Issue
Whether Olivia, Fitz, Huck and Quinn are liable for negligence, or not?
A tort is considered as a civil wrong done by individual. Negligence, in Australia, is considered as a tort. In cases where an individual owes a duty of care to some other individual, and while carrying out certain act or task, this duty is contravened, and the result of such a contravention is injury or loss to the party, to which this particular duty of care was owed, results in negligence (Legal Services Commission, 2013). For the purpose of instituting negligence, three elements have to be present, the duty of care, the contravention of such duty of care, and the resulting harm (Legal Services Commission, 2016).
The governing theory behind the common law of negligence is to make the individual responsible for the acts undertaken by them, which has the potential of posing a harm or threat to the safety of some other individual. For negligence to be present there has to be foreseeability in such a risk, along with this, there has to be presence of direct causation between the contravention of the duty and the resulting harm (The Law Handbook, 2015). Upon establishing the presence of negligence, the party who received the injury or harm, can apply for monetary compensation, apart from applying for the non pecuniary damages in form of the mental or emotional distress (Law Council of Australia, 2006).
An earmarked case in this matter is Donoghue v Stevenson [1932] UKHL 100. In this particular case, the maker was held liable for negligence. One of the ginger beer bottle manufactured by Stevenson contained a dead snail. This bottle was consumed by Donoghue and she fell sick. Stevenson claimed that the liability was of the café owner who provided the bottle and not his. But it was held by the court that the manufacturer owed a duty of care to its customers and hence was liable in negligence for the dead snail found inside the ginger beer bottle (British and Irish Legal Information Institute, 2017a).
In the Wagon Mount case, also known as British and Irish Legal Information Morts Dock and Engineering Co Ltd [1961] UKPC 2, the remoteness of the cause of fire, led to the verdict that the defendant was not required to pay the damages resulting from the fire (H2O, 2016). The defendant was held to have breached the duty of care in Vaughan v Menlove (1837) 132 ER 490 (CP), as he failed to acknowledge the warnings given to him regarding the possibility of a fire, resulting out of the poor ventilation (Commonwealth Legal Information Institute, 2017).
The ability to recover the damages by a plaintiff can be limited by virtue of remoteness, regarding the reasonably foreseeable consequences. In case the damages are held as too remote, the individual would not be awarded damages, even if they result from the negligence of some party (Statsky, 2011, p. 18). Section 5D of the Civil Liability Act 2002 (NSW) contains the provisions regarding the remoteness, in terms of scope of liability (Australasian Legal Information Institute, 2017).
Law
As per the eggshell skull rule, the frailty, i.e., the weakness or delicacy of an injured individual could not be used as a defense in a case of tort (Barnett and Harder, 2014, p. 153). In the case of Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501, a ten year old kid struck his head on the pole of the bus stop while he was landing from the slowly moving bus. Due to this, he developed Ganser Syndrome, which was a rare psychological condition. The pre-disposition of this condition could not be proved from the psychological or physical makeup of this kid. It was argued by the defendant that the illness was a result of the response of the family to the accident. However, the majority was of the view that the accident was the key cause for such reaction as it contributed in a substantial manner, towards the onset of such condition. And hence, foreseeability was present due to the mental illness (Neyers, Chamberlain, and Pitel, 2007, p. 485).
Another defense available in cases of negligence is contributory negligence. When an individual, fails to discharge the duty of care towards them, it is a case of contributory negligence. The result of such contributory negligence is the reduction of the amount of damages awarded to the individual by the percentage of their contribution in such injuries (Dongen, 2014, p. 8). An example of this concept can be derived from the case of Davies v Swan Motor Co [1949] 2 KB 291. In this particular case, the plaintiff was standing at the side of a lorry. This particular action was taken as a contributory factor towards the injuries of Davies. And so, the damages awarded to Davies were proportionately reduced by the court (Swarb, 2016a). As per section 5S of the Civil Liability Act 2002 (NSW), the entire claim of the plaintiff can be reduced if the same is just and equitable thing to do (NSW Legislation, 2017).
In this particular case, both Olivia and Fitz took the freeway, instead of the cycle way to reach the apartment where Olivia lived, just because they were feeling adventurous. The signs regarding danger of riding along the freeway were ignored by both of them. None of them were wearing reflective or fluorescent garments and even the bike of Olivia was missing a red rear reflector. There was an absence of front lights in the bikes. While Olivia was on the phone, Huck’s car collides with Olivia. The negligence on part of Huck to take off his eye off the road resulted in an accident. Hence, Huck would be liable to pay both Olivia and Fitz the damages for the resulting injuries. However, the actions undertaken by both Olivia and Fitz, as highlighted above, depicts the contributory negligence on part of Olivia and Fitz and so, the sum of damages, which would be given to them, would be decreased.
One more point which has to be considered is that Olivia cannot claim that her condition was a result of the accident and so, this defense that the accident resulted in her injury would not be upheld as per Nader v Urban Transit Authority of NSW. This is because Olivia suffered from Osteogenesis Imperfecta, i.e., Brittle Bone syndrome, even before the accident and she further contributed to the injury significantly.
Application
Furthermore, the applicability of section 5S would make the entire claim of Olivia and Fitz as caused by the contributory negligence and no damages would be awarded to them.
Quinn can initiate claims against both Olivia and Fitz, and Huck as their negligence, directly resulted in her losses. However, due to lack of foreseeability of the delay in Quinn reaching Mellie, the claims would not be upheld.
Conclusion
Hence, the claims can be made by Olivia and Fitz and Quinn but none of those would result in any monetary benefits.
Whether Cyrus has any legal remedy under the contract law, or not?
When an agreement contains a promise for which the other party pays the consideration, for doing certain task, it becomes a contract. The formation of a contract necessitates the presence of certain elements. These elements include the offer and acceptance, a consideration, and the intention to form legal relations, in addition to the presence of clarity and capacity (Miller and Cross, 2015, p. 257). A contract can be verbal, where the terms are exchanged orally and written, where the terms are signed on a piece of paper (Mau, 2010, p. 5).
The offer acts as the inception point for any of the contract. One of the parties to the contract has to make an offer to another party. An offer portrays the willingness of entering into the contract by an offering party. It has to be differentiated from an invitation to treat, which portrays the willingness of the parties to negotiate. The advertisements in the newspapers, are generally considered as invitation to treat, as was held in Partridge v Crittenden [1968] 1 WLR 1204 (Swarb, 2016b). Though, in cases of unilateral offer, the same are considered as offer and can be accepted by anyone as was held in Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 (British and Irish Legal Information Institute, 2017b).
One an offer is made, the same has to be accepted by the party to which the offer was made (Helewitz, 2010, p. 28). Further, it has to be accepted as it was made and if any changes are made in the same, it is considered as a counter offer as was held in Hyde v. Wrench (1840) 3 Beav 334 (E-law Resources, 2017a). And as a result of this, the initial offer lapses. The conduct of a being can be used to clarify is the acceptance was given or not, as was held in Brogden v. Metropolitan Railway Company (1877) 2 App. Cas 666 (E-Law Resources, 2017b).
The instantaneous rule of acceptance states that the acceptance is attained when the same is received. However, the postal rules of acceptance are an exception to this very rule. As per these rules, the date of acceptance is taken as the date on which the post is sent, i.e., the date of posting the acceptance letter is deemed as the date of acceptance, instead of the date on which the same is received by the other party (Andrews, 2015, p. 51). Moreover, it remains irrelevant that such a communication is received by the other party or not. The raison d’être behind this is that the postal office is taken to be as being the implied agent of the posting party. Hence, the receipt of the postal office is given the same acknowledgement as the receipt by the other party. As the acceptance was posted, the contract was held as enforceable in the case of Adams v. Lindsell (1818) 106 ER 250 (Swarb, 2016c).
Conclusion
The next element in a contract is consideration. The consideration needs to have an economic value, and can be mutually determined between the parties. In this context, the tree wrappers were accepted as valid consideration in Chappell and Co Ltd v Nestle Co Ltd [1960] AC 87 (E-Law Resources, 2017c). This element is followed by the intention of the contractual parties, to be bound in a lawful manner. Hence, the contracting parties should have the intention of forming legal relations.
There is need for the contractual terms to be clear. The terms on which the contract is based, and this particular points help in establishing the rights or duties of the parties, which are to be clearly stated in the contract. The parties need to have the lawful capacity for forming a contract. Hence, they need to have a legal age and sound mind. The presence of these elements helps in establishing a contract (Kirst-Ashman and Hull 2008, p. 205). In case where one of the parties to the contract, fails to fulfill the promise made under it, it results in a contravention of contract. As a result of this, the aggrieved party can claim damages from the breaching party, in form of monetary compensation and the same can also be as equitable remedies, which could have different forms like rescission, injunction and specific performance.
In case of Cyrus and Rowan, an offer was made through post by Cyrus to Rowan containing certain specific terms of the contract. This offer was accepted through post on September 25th by Rowan. As per the postal rules of acceptance, September 25th will be taken as the date of acceptance. On September 27th, Cyrus called Rowan to cancel the offer, but by that time the contract was already established due to presence of the other elements of contract. The receipt of Rowan’s letter does not matter in this case due to the postal rules of acceptance. Hence, the contract cannot be denied by Cyrus.
In the case of Cyrus and James, an oral offer was made, pursuant to which, a letter was sent on July 26th confirming the representation and this would be deemed as an acceptance on part of James. Moreover, Cyrus acted on the promise made, which further affirms the presence of contract between Cyrus and James. Hence, by denying the new lease, James would breach the contract made.
In the case of Cyrus and Fallacious, the vows of poverty can be deemed as an offer and the acceptance was the entering in the covenant by Cyrus, upon paying a consideration of $ 320,000 AUD. Hence, a contract was formed and fulfilled. The action of Cyrus demanding repayment of this consideration could not be contractually held, as the contract was already performed. Hence, Cyrus has no respite in this case and cannot claim back his money.
Conclusion
To conclude, in matter of Cyrus and Rowan, Cyrus has a legal liability; in Cyrus and James, Cyrus can sue James for breach of contract; but in the case of Cyrus and Fallacious, no claim can be made.
References
Australasian Legal Information Institute. (2017). Civil Liability Act 2002. Retrieved from: https://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/
Barnett, K., and Harder, S. (2014). Remedies in Australian Private Law. Cambridge: Cambridge University Press, p. 153.
British and Irish Legal Information Institute. (2017b). Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1 (07 December 1892). Retrieved from: https://www.bailii.org/ew/cases/EWCA/Civ/1892/1.html
British and Irish Legal Information Institute. (2017b). Donoghue v Stevenson [1932] UKHL 100 (26 May 1932). Retrieved from: https://www.bailii.org/uk/cases/UKHL/1932/100.html
Commonwealth Legal Information Institute. (2017). Vaughan v Menlove. Retrieved from: https://www.commonlii.org/uk/cases/EngR/1837/424.pdf
Dongen, E.V. (2014). Contributory Negligence: A Historical and Comparative Study. Boston: Brill Nijhoff, p. 8.
E-Law Resources. (2017a). Hyde v Wrench (1840) 49 ER 132 Chancery Division (Decided by Lord Langdale MR). Retrieved from: https://www.e-lawresources.co.uk/Hyde-v-Wrench.php
E-Law Resources. (2017b). Brogden v Metropolitan Railway (1877) 2 App. Cas. 666. Retrieved from: https://www.e-lawresources.co.uk/Brogden-v-Metropolitan-Railway.php
E-Law Resources. (2017c). Chappel v Nestle [1960] AC 87 House of Lords. Retrieved from: https://www.e-lawresources.co.uk/Chappel-v-Nestle.php
H2O. (2016). Wagon Mound (No. 1) — “The Oil in the Wharf Case”. Retrieved from: https://h2o.law.harvard.edu/collages/4919
Helewitz, J A (2010). Basic Contract Law for Paralegals, 6th ed, New York: Aspen Publishers, p. 28.
Kirst-Ashman, K and Hull, G (2013). Understanding Generalist Practice, 5th ed, USA: Cengage Learning, p. 205.
Law Council of Australia. (2006). Negligence and damages – personal injury, property damage and pure economic loss. Retrieved from: https://www.lawcouncil.asn.au/lawcouncil/images/LCA-PDF/speeches/20060526Negligenceanddamages.pdf
Legal Services Commission. (2013). What is negligence? Retrieved from: https://www.lawhandbook.sa.gov.au/ch29s05s01.php
Legal Services Commission. (2016). Negligence. Retrieved from: https://www.lawhandbook.sa.gov.au/ch01s05.php
Mau, S D (2010). Contract Law in Hong Kong: An Introductory Guide, Hong Kong: Hong Kong University Press, p. 5.
Miller, P L, and Cross, FB (2015). The Legal Environment Today, 8th ed, Stanford, CT: Cengage Learning, p. 257.
Neyers, J.W., Chamberlain, E., and Pitel S.G.A. (2007). Emerging Issues in Tort Law. Portland: Hart Publishing, p. 485.
NSW Legislation. (2017). Civil Liability Act 2002 No 22. Retrieved from: https://www.legislation.nsw.gov.au/#/view/act/2002/22
Statsky, W.P. (2011). Essentials of Torts, 3rd ed, New York: Cengage Learning, p. 18.
Swarb. (2016a). Davies v Swan Motor Co (Swansea) Ltd: CA 1949. Retrieved from: https://swarb.co.uk/davies-v-swan-motor-co-swansea-ltd-ca-1949/
Swarb. (2016b). Partridge v Crittenden: QBD 1968. Retrieved from: https://swarb.co.uk/partridge-v-crittenden-qbd-1968/
Swarb. (2016c). Adams v Lindsell: KBD 5 Jun 1818. Retrieved from: https://swarb.co.uk/adams-v-lindsell-kbd-5-jun-1818/
The Law Handbook. (2015). Negligence, liability and damages. Retrieved from: https://www.lawhandbook.org.au/10_01_01_negligence_liability_and_damages/
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