Stevenson (1932)
- Rule:In order to be successful in a negligence claim, the plaintiff must prove the three elements of negligence which includes the defendant owe a duty of care, the defendant has breached the duty of care and the breach of duty of care caused the plaintiff injuries (causation) as per Donoghue v Stevenson.
- Application:
- Duty of Care
This case deals with a relationship between other road users (P) and the driver (D) which is an established duty relationship. This means that there is a presumed duty of care owed by Beck to Mick. The neighbour principle is summarised in Donogue v Stevenson which requires that reasonable foreseeability of injury to the plaintiff through the defendant’s failure to take care. The neighbour principle as per Lord Atkin stated that duty of care is owed to “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in action”. The neighbour of Beck are anyone who uses the road which includes Mick who is also driving.
Secondly, the plaintiff may show that the salient features of the case are consistent with the existence of a duty of care owed by the defendant as shown in Sullivan v Moody. Salient features are those factors which the court will take into account when determining whether a duty of care exists. Relevant factors include (a) the nature and degree of Beck’s control over the risk of harm and (b) the degree of Mick’s vulnerability and the reliance on the proper exercise of reasonable care by Beck.
Therefore, the above analysis supports that Beck owed the Mick a duty of care.
- Breach of Duty of Care
A failure by Beck to live up to the standard of care that a reasonable person would adhere to in the circumstances as seen in Wyong Shire Council v Shirt. The objective test is used to determine whether the defendant failed to do what a reasonable person would have done in the same circumstances as established in Imbree v McNeilly. It would be reasonable for Beck to take a precaution step to prevent the car accident from occurring. As to whether Beck has met the reasonable standard, a reasonable person would not have overlooked the fact that her car needs to be checked up before driving. Therefore, the defendant did less than what is expected of an ordinary and reasonable entity.
Furthermore, the court may consider relevant factors to help determine whether breach has been committed such as:
- The probability of harm: Bolton v Stone
The probability of harm is high as the car brake is not working properly due to the car not being used for 2 years and using her phone despite the law and regulation for rode users will cause an accident.
- The likely seriousness of harm: Paris v Stepney Borough Council
The likely seriousness of harm is high as if a person is being hit by a car, they will likely to sustain serious injury and also other financial losses.
- The burden of taking precautions: Latimer v AEC
With knowing that the car needs to be checked up, the defendant shouldn’t have use her car in the first place and also should not have check her phone while driving which is against the traffic law.
- The social utility of the defendant’s activity: Watt v Hertfordshire County Council
The social utility of harm is not related as Beck is just a road user who have to obey the traffic law to ensure the safety of herself and other road users.
Thus, the above analysis supports that Beck did breached the duty of care owed to Mick as the Standard of Care owed by D here is higher because P was driving over the speed limit and not aware of the red light whilst the falsification of the brake.
- Damage and Causation
Causation: It must be proven that the damage was caused by the breach and it is appropriate to extend the defendant’s liability of harm as per s1 of the Wrong Act. In establishing factual causation, the ‘but for’ test is applicable as established in Yates v Jones. But for the actions of Beck’s breach, Mick would not have incurred the physical injury and the medical expenses. The break in the chain of causation maybe established here as she receives a call from her dad warning about driving the old car.
Scope of liability: Moreover, the loss and injury must be a reasonably foreseeable consequence of the defendant’s breach of the duty of care as per Rowe v McCartney and not too remote or far-fetched as shown in Wagon Mound Case. Mick’s injury is not too remote as it is reasonably foreseeable that driving an old car and over the speed limit will harm other rode users. When someone is physically hurt, it is not too remote they will not be able to perform work that is physical, and they will incur financial loss. However, one of the harms sustained by the plaintiff which is his marijuana addiction is too remote as it is not reasonably foreseeable that he would consume the drug to reduce his pain.
Eggshell Skull Rule
The eggshell skull rule is not made out here as there is no evidence that the defendant have a history of previous injury.
Therefore, the above analysis suggests that Beck did caused Mick the physical injuries and loss sustained.
- Defences
The defendant may avoid liability either completely or partially by establishing one of the two defences. Firstly, the voluntary assumption of risk as per Rootes v Shelton. This is a complete defence where the plaintiff had full knowledge and appreciation of the risk and willingly agreed to the precise risk that eventuated. Beck may not claim that Mick voluntarily assumed the risk as he followed the traffic rule effectively (Agar v Hyde). The court will reluctant in granting voluntary assumption as she was already warned of the likely falsification of the car.
The second defence is the contributary negligence as shown in Ingram v Brittan where the plaintiff contributes in some way to their own loss and injury. This is a partial defence where if successful, the liability will be apportioned between the defendant and the plaintiff. Beck may claim that Mick contributed to one if his own injury which is the marijuana addiction which is given by his friend. This increase the likelihood of sharing the liability with the defendant. However, Beck is still responsible for the other injury sustained as he consumed the drug due to his pain from the accident.
- Conclusion:
As all the elements of negligence are established, Beck would be liable to Mick for the loss he has suffered but the claim might be reduced due to one of the defences.
Question 2 – Formation of Contract
- Issue: The legal issue at hand is whether a contract has been formed between Andrew and Tiffany and or Andrew and Natalie.
- Rule: To establish a binding contract, three elements must be proven including agreement (offer and acceptance), intention and consideration as per Carlill v Carbolic Smoke Ball Co.
- Application:
- Agreement (Offer and Acceptance)
An agreement is a meeting of minds and exists when two or more people share understanding and intention. Andrew posted an advertisement to sell his furniture for $2000. This is a definite statement which considers to be an invitation to treat as per Carlill v Carbolic Smoke Ball Co. The appropriate wording of his offer indicates an intention of making an offer.
On March 1, Tiffany respond to Andrew’s offer to buy the couch for $1800. However, this acceptance is conditional upon which she wanted the couch at a different price. Since this acceptance embodies a new term, it amounts to a counter offer, and this destroy Andrew’s original offer (Hyde v Wrench). However, Andrew’s messages Tiffany that the price of the couch cannot be reduced, and it complies with a delivery fee of $100. Tiffany told Andrew that she needs more time to think does not constitute acceptance because it is not absolute and unconditional. Here, an option contract occurs as Tiffany paid Andrew $100 of consideration fee to keep the offer open until 7 March. An option contract is one which is separate from the main contract. It is a contract pursuant to which the offeree pays the offeror an amount of money for the offeror to keep the offer open for a specified time.
On March 3, Tiffany post a letter to Andrew agreeing to buy his couch at the specified price. Under the postal rule, acceptance occurs on the sending of the letter of acceptance (Adams v Lindsell). However, the use of post is not an appropriate means of acceptance here as the offer was made online and communicated by phone. Tiffany’s acceptance therefore occurs when Andrew receives the notice of her acceptance. However, it can be stated that there is a binding contract here as acceptance was made before the offer period consider the consideration fee paid by Tiffany.
On March 5, Andrew accept his friend Natalie’s offer to purchase his furniture for $2000.
This considers as an instantaneous communication between Andrew and Natalie. This also constitutes a revocation of his offer if Tiffany had already accepted it. Max has attempted to communicate his revocation to Tiffany by instantaneous communication which is valid when received. However, Tiffany’s acceptance was made by post on March 3 which Andrew haven’t receive the letter.
- Intention
Tiffany and Andrew relationship is within the business context between the seller and the consumer. The court will presume that it was intended to be legally enforceable: Edwards v Skyways Ltd. But, a promise made to customers in a business context will not be enforceable if the promisor can show that the promise was clearly not intended to be taken seriously by customers. Moreover, the amount of money suggests that Andrew and Tiffany did intend to be contractually bound.
It is shown that Andrew and Natalie are close friends, there may no intention to be bound (Balfour v Balfour). This is a presumption only and may be rebutted (proven to be inapplicable) in the appropriate circumstances: Wakeling v Ripley. The question of intention is objective, looking at the conduct of the parties and not their subjective intentions. The question is what a reasonable person would consider looking at the conduct of the parties. Here, Natalie has already accepted the offer to buy the couch which mean intention is not at issue as they enter into an enforceable contract face to face.
- Consideration
We need to consider whether there is a sufficient consideration to create a binding contract. An agreement is not a contract unless both parties to the agreement have paid, or promised to pay, a price, called consideration as per Carlill v Carbolic Smoke Ball Co.
Consideration is present in which Tiffany paid $100 for the promise to be opened until March 7. On March 3, Tiffany promised to pay $2000 in exchange for Andrew’s furniture. As Consideration is paid by Tiffany, Andrew is not bound to revoke the offer.
In the other transaction, Natalie promises Andrew $2000 in exchange for which Andrew promises Natalie his furniture. There is therefore a binding contract between Andrew and Natalie.
- Promissory Estoppel
The promise by Tiffany to pay Andrew money constitutes sufficient consideration, Tiffany could argue the equitable principle of promissory estoppel as she relied on Andrew’s promise to sell her the couch and it would be unfair in the circumstances for him to break the promise (High Trees v Waltons Stores).
However, this argument would likely not be made out in the circumstances as she didn’t necessarily rely on the promise to her detriment.
- Conclusion:
Andrew entered into two contracts for the sale of his couch, one with Tiffany for $2000 with a delivery fee of $100 and one with Natalie for the same price but without the delivery fee as she picked up herself. In this case, Tiffany is viable in suing Andrew for the breach of contract.
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