT
due to actionable misrepresentation by D
Actionable misrepresentation exists when one party makes a false statement
of material fact which is addressed directly to the other party and which
induces the other party to enter into the contract (Alati v. Kruger). We need
to consider these 4 elements to decide whether an actionable
misrepresentation exits.
4)Inducement the other party likely would not have entered the contract if
the false statement had not been made
(*) Silence does not usually equal actionable misrepresentation but it can in
each damage]
Direct loss [explain why RF]
2) Equitable remedies
Here, there were no contractual damages, so we need to consider equitable
a)
remedies.
Specific performance
To generate a fair result, the court will order the breaching party to
perform what he agreed to perform under the contract-specific
performance. However, specific performance is only available when the
subject matter of the contract is unique (real estate). [explain]
(*) It is not available if the contract is for personal service
b)
c)
The legal issue is whether A breached any implied terms under the
Australian Consumer Law (ACL) in the contract with B
Under the ACL all "consumer goods contracts" contain certain
implied terms. First we determine whether a consumer goods
contract exists, and if so, next we determine which terms were
implied and remedies for the breach of those terms. Three
elements required for a consumer goods contract are:
CONSUMER SERVICES CONTRACT
either
Ordinarily for personal, domestic, or household use. Even if it is not
actually being used in that way at the time (for business/ commerce
purpose)
b) The total price of the service is $40,000 or less
These 3 elements are satisfied, a consumer services contract existed between
them. Thus, according to ACL implied terms will be applied.
1) The service shall be provided with due care and skill (sec 60) provide well
service as other firms in industry
2) If the person supplying the service is made aware that the service has been
requested for any particular purpose, that the service shall be fit for
intended purpose (sec 61).
(*) The guarantees under the ACL cannot be excluded, limited or modified in
any way (sec.64 (1)), EXCEPT
A company may limit its liability under a consumer service contract to the
cost of re-supplying the services they are not ordinarily for personal,
domestic or household use (sec 64A). But such a limitation must be fair
and reasonable (sec 64(1)).
Providers of recreational services which involving some forms of risk (skiing,
football, bungie) can include an exemption clause in their contracts to
purpose)
The total price of the good is $40,000 or less
1)
2)
3)
4)