Part A: Law of Contract
Through this presentation I would like to bring to you kind notice, the two most promising laws that prevails in Australia, That is, the law of contract and the law of negligence.
Solution 1 of the Assignment deals with the law of contract and solution 2 of the assignment deals with the law of negligence.
Factual situations are provided in both the questions which are analyzed and resolved by applying the legal principles.
So, Now,
In Question 1, the basic facts that are provided is that Vending Machine Pty Ltd owns a vending machine. Kenny wants a drink. Kelly could not resist. She checked the price and inserted the coin in the machine and pressed the button. The payment is accepted by the machine but it did not gave the drink to Kelly.
The major issue that arise was whether a contractual relationship exists amid Kelly and the vending machine owned by Vending Machine Pty Ltd?
To resolve the issue, the law of contract was analyzed.
It is found that in Australia, people who want to establish contractual relationship with each other must make sure that all the contractual elements must be complied with.
An offer is the first element. An offer is the term which is made by an offeror with a hope of confirmation by the offeree. The offeror intend that the desires which he wants to be complying with must be acted by the offeree as per his whims and wishes.
An offer can be made in oral form or in written form or partially oral or partially written or an offer can be made by implication. Whatever may be the mode of an offer it is necessary that the offer so made must reach the intending party.
Now, an acceptance is the confirmation which is made by the offeree against the terms of the proposal which are communicated to an offeree by an offeror. It is necessary that an acceptance when made must be made in such a manner so that it is reciprocates to offer, so, they must be the mirror image of each other.
At this stage I would like to submit that when the parties make a valid offer and acceptance then there is an agreement between them.
It is now time to bring a distinction amid an invitation and an offer.
There are times when a person making a proposal is not making an offer but is seeking offers from the public to whom the proposal is made. This is called an invitation to treat. In invitation, the person is inviting the people to make an offer to him and which when is confirmed by the inviter results in a binding relationship between the parties.
For instance, an advertisement was an invitation; the exhibit of goods is an invitation to treat.
The most important case that is required in order to resolve the issues is Thornton v Shoe Lane Parking (1970) wherein it was held that when the goods are displayed at an automatic vending machine then it is not an invitation to offer rather the same is considered as an invitation to treat.
Part B: Law of Negligence
This case is based on the ruling of another landmark case of Carlill v Carbolic Smoke Ball Co, (1893) where the court held that when any person is making statements to which he makes himself bound and also specifies the conditions on the compliance of which the persons considers himself to be bound then it is not an invitation but is considered as an offer.
Now, it is important that the law must be applied.
It is submitted that the vending machine has displayed that it is selling an icy cold cola. It has also given the slot where the money can be put and the drink can be served.
Thus, the vending machine company has specified the actions that must be taken by the buyer and on the compliance of the same the company is bound to serve the drink to the buyer.
So, Thornton v Shoe Lane Parking law is applied and it is stated that a vending machine is considered to be an offer and Kelly by putting the exact money at the machine has complied with his actions of acceptance. Thus, an acceptance is made by Kelly which resulted in the formation of contract amid the company and Kelly.
So, I would like to conclude that there is a valid contract that is made amid Kelly and Vending Machine Pty Ltd as an offer is made by Vending Machine Pty Ltd which is duly accepted by Kelly by putting the money in the machine. So, since the drink is not served thus Kelly has the right to sue Vending Machine Pty Ltd.
Now, it is time to deal with the facts of question No 2.
Question No 2 submits that the officer in large place a special Jack in a vehicle not specially built to carry it resulting in injury to the other officer.
So, based on these facts the major issue that arose was did the officer in charge is in breach of duty of care in placing a Jack in a vehicle not specially built to carry it?
To resolve this issue, the law of negligence is applied.
In Donoghue v. Stevenson [1932] the court held that a manufacturer of a drink own as a duty of care towards its customers because they are considered to be their neighbors. But to prove negligence there are three elements which are required.
The first is duty of care.
Duty of care signifies that defendant must carry his acts carefully. But it is time to ask whether the defendant should be careful all the time and with all the people. The answer is no.
In Donoghue v. Stevenson, Lord Atkin has tried to resolve the question and it is submitted that any person who can be affected by the omissions and the acts of the defendant without any kind of intervention, then, such plaintiff is at a proximate distance with the defendant and is the neighbors of the defendant and it is against those persons defendants owns a duty of care.
Also, the defendant is duty bound to protect only those plaintiffs who can be reasonably anticipated or foresee by the defendant.
Once the duty of care is enshrined on the defendant then it is his prime responsibility that such duty should be honored by him in every possible manner by complying the level of precautions or the care that is required from him in any scenario.
When this breach of duty results in causing harm to plaintiff which is not remote and which is caused directly because of defendants breach then he is negligent in his actions.
Now, it is time to analyze to apply the law and resolve the issue.
It is submitted that the officer in charge is position at the fire brigade and he is accustomed with all the basic requirements that are needed to comply with when any fire accident.
The officer in charge owns a duty of care against his co-officers mainly because they owns a relationship of proximity and the officers – in- charge can reasonably foresee the presence of officer. So, there exists duty of care on the officer-in-charge to make sure that no action of his must hamper the officer in any manner whatsoever.
Now, it is submitted that a bushfire has a vehicle which is specially modified to handle a large jack which is used in emergency situations. The vehicle being used in another call when a call came through for the use of the special jack at a minor accident close to the fire brigade headquarters. The office –in-charge ask that the jack should be kept in the other vehicle.
Now, it is submitted that,
the officer – in – charge is aware that the jack could not be placed in any other vehicle apart from the vehicle which is modified especially so that the jack can be kept rightly and safely. Knowing the said fact, the officer – in – charge still preferred to carry the jack in the vehicle which is not designed for the same and which may cause any kind of consequences. Thus, the level of care is not met as required from the officer-in-charge. Thus, there is breach on the part of the officer-in-charge.
Now, on the way to the accident scene, the driver braked suddenly at the intersection and the jack shifted injuring one fire officer. Thus, the loss to officer is caused by breach of the officer in charge and the loss is also foreseeable.
So, at this stage it is rightful in concluding rat the officer-in-charge must be held liable for the breach of the duty of care in placing a Jack in a vehicle not specially built to carry
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