Doctrine of Precedent and Hierarchy of Courts
The issues in this case are that-
- Whether Maria can claim damages for breach of civil liability against Amelia.
- Whether Nathaniel can sue Dan for negligence.
foreseeable by any reasonable person. In this regard, Section 9 states that if the person had knowledge regarding the nature of the harm then he would have taken proper care and precautions on his part. It was observed in Dick Bentley Productions v Harold Smith Motors [1965] 1 WLR 623 that during the pre-contract stage, one of the parties to the contract was aware of the consequences however; it was not informed to the other party. Section 11 of the Civil Liability Act 2003 deals the decisions regarding contravention of duties. According to Section 11, if a breach of duty is caused on the part of an individual as a result of injury or factual causation then such individual is liable for the harm caused to the other person which was held in Waverley Municipal Council with Swain (2003) NSW CA61. According to the provisions of Section 12, the onus of proof lies with the plaintiff. Therefore, the plaintiff is at the obligation to identify the nature of the harm and verify it with the existing reality of that causation. The provisions of Section 14 deals with individuals suffering harm who are presumed to have knowledge regarding the nature of the risk. In this regard, it is worth noting that in case if there is an action violating the duty of injury, then it is important on the part of the defendant to prevent the harm from causing. In some cases, the plaintiff may not have knowledge regarding the nature of the risk however; it is important that he must prove it. It was held Asiansky Television plc and another v Bayer-Rosin (A Firm) [2001] EWCA Civ 1792 that the plaintiff was not aware of the nature of the risk however; he took measurable grounds to prove that the nature of the risk was such to cause harm. The provisions of Section 15 of the Civil Liability Act 2003 states there is no proactive duty to inform about the nature of the obvious risk. The provisions of Section 15 states that if an individual do not warn the other party about the obvious risk and the nature of the harm then it can cause serious injury to the victim. It was held by the Court in Jaenke v Hinton (1995) QCA 484 that if the nature of the accident was caused as a result of an obvious risk, then the claim for damages shall fail because the nature of the risk proved to be so obvious that it no longer can be treated as a threat. However, it shall not apply to cases if the personal injury is caused on the part of a professional and that the petitioner is an expert which was held in Woolworths Ltd v Lawlor [2004] NSWCA 209. Section 17 of the Act is applicable in cases related to liabilities in negligence causing serious harm to persons caused as a result of dangerous recreational activities. However, it is important on the part of the plaintiff to be engaged in such recreational activities. Section 18 defines the meaning of the dangerous recreational activity. According to the provisions of Section 18, dangerous recreational activity can be defined as an activity in which the individuals engage for the purpose of enjoyment and relaxation however; such activity causes serious risk or considerable physical harm to the person involved. Section 19 states that an individual is not liable for negligence in cases which involves harm suffered by a person resulting from obvious risk of a dangerous recreational activity engaged in by the sufferer. In Campbell v Hay (2014) 129 it was held by the Court that if the injury was caused as a result of participating in a recreational activity which any reasonable person would consider being dangerous, then the person suffered as a result of harm cannot claim for damages.
Sources of Australian Law
Section 9 can be referred in case of Maria as she was aware of the consequences of the harm that could cause if she did not pay the borrowed amount on time. However, the nature of the risk in Maria’s case was such as it could be foreseeable by any prudent man and therefore in spite of all these she relied upon the advice given by Amelia. Section 11 can be applied in the case of Amelia as she was aware of the fact that any negligence on her part can lead Maria in huge loss. Section 15 can be referred in this case as Amelia has not warned Maria about the injury related to the recommendation. Therefore, in this regard, Amelia cannot escape liability as the personal injury caused to Maria was as a result of an advice from a professional expert. Section 12 can be applied in the case of Maria as the onus of proof lies with her.
Section 17 and 18 can be referred in the case of Nathaniel as the provisions deals with the subject of dangerous recreational activities. It is evident that Nathaniel was aware of the fact that riding along the freeway is not safe and can cause serious injury. In spite of knowing the consequences he decided to ignore Dan’s advice and even the messages on the notices and therefore, opted for the freeway ride. Section 19 can be referred in case of Dan as he had previously warned Nathaniel about the consequences of the activity. Therefore, Dan cannot be held liable for the injury caused to Nathaniel.
In the conclusion it can be stated that Maria can sue Amelia for breach of civil liability. Nathaniel cannot sue Dan for negligence.
Issue:
- Whether Jay can sue Rosita for breach of contract.
- Whether Jay has any liability against Jeff for failing to keep his promise.
- Whether Jay can take any action against Nacho for revoking the lease agreement.
- Whether Jay’s parents is bound to any contractual liability.
According to the Australian law of contract in order to form a valid contract between two or more parties it is important that there must be valid offer and acceptance (Horrigan, 2017). However, in some cases, the offer can be terminated by the other party before the expiration of the period. An offer can be terminated by revocation, failure to accept the offer on time, death, failure of condition and rejection. An offer can be terminated by way of revocation before the acceptance even if there has been a promise on the part of the individual offering the deal which was observed in Financings Ltd v Stimson [1962] 3 All ER 386. It is important for the person offering the deal to make it available until a particular period unless there has been an involvement of consideration in such promise. The parties intending to revoke the contract should convey the information within the stipulated time which was held in Ramsgate Victoria Hotel v Montefiore (1866) LR 1 Ex 109. For a valid revocation and effective communication is necessary which was held in Byrne v Van Tienhoven (1880) LR 5 CPD 344. In this regard, the exceptions involved with the revocation of offer can be emphasized that are-
- Option contract:It is the promise made by one of the party to keep the contract available within a stipulated period of time. However, if the person making the offer revokes the contract t before the specified time then he can be sued for breach of contract.
- Reliance: Reliance is applicable in cases when the recipient was relying upon the offer which was made available within a specified period. However, if the contract is revoked before the stipulated period it shall be injustice for the other party.
Rules of Statutory Interpretation
Consideration can be defined as the price which is paid by the promisee to the promisor in exchange of a promise Kraakman & Hansmann, 2017). It is important that the consideration should come into force after the promise has been made which was held in Roscorla v Thomas (1842) 3 QB 234. It is important that there must be an Existing Duty Rule which states that it does not make a good consideration if one is bound by the original promise. It is necessary that the other person should comply with the new promise if a new consideration is offered for the same which was held in Stilk v Myrick [1809] EWHC KB J58.
According to the law of contract, negotiations in contract can result into binding agreements. In this regard, it is worth stating that in some cases, pre-contractual negotiations may end into binding agreements even though no contract has been duly signed on the part of the parties (Passera, Haapio & Curtotti, 2014). In Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21 it was observed that both the parties agreed to the lease agreement by communicating through email. It was held by the Court that they were immediately bound by an agreement of lease though no formal legal document was signed. In Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119 the negotiations were made verbally and no formal contract was signed for lease agreement.
A contract of guarantee can be defined as the promise or discharge of liability in case the other person fails to perform his duties (Weber & Staiger, 2014). The person providing the guarantee is the guarantor and the person to whom such guarantee is provided is the creditor. In order to make the guarantor liable for the agreement, it is important on the part of the guarantor to sign the relevant documents in order to make the guarantee enforceable. However, it is important that the agreement must not be signed by the guarantor by way of fraud or misrepresentation which was held in London General Omnibus Co v Holloway [1912] 2 KB 720. The Court is at the authority to refuse enforcement of guarantee if it appears before it that the guarantor has signed the agreement without prior knowledge on the nature and the consequences of it.
In case of Jay and Rosita, it can be stated that Rosita has revoked the contract before the stipulated period. In this regard, the exceptions of open contract can be applied. It is evident that Jay relied upon the offer made by Rosita which was made available within 24 hours. However, Rosita revoked the offer much earlier before Jay could accept it.
In the agreement between Jay and Jeff contained a valid consideration which made them legally binding. The case of Roscorla v Thomas (1842) 3 QB 234 can be refered which comprises an Existing Duty Rule stating that an old consideration is not a valid consideration. Similarly the case of Stilk v Myrick [1809] EWHC KB J58 can be applied so that Jay could bind himself with a new promise along with a new consideration.
It can be stated in the case of Jay and Nacho that though there was no signed lease agreement between them. They were binding into the lease agreement as there existed pre contractual negotiations between them and have verbally agreed to the contract.
In case of Jay’s parents, it can be stated that they were unaware of the nature of the agreement and therefore Ricardo induced them to sign the agreement of guarantee fraudulently. The case of London General Omnibus Co v Holloway [1912] 2 KB 720 can be applied in this regard.
Conclusion:
It can be finally concluded that-
- Jay can sue Rosita for breach of contract.
- Jay is not liable to sue Jeff for failure to keep the promise.
- Jay can sue Nacho for terminating the lease agreement.
- Jay’s parents are not binding upon any contractual liability to the Com Bank.
References::
Asiansky Television plc and another v Bayer-Rosin (A Firm) [2001] EWCA Civ 1792.
Byrne v Van Tienhoven (1880) LR 5 CPD 344.
Byrne v Van Tienhoven (1880) LR 5 CPD 344.
Dick Bentley Productions v Harold Smith Motors [1965] 1 WLR 623.
Financings Ltd v Stimson [1962] 3 All ER 386.
Jaenke v Hinton (1995) QCA 484.
London General Omnibus Co v Holloway [1912] 2 KB 720.
Ramsgate Victoria Hotel v Montefiore (1866) LR 1 Ex 109.
Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119
Stilk v Myrick [1809] EWHC KB J58.
Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21
Woolworths Ltd v Lawlor [2004] NSWCA 209.
Horrigan, B. (2017). Governance, Liability and Immunity of Government Business Enterprises and Their Boards. In From Bureaucracy to Business Enterprise (pp. 143-171). Routledge.
Kraakman, R., & Hansmann, H. (2017). The end of history for corporate law. In Corporate Governance (pp. 49-78). Gower.
Passera, S., Haapio, H., & Curtotti, M. (2014). Making the meaning of contracts visible–Automating contract visualization.
Weber, R. H., & Staiger, D. N. (2014). Cloud computing: a cluster of complex liability issues. European Journal of Current Legal Issues, 20(1).
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