Nature of Tort Law
- The first issue according to the facts of the case study is that whether Rebecca can make a claim against Sonia for the negligent misstatement made by her under the law of negligence
- The second issue according to the facts of the case study is that whether Bean and Gretta can make a claim against Dan and/or Julia for the injuries caused to them under the law of negligence.
The Civil liability Act 2002 is the legislation which governs area of tort law. Negligence can be stated as and action which a reasonable person would not do or an omission which would be done by a reasonable person. Tort can therefore result out of both actions and omissions. Negligence can be established by relying upon three steps which are based on the elements of negligence.The first step is based on duty of care, the second step is based on the breach of Duty of care and the third step is based on causation.
The case of Donoghue vs Stevenson 1932 AC 522 and Section 5B of the CLA discuss provisions related to a duty of care. In combination of the section and the case law a duty of care is present when a person can cause harm to another person foreseeably if reasonable care is not taken.
The case of Bolton v. Stone [1951] AC 850 and section 5B (2) of the legislation provides the standard of care which has to be insured in order to not reach the duty identified above. The objective test specifies that when a person is not taking reasonable care like a reasonable person would have taken in similar situation to avoid injury so caused the duty of care is breached. The legislation specifies that reasonable action depends upon the probability of the injury, the seriousness involved in the injury, the social utility of the activity leading to the injury and burden of taking precautions for the defendant.
The “but for” test used in the case of Barnett v. Chelsea & Kensington Hospital [1969] 1 QB 428 and Section 5D of the Act discusses principles of causation. The combined effect of the test and the legislation provides that particular harm has been caused by the negligence comprises of elements of factual position and scope of liability. This means that the harm has to only result because of the negligence and not otherwise.
In the case Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 36 ALR 285 the court stated that the defendant were negligent as they failed to provide proper advice to the plaintiff which resulted in financial loss cost to them. In this case it was clarified that the duty of care will be present if the advice was provided in professional context, the person giving the advice had knowledge that his advice would be acted upon and it was reasonable for the person who received advice to act upon the advice. In addition as per the case of Pacific Acceptance Corporation v Forsyth (1970) 92 WN (NSW) 29 the standard of care of a professional giving advice is compared to that of a professional person not a reasonable person to analyze breach.
Interests Protected by Tort Law
The defence of contributory negligence has been provided in the case of Mak Woon King v Wong Chiu [2000] 2 HKLRD 295 and is also discussed in the Civil liability act section 5S. Contributory negligence is a partial defence signifying that the liability is not eliminated but is only reduced. The relative percentage of responsibility is determined by the court with respect to Section 5S of the act. This is the situation where the plaintiff has not taken the standard of care based on a reasonable person to prevent the injury caused to them and contributed to the same.
In the present situation Sonia had provided professional advice to Rebecca. According to the principles of the case of Shaddock & Associates Pty Ltd v Parramatta City Council the defendant were negligent as they failed to provide proper advice to the plaintiff which resulted in financial loss cost to them. In this case it was clarified that the duty of care will be present if the advice was provided in professional context, the person giving the advice had knowledge that his advice would be acted upon and it was reasonable for the person who received advice to act upon the advice. Therefore Sonia owes duty of care to Rebecca. The duty of care has been breached as for the principles of the case of Pacific Acceptance Corporation v Forsyth which provides that the standard of care of a professional giving advice is compared to that of a professional person not a reasonable person to analyze breach. A professional person in the position of Sonia would have ensured that she had analysed the financial condition of Rebecca properly and have not based decision on astrological cards. The Loss would not have been suffered by Rebecca in case and negligent advise was not provided by Sonia. Therefore in the present situation Sonia is liable for the loss caused to Rebecca under the law of negligence.
In the present situation, Dan have provided Bean and Gretta with the cycles, so he has a duty of care as a defective cycle would have caused injury to them as per the principles of section 5B and the case Donoghue v Stevenson. The duty of care was Breached as a reasonable person would not give a cycle without having front and rear reflector as per section 5B (2). However, injury would have been caused to Bean and Gretta even if a proper cycle had been provided by Dan as they were not wearing reflective clothes and Julia did not have attention on the road. Does Dan is not negligent. Julia also had a duty of care towards Bean and Gretta. A reasonable person position of Julia would not be texting while driving. Julia has breached the duty of care. Causation has also been satisfied. This is because if Julia had her attention on the road she would have been able to see them and avoid the accident. Thus she is negligent. However, Bean and Gretta have not complied with the warning provided by Dan that they should not go on the Freeway with cycle. This is not only voluntary assumption of risk by ignoring the warning sign but also contributory negligence. In the given situation they cannot make a claim from Dan but from Julia. However the damages from Julia would be reduced based on contributory negligence.
Essentials of the Tort of Negligence
Conclusion
- Rebecca can make a claim from Sonia
- Bean and Gretta cannot make a claim from Dan but from Julia. However the damages from Julia would be reduced based on contributory negligence.
- The first issue in this section of the paper is that whether a valid contract has been formed between Bruno and Sarah
- The second issue in this section of the paper is that whether Bruno has the right to make a claim for free service and petrol
- The final issue in this section of the paper is that whether Jeff has the right to decline the repair work
A contract can only be formed when its elements such as offer acceptance and consideration have been satisfied.
An offer can come to an end if the time of the offer has been elapsed. In addition until an offer is in effect it is open to be accepted by the person to whom it has been made. In order to ensure that an offer has been withdrawn effective revocation has to be provided. The case of Byrne & Co v Tienhoven (1880) LR 5 CPD 344 discussed rules for revocation of an offer effectively. The case stated that an acceptance can be made until an offer has not been revoked. In the same way the revocation also has to be done before acceptance. Revocation is only valid when the offer successfully notifies the offer that he wishes to revoke or withdraw the offer before acceptance.
In the case of JJ Savage & Sons Pty Ltd v Blakney [1970] HCA 6 it has been stated by the court that collateral contract can be formed between the parties if such contract was main reason by which the main contract has been entered into. There must be intention on the part of the person making the statement that the statement would be relied on to get into the contract. The person to whom the statement is made also has to rely on the statement to get into the contract. The Collateral contract must not be supported by any past consideration.
In the case of Walton’s Stores Ltd v Maher (1988) 164 CLR 387 the court discussed the issue of the situation where a party had acted in a way as to make the other party believe that there was a contract. In the given situation that defendant had negotiated the contract with the plaintiff in terms of which the plaintiff was to demolish a building on a plot of land and build a new one and lease it to the defendant. Permission was given by the defendant to the plaintiff to carry out the demolition work, stating that they would purchase the land. After the demolition had begun and having knowledge of the same the defendant decided not to go forward with the purchase. The court in this case stated that it was reasonable to the plaintiff to believe that there was a contract between the parties and thus the doctrine of promissory estoppel would intervene.
Test of Reasonable Foreseeability in Relation to the Duty of Care
In relation to the contract with Sarah a valid offer had been made by her which was to stay in effect 48 hours from the time it was made. The offer would be converted into a contract if it would be accepted by Bruno within the time otherwise it would lapse by time. However Sarah has already sold the items to another person for a higher price. According to the principles of the Byrne & Co v Tienhoven case an acceptance can be made until an offer has not been revoked. In the same way the revocation also has to be done before acceptance. Revocation is only valid when the offer successfully notifies the offer that he wishes to revoke or withdraw the offer before acceptance. She has not revoked the offer effectively. The offer was still available for Bruno to be accepted, which he did within time. Therefore in the present situation Bruno has the right to sue Sara for the breach of contract and claim specific performance which would ask her to sell the items to Bruno
In relation to the contract for the purchase of the truck it can be stated that Bruno attempts to formulate a Collateral contract. As per JJ Savage & Sons Pty Ltd v Blakney there must be intention on the part of the person making the statement that the statement would be relied on to get into the contract. The person to whom the statement is made also has to rely on the statement to get into the contract. The Collateral contract must not be supported by any past consideration. In the given situation before he was about to sign the contract irrespective of the promise for additional petrol and free repair. There was no intention to rely in the terms to get into the main contract. In the given situation it can be stated that there is no Collateral contract. This is because the additional petrol and repairs were not intended to have been relied on by Bruno to get into the main contract of purchase in the trucks. Therefore no Collateral contract is formed between the parties.
In relation to the third issue it can be stated that Jeff cannot deny Bruno from carrying out the repair work under the doctrine of promissory estoppel. This is because through the application of the case of Walton’s Stores Ltd v Maher it can be stated that where there was one party intended to make the other party believe that there was a contract promissory estoppel would intervene. Thus, as Bruno was convinced from the actions of Jeff that there was a binding contract between them, and Jeff had knowledge about the repair work, he would be estopped from not letting Bruno continue the repair work.
In conclusion it can be stated that:
- Bruno has the right to sue Sarah for the breach of contract and claim specific performance which would ask her to sell the items to Bruno
- Therefore no Collateral contract is formed between Bruno and the truck seller
- Jeff would be stopped from not letting Bruno continue the repair work
References
Barnett v. Chelsea & Kensington Hospital [1969] 1 QB 428
Bolton v. Stone [1951] AC 850
Byrne & Co v Tienhoven (1880) LR 5 CPD 344
Civil liability Act 2002 (Nsw)
Donoghue vs Stevenson [1932] AC 522
JJ Savage & Sons Pty Ltd v Blakney [1970] HCA 6
Mak Woon King v Wong Chiu [2000] 2 HKLRD 295
Pacific Acceptance Corporation v Forsyth (1970) 92 WN (NSW) 2
Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 36 ALR 285
Walton’s Stores Ltd v Maher (1988) 164 CLR 387
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