common law (icbt)

7/31/2019 Common Law (ICBT)

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Bhakthi Jagodaarachchi Batch 4 Common Law 1

International College of Business & Technology 1

Table of Content

Task One (P1) ................................................................................................................................................ 3

P1.1.1 ........................................................................................................................................................ 3

Simple Contract ..................................................................................................................................... 3

Contract under seal ............................................................................................................................... 3

Signature ............................................................................................................................................... 3

Unilateral contract ................................................................................................................................ 3

Bilateral Contract .................................................................................................................................. 4

Multilateral Contract ............................................................................................................................. 4

P1.1.2 ........................................................................................................................................................ 5

Offer ...................................................................................................................................................... 5

Acceptance ............................................................................................................................................ 5

Consideration ........................................................................................................................................ 5

Capacity to contract .............................................................................................................................. 5

Intent of the parties to contract ........................................................................................................... 5

Object of the contract ........................................................................................................................... 6

P1.2 ........................................................................................................................................................... 7

Offer ...................................................................................................................................................... 7

Acceptance ............................................................................................................................................ 7

P1.3.1 ...................................................................................................................................................... 10

Past Consideration .............................................................................................................................. 10

Rules on consideration ........................................................................................................................ 10

P1.3.2 ...................................................................................................................................................... 12

Consideration ...................................................................................................................................... 12

Rules on consideration ........................................................................................................................ 12

P1.4 ......................................................................................................................................................... 14

Capacity to contract ............................................................................................................................ 14

Contract for necessaries ..................................................................................................................... 14

Void contracts ..................................................................................................................................... 15


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Task Two (P2) .............................................................................................................................................. 16

P2.0 ......................................................................................................................................................... 16

2.1.1 Condition .................................................................................................................................... 16

2.1.2 Warranty .................................................................................................................................... 16

2.1.3 Intermediate/ Innominate Term ................................................................................................ 17

P2.1 ......................................................................................................................................................... 19

Mistakes .............................................................................................................................................. 19

P2.2 ......................................................................................................................................................... 20

Exclusion Clauses ................................................................................................................................ 20

Task Three (P3)............................................................................................................................................ 22

P3.1 ......................................................................................................................................................... 22

Tortuous Liability ................................................................................................................................ 22

Contractual Liability ............................................................................................................................ 23

P3.2 ......................................................................................................................................................... 24

P3.3 ......................................................................................................................................................... 26

P3.4 ......................................................................................................................................................... 27

Task Four (P4) ............................................................................................................................................. 28

P4.1 ......................................................................................................................................................... 28

4.1.1 Proximity Test ............................................................................................................................ 28

4.1.2 Reasonable Foresee ability Test ................................................................................................. 29

P4.2 ......................................................................................................................................................... 30

Defenses to Tort .................................................................................................................................. 30

Conclusion ................................................................................................................................................... 31

References .................................................................................................................................................. 32


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Task One (P1)

P1.1.1

Simple Contract

Under legal terminology, a simple contract is an agreement made by two parties. This is never

legally recorded or sealed. But a breach of such contract still holds the interference of the court.

Contract breach takes place where one of the two parties ignores any term in the agreement.

However in such cases, though it is difficult to prove an oral contract, the judge may consider the

breech and will award damages.

Contract under seal

A contract under seal is a more formal contract. In general, considerations are needed in order to

make a valid contract. But in the case of Contract under seal, no considerations are considered.

Such contracts naturally carry Irrebuttable presumptions where the presumption cannot be

proven as wrong.

Signature

Signature is naturally a hand written identification of a person used more in legal documents for

identification purposes. However, a signature is not mandatory to be handwritten for it to be

legally valid. In cases such as type written and e- mails, digital signatures will be used. But under

certain circumstances, a signature is highly considered in binding a contract. Once the contract is

signed, the contract will be denoted as accepted and valid.

Unilateral contract

Unilateral contract is a contract where the promissor agrees to perform/ refrain from performing

certain actions if the promisee perform/ refrain from the same action. But the promise does not

undertake to perform any action due to any external force.


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Bilateral Contract

Bilateral contract is differed from unilateral contract from its promise undertaking. In such

contract, the promissor and the promisee both agree to perform/ refrain from certain actions.

Unlike in unilateral contracts, the promisee has no freedom of refrain from attending what is

undertaken.

Multilateral Contract


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P1.1.2

Offer

An offer might be in both oral and written formats. Offer is simply what is offered by one party

to another in return a promise to an act by the second party. An offer made must not be bias or

unclear. An offer must be made in clear terms and specifically.

Acceptance

Acceptance falls under the rules of contract as non- withdraw able. In simple, acceptance is an

unqualified assent to the terms of the offer. It may take the form of both oral and written.

Consideration

Promises are not binding unless supported by consideration. In a deed situation, it can be

enforced against the promissor even though if no consideration has been provided.

DefinitionFredric Pollock

An act or forbearance of one party or the promise there of is the price for which the

promise of the other is bought & the promise thus given for value is enforceable

Capacity to contract

In law, all parties who are engaged in a contract must be within the capacity to contract. A

person who needs to avoid involving in a contract must prove their lack of capacity to contract

with the party who is implementing the contract with.

Intent of the parties to contract

Intention of the contract is one major fact which must be openly talked and agreed by all parties

who are to involve in a contract. It is the mutual agreement to accomplish by making the specific

contract. According to courts, intents are counted as those which are determined with the

attention of all parties and not secret intentions or desires.


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Object of the contract

A contract cannot be legally bound if it has an object which is illegal or harmful to any being by

means of anything. Object is the ultimate expectation to be accomplished as a result to the

actions performed in the contract.


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P1.2

Offer

An offer is defined as, a firm undertaking to be bound In the event its terms are accepted by the

others. It is an expression of willingness to contract on certain terms. It must be final, it must be

certain and it must be an ambiguous.

In the case of Kera, the offer made can be considered as the offer letter posted by Kera to Liam

on 4th

January.

Acceptance

An acceptance is defined as, an unqualified assent to the terms of the offer. Acceptance can be

by words written, spoken or acceptance can even be by conduct as seen in cases such as Carlil

vs. Carbolic Smokeball Co.

In the case of Kera, the acceptance made can be considered as the letter of acceptance posted by

Liam to Kera on 9th

January.

In the case of offer and acceptance, the general rule applied is that the acceptance must be

actually delivered to the offeror by the offeree. But in the case of Kera, the acceptance has been

done through the postal service. As an exception to the general rule, The Postal Rule Exception

has been introduced where the postal service is valid in producing the acceptance for an offer.

According to the rule, once the letter of acceptance is submitted to the postal authority by the

offeree, the contract will be activated (Household Fire Insurance vs. Grant).

The postal exception is applied only where post is a proper method of communication between

the parties. It will be;

a. When the offeror has required the offeree to send the acceptance by postb. Where the offeror himself has sent to the offeree the offer through the post


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In the case of Kera, one of the above two options are true where Kera (Offeree) has made the

offer through the post. Therefore, by the time Liam posted his letter of acceptance on 9th

January,

the contract between Kera & Liam was activated.

But then again, Liam has faxed Kera stating that Have changed my mind, ignore letter of 9th on

the 10thJanuary where Kera hasnt received the letter of acceptance yet. Pertaining to the request

through fax, Kera decided to sell the stock to Max on 11th January. On 12th January, Kera receive

Liams letter while Liam telephone Kera to inform that he is wishing to proceed with the order in

the afternoon.

The English court has not yet decided on situations as such where the rejection is conveyed

before the letter of acceptance. But still, considering the rejection as the first reflection of the

offeree as per to the offer, the rejection will be valid and the contract will be terminated

(Dunmore vs. Alexander).

Under the consideration of English law, Kera has the right to terminate the contract between

Liam and her and sell the goods to another as desired.

But on the other hand, in the South African case of A-Z Bazaars vs. Ministry of Agriculture &

the Newzeland case ofWenkheim vs. Arndt, judges looked at it in a different way it was held in

two cases that the offer could not be rejected even by communicating the rejection in actual fact

before, once the acceptance letter was posted a contract was made. The approach adopted by the

South African & NZ is consisted with the English postal rule exceptions.

Sir Fredrik Pollok says that in the above situation, the offeror has two options.

a. Once rejected, it is considered as a refresh offer where the previous offeree becomes theofferor and the previous offeror becomes the offeree in accepting the refresh offer of

rejection. Therefore the new offeror may proceed with the acceptance. But in this

situation, Kera cant perform this option sinc she has no goods provide once accepted due

to the sale of goods to Max on 11th January where this option is unmet.


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b. Secondly, Kera may consider the rejection as a breach of contract since a contract ismade at the point of letter posting & claim for damages.

Considering above two options & its possibilities, Kera may consider the rejection as a breach of

contract and claim for damages from Liam.


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P1.3.1

Past Consideration






Rules on consideration

a) Consideration can be executed or executor but cant be past consideration.b) Consideration need not be financially adequate but must be legally sufficient and real.

With reference to the case of Frank, promise remains as the allowance to be paid by Frank to

Gail where the consideration is marriage which is to be passed from Gail to Frank. According to

facts provided, the promise is binding as Gail performs the consideration as requested. Therefore,

Gail got her monthly allowance as promised by Frank.

A promise is void by the moment the consideration is disturbed where promise will not be in the

binding any longer. Therefore, as Gail and Frank are separated, under the terms of general law,

Gail will not be granted to claim the allowance from Frank as the consideration of marriage is

disturbed by their separation.

Rule 01.

Consideration can be executed or executor but cant be past consideration.

- ExecutedWhen consideration moves from the promise when the promise is made.- ExecutoryWhen consideration moves from the promise after the promise is made.- Past ConsiderationConsideration made before the promise


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A past consideration is always a void (case of Re Mcardle). But in certain cases, past

consideration is taken as an exception. For an example, the case of Re Caseys Patent, this case

has established four main factors to consider in past considerations. If all factors are true, the

second party will remain eligible to have the promise.

a. The work should have been done at the expressed or implied request of the other.- As it has stated on the case, it is clear that the case of Frank has an express request for

separation as a mutual agreement which makes the first factor true.

b. The work should have been done anticipating a payment- As it is commonly known, a marriage separation does always carry an anticipated

payment by the female. The factor is a truth and will be preceded to the following.

c. It must be a work which is usually paid for- Maintenance fee paid after a separation is commonly seen at the courts as mentioned

above, therefore, the third factor is fulfilled and passed on to the final factor.

d. A promise should have made subsequently to pay for the work already done.- As a promise, Frank has agreed to continue the payment as maintenance to Gail with

relevant to the separation took place.

Influenced by all above factors, the court will grant Gail to continue claiming a payment from

Frank upon their separation as all factors commit to a true value.


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P1.3.2

Consideration






Rules on consideration

a) Consideration can be executed or executor but cant be past consideration.b) Consideration need not be financially adequate but must be legally sufficient and real.

The case of Tim is where the pomissee has performed a pre existing contractual obligation which

would ultimately benefit a 3rd

party i.e. that is Tim has a pre existing contractual duty to supply

the goods to Stuart before the due date. And whether Stuart will be able to deliver the goods to

Ulla (third party) depends on whether Tim deliver the goods on time. Therefore, Ulla has the

ultimate benefit of Tim delivering the goods to Stuart before 20 th.

In the case of Scotson vs. Pegg, there was a contract between X & Y under which Y has to

deliver Xs cargo to Xs customer. X asked Y to deliver the cargo to Z, Y delayed the delivery &

Z (third party) promised Y that he will unload the cargo himself if Y comes to deliver as per the

schedule. Y delivered to Z as per to the schedule but Z refuse to keep to his promise arguing that

it was a bare promise and Y had not provide good considerations but had done what he is already

contractually bound to do.

Court disagreed. Performing the pre contractual obligation was a good consideration to hold the

promissor to the promise as it was an object if in trust to the promissor to see that the goods were

delivered.


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According to the given case, here to, the court would disagree with Ullas agreement that what

Tim has done is not more than fulfilling a contractual obligation. Because the court will be

influenced by the fact that it was an object of interest to the promissor (Ulla) to see that the good

were delivered to Stuart in time. Due to the circumstances, goods may not have been delivered to

the promissor on time. Therefore, this practical benefit which the promissor will make what Tim

did depending upon the promise made a valid consideration.

Therefore, the promissory will be bound by the promise and court will allow Tim to enforce the

promise against Ulla & claim the promised amount to be paid.


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P1.4

Capacity to contract

In the case of an individual, 18 is the age which is concerned as the capacity for legal

transactions. If a party to the contract does not have legal capacity to contract, contract is

considered void.

With the consideration of minor contract, it can be classified in to four main levels.

a. Contract for necessaryb. Beneficial contract of servicec. Voidable contractd. Void contracts

With reference to the case of Dan, two contracts to be considered in advising the shop keeper are

the Contract for necessaries & Void contracts.

Contract for necessaries

In common law, minors are naturally not bound to pay for necessaries that they are being

supplied. But if those goods and services are supplied to the minor under a contract and those

goods/ services are a necessity for the minor, the minor will have to pay a reasonable amount to

the supplier though they have no capacity to contract.

Necessaries are not certainly goods/ services which are required to support the well being of the

life. But they are those goods and services required by a person to maintain the standard ofliving.

With relevant to the Nosh vs. Inmancase, the court established two conditions to clarify what

is supplied to the minor are necessaries.


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a. Are the goods or services supplied suitable for conditioning the life of the minor? if theanswer is Yes,

b. Were they actually necessary at the time the contract was made?.Relating above two conditions to the case of Dave, it fulfill the condition (a) as the goods

purchased are suitable for the life of Dave since he is entitled to buy goods for his spouse. But,

the case stays open since the case do not mention about the necessity of goods bought by Dave at

that situation.

As the case remains open, court still has to declare its decision. Therefore, the Void Contracts

will be taken in to consideration.

Void contracts

As the case remains open, this contract is considered to be a void contract where the minor will

be asked to transfer the property to its original owner by the interference of the court. In that

case, the shopkeeper will get its goods in return and Dave will not be entitled to pay any value

for goods purchased.


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Task Two (P2)

P2.0

2.1.1 Condition

A condition is an essential term which must be maintained in obeying a contract. In simple

terms, conditions are features/ terms which must meet core requirements expected to accomplish

by those two parties who are engaged in the contract.

Eg:- In the case of buying a house, land location, location facilities, land space, land legality can

be treated as conditions.

Consequences of breaching a condition;

a. Once breached, the innocent party may force the performance of the contract in to atermination and claim for all damages and losses incurred or,

b. The innocent party may continue with contract performances but also claim for alldamages and losses incurred.

Decision depends on the wish of the innocent party.

2.1.2 Warranty

Warranty is slightly lesser prioritized than a condition. They are sub concentrations considered in

fulfilling the essential conditions.

Eg:- In the case of buying a house, color of the house, gardening & type of the flooring can be

categorized as warranties.


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Consequences of breaching a warranty;

a. The innocent party can only claim for damages but not force to terminate theperformance of the contract because the damages are amendable which is not serious as

much as a condition is.

Eg:- If the house bought is green instead of white, the innocent party may claim money for a

color wash rather than claiming money of the house purchase.

Both parties involved in the contract have the complete freedom to classify conditions and

warranties of its contract in beforehand.

If a warranty in nature is classified as a condition upon the wish of the two parties and that

condition is breached, the court will still treat the warranty as a warranty and will not grant the

innocent party for a contract termination.

2.1.3 Intermediate/ Innominate Term

Is a term where once it is breached, post consequences will be decided upon the gravity of the

breach.

What differentiate an intermediate term from a condition is that it is not automatically granted to

terminate the contract upon the wish of the innocent party.

Differentiation between intermediate term and a warranty is that the innocent part is not viable

for a straight claim as a breach happen.

Consequence of breaching an intermediate term;

b. It all depends on the decision declared by the judge of the court by taking the gravity ofthe breach on the innocent party in to consideration.

Most popular case of intermediate term breach: Hong Kong Fir Shipping Co Ltd Vs.

Kawasaki Kisen Kaisha Ltd [1962]


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Certain factors are taken in to the consideration in making a decision on such a breach as Carter

(1991) has identified.

i. The loss caused/ likely to be causedii. The delay caused/ likely to be caused

iii. The performance value to be gained if no breaching is doneiv. Cost to be incurred in re- generating the performance to meet contract

requirements

v. Offers by the party in breach to comfort the lossvi. Has the party in breach involved in any other breaching previously/ likely to

involve in the future

vii. The compensation by the party in breach to the innocent in refilling the damages


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P2.1

Mistakes

The case of Delma is clearly a Mistake which has caused the issue. A mistake is a defensive

strategy used intentionally/ unintentionally by a party for its self defense. Mistakes take form of

a. Common mistake (both parties suffering - similar mistake)b. Mutual mistake (both parties sufferingdifferent mistakes)c. Unilateral mistakes (one party suffering).

In common law, only a selected number of mistakes are granted to dismiss a contract were not all

mistakes will be considered.

In the case of Delma, Delma has caused for a unilateral mistake where its only Delma who is

suffering the mistake.

When a contract is signed, a party of the two can raise an issue stating that the contract needs to

be disarmed since they have mistakenly signed an irrelevant contract due to certain

inconveniences.

In a situation as such, the court may not grant the suffering party to terminate the contract. This

is because, whoever is ought to sign a contract MUST read and understand all facts, conditionsand terms of the contract in clear terms as they will be undertaking responsibilities once the

contract is signed.

With relevant to the case of Delma, the court will refuse to force terminate the contract since

Delma has not taken any precaution to avoid any mistake.

Broken spectacles is not an acceptable excuse because, Delma stood a secondary option of

getting the contract proof read by another trustable party as she was incapable of reading the

contract for herself. Therefore, as per to the popular case of Sounders Vs. Angila Building

Society, the courts will refuse Delams appeal for contract termination.

If Delma commit the same mistake while suffering no physical inconvenience, the courts

wouldnt even agree to consider the case.


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P2.2

Exclusion Clauses

In the case of Alma, it is clearly visible that the Ben Laundry has stated an exclusion of liabilities

by raising an Exclusion Clause during its contract. An exclusion clause is a term declared in a

contract in notifying the exclusion of certain responsibilities/ liabilities by one of the parties. An

exclusion clause will be active only if the clause is incorporated before the contract is made.

Clauses incorporated after declaring the contract are treated as void.

A way in which an exclusion clause can be incorporated is through contractual documents where

it needs to be brought in to the attention of the effected party before the contract is made. A

document is contractual if it clearly state terms/ clauses which will affect rights & liabilities of

the person in the position of the innocent party.

Taking the popular case of Parker Vs. South Eastern Railway, the exclusion clause was

stated in Bold Letters on the behind face of the ticket issued by the railway for left luggage and

See Back clause was stated on the front face of the ticket as a reference to the exclusion clause

on the back of the ticket. Courts decided that the exclusion clause was properly incorporated

which was sufficient to bring the attention of the effected party to make a notice of the clause.

But in the case of Alma, the exclusion clause was not properly incorporated to bring in effective

attention of the effected party to notice the clause since it was printed only on the behind face of

the ticket in small print which was barely noticeable. At this point, the court will treat the

exclusion clause as a void.

If the exclusion clause was treated as properly incorporated?

By the consideration of the court, if the exclusion clause was considered as acceptable in the case

of Alma, the clause will be examined for its validity further more.

As an exclusion clause is properly incorporated in to a contract, the party who included the

clause has no complete right to consider the clause to be accepted until it is being tested for its


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validity under the law. Today the validity of an exclusion clause is largely monitored by the

Unfair Contract Terms Act 1977 & the Unfair Terms in Consumer Contract Regulations 1999.

UCTA 1977:

Section 2 (2) provides where there is an exclusion clause excluding liability for

damage to property due to negligence, the validity of exclusion clause will depend

on the test of reasonableness.

In measuring the reasonableness of the exclusion clause, a test of reasonableness will be done by

the judge who influences the decision.

Where in sections 11 (1) provides that the clause must be a fair and reasonable one to be

included in the contract having regard to the circumstances which were the contemplation of the

parties when the contract was made. Accordingly the rest is to see whether taking in to

consideration the position of the parties and the knowledge they had about the relevant terms,

was a fair and reasonable clause to be included in the contract at the time the contract was made.

In this case, the exclusion cause of Ben Laundry is unfair because, the clause We will not be

responsible for any loss or damage of whatever nature or howsoever caused gives the idea that

they are not liable in undertaking any of its business responsibilities with reference to its

performance with relevant to the customer. As a business, they have the duty to undertake certain

responsibilities in providing service to the customer where it has been totally disregarded in the

case of the laundry. Therefore, the court will intend to hold the exclusion clause as a void.

Besides testing its validity, the decision of the judge will also be affected by the Contra

Preferendum Rule of interpretation. This enables the judge to give an interpretation to the

exclusion clause which will favor the party affected by the court.


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Task Three (P3)

P3.1

Tortuous Liability

After Donohue, the existence of a contract between the dependent and the third party (who has

suffered the injury) has denied dependents tort liability to a payment who suffers. The possible

torturous action would be under the law of negligence. Negligence as a tort is a breach of duty of

care owed by the dependent to the claimant. I.e. in this case, Stevenson to Mrs. Donohue. Its the

three stage Caparo test that now provides the test for existence of duty of care under which Mrs.

Donohue has to show;

a. Ifhas reasonably foreseeable that a person in Donohues (Claiment) situation would beinjured

i. Since the ginger beer was contained in an opaque bottle, there can be noinspection done by the purchaser and no reasonable preliminary inspection by the

consumer. Therefore, it is possible that if negligently in the course of preparation,

it allows the content to be mixed with a substance; it would make the content

inconsumable. I.e. in this case, a snail. Therefore, it is clear that Mrs. Donohue

falls within a class of foreseeable put at risk by Stevensons failure to exercise due

care and skill (Mrs. Donohue is the foreseeable victim of Stevensons failure)

b. There was a sufficient proximity between the consumer and the manufacturer.i. Proximity depends on the relationship between the parties that creates the duty of

care. Here the manufacturer & Mrs. Donohue. Donohue is a case which clearly

establishes that proximity is not totally dependable upon the physical classes of

relationship between the parties. Courts have gone so far to hold that proximity

can be expanded to any person who may be seen as a potential victim by

dependents actions.

Also, introduction of the neighbor principle by lord Atiken which states that You

must take reasonable care to avoid act or omission which you can reasonably

foresee would be likely to injure your neighbor also justified courts willingnessto interpret the meaning of proximity to such broad extent and helped court in

establishing the reasonable foreseeable requirement.


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c. It was also necessary to establish that it is fair, just and reasonable to impose liability onStevenson.

i. There was no issue in establishing this requirement since the court was influencedby the fact that if court did not aloe remedy to Mrs. Donohue, it will be said that

the law of England & Scotland is that the poisoned consumer has no remedy

against the negligent manufacturer. Therefore, the last requirement was also

satisfied without any doubt.

And an action in tort under negligence was raised successfully in favor of Mrs. Donohue.

Contractual Liability

In common law, a person is allowed to claim for damages caused by the second person where the

second person was harmful since they had breached the duty of care which they owe to the first

party. But according to the common law, the duty of care is considered under specific conditions

only. Such as a contract between two parties or if a manufacturer is manufacturing harmful

products.

There was no contractual relationship between Donoghue and the drinks manufacturer or even

the caf owner, as Donoghue had not ordered or paid for the drink herself. Although there was a

contractual relationship between the caf owner and Donoghue's friend, the friend had not been

harmed by the ginger beer. As ginger beer was not a dangerous product, and the manufacturer

had notfraudulently misrepresentedit, the case also fell outside the scope of the established

cases on product liability. On the face of it, the law therefore did not provide a remedy for

Donoghue.

Donoghue's solicitor, Walter Leechman of W G Leechman & Co in Glasgow's West George

Street, had already tried to establish liability against aerated water manufacturerA. G.Barrwhen a dead mouse was alleged to have found its way into a bottle of its ginger beer.

However, an action for damages was rejected by the Inner House of the Court of Session, when

the appeal court judges ruled that there was no legal authority allowing such an action

(Wikipedia.com, 2011)
http://en.wikipedia.org/wiki/Fraudhttp://en.wikipedia.org/wiki/Misrepresentationhttp://en.wikipedia.org/wiki/Solicitorhttp://en.wikipedia.org/wiki/A._G._Barrhttp://en.wikipedia.org/wiki/A._G._Barrhttp://en.wikipedia.org/wiki/A._G._Barrhttp://en.wikipedia.org/wiki/A._G._Barrhttp://en.wikipedia.org/wiki/Solicitorhttp://en.wikipedia.org/wiki/Misrepresentationhttp://en.wikipedia.org/wiki/Fraud


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P3.2

According to the given fact, we can clearly see that the question is based on law on occupiers

liability. The law governing occupiers liability to their lawful visitors is found in occupiers act

1957. The act is concerned only with liability to people physically in the premises which is under

sufficient control of the occupier. And also, the act applies only to injuries resulting from the

state of the premises (which is the case here).

In course of deciding whether the occupier is liable for the injuries occurred by the fireman, the

courts will first consider who is an occupier. According to the S1(2), an occupier must have

sufficient control of the premises for him to be the person responsible for the safety of the

visitors. Assuming that the occupier in this case has sufficient control over the premises, we

would next consider who is a lawful visitor & whether the fireman falls within the category. A

lawful visitor is a contractual entrant, invitee or a licensee as in common law. Therefore, in this

case, the fireman will definitely be a lawful visitor according to S1(2) of the above act.

Thereafter, the court will consider the nature of the duty owed by an occupier to a lawful visitor.

Its a Common duty of care defined in S2 (2). Accordingly, the occupier must take such a care

that the visitor will be reasonably safe in using the premises for the purpose for which he is

invited or permitted by the occupier to be there.

The act specifically mentions several categories of visitors relevant to determining the occupiers

standard of care. According to the given case, the lawful visitor is a fireman and in general,

fireman is fallen within the category of Trade Visitors. And an occupier who calls a trade

visitor to do a particular job for him can assume that the trade visitor will know how to protect

themselves against the danger which is ordinarily attached to their job.

In the case of Roles vs. Nathan two chimminey sweepers were killed by carbon monoxide at

occupiers premises while doing their job & the court held that the occupier need no duty to the

sweepers.

However, occupier is not always immune from liabilities. In this case, the court will be

influenced by the fact that the fire which injured the fireman was negligently started by the

occupier. Therefore, it is more likely that the occupier will not be able to escape liabilities due to


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his negligence irrespective of the fact that the injuries were suffered as a result of ordinary risk

undertaken by the fireman. OGWO vs. Taylor is the authoritative case where it was held that the

occupiers negligence conduct stopped him from being immune from liability.

Therefore, the court will come to the conclusion that the occupier who negligently started the fire

is liable for injuries suffered by the fireman while attempting to put out fire regardless of the fact

that the trade visitors are assumed to protect themselves against the ordinary risks undertaken by

them in their professional life.


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P3.3

According to the case, the court will next consider whether tort is done in course of employment

or not. Courts will use Salmons test which was laid down by Sir John Salmon. Salmon test

states that when an employer is prohibited from carrying out a certain conduct, whether the

employer is liable will depend on whether the conduct is done within the sphere of employment

(cause of employment or not). Accordingly, it will be initially decided that Kevin has acted not

within course of employment since Kevins conduct is clearly contrary to A Ltds orders (to not

to drink on duty & to strike on a customer unless attacked).

Salmons test furtherstates that employer is vicariously liable for employees deliberate criminal

act unless it is done to benefit the employer. Here, stabbing C cant be seen as done because C

called Kevin a coward. Therefore, it will also go in favor of both companies since according to

Salmon test; Kevin has acted outside the course of employment.

However, Listers test which is also can be used in assessing the relationship will favor C. In

Listers test, court will be influenced by the close connection between trot and job Kevin was

employed to do (close connection test). In Mattis vs. Pollock, a nightclub worker who stabbed P

was encouraged by his employer. In this case, court identified the direct connection with his

duties & the tort committed.

Accordingly, in this case also, it is likely that the court will be influenced by the fact that A Ltds

manager ordered Kevin to eject C & Kevin duty as a bouncer was closely connected to the

tortuous conduct, to decide that it was done within the scope of employment. Therefore,

according to Listers test, both B co: & A Ltd will be jointly & vicariously liable as employers in

tort for which is committed by Kevin.


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P3.4

This deals with the neighbor principle in tort (i.e owing a duty of care).

A tort is a private or civil wrong or injury for which a court may provide a remedy through a

lawsuit for damages as compensation. An objective test is used (Reasonable man test).

The following must be established

a. That the defendant owed a legal duty.b. That there was a breach of that legal duty.c. That the claimant has suffered a loss as a result.

Here, there is the tort of nuisancebreach of peace of another. (Ds situ)

Neighbor principle

Reasonable care should be taken to avoid wrongs which are reasonable foreseeable, that

would be likely to injure your neighbor.

Rylands vs. Fletcher rule (for Ds hedge burning situ)

Tort of defamation for E

Making a statement which harms the status/reputation of the claimant.


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Task Four (P4)

P4.1

Donohue vs Stevenson

Negligence as a tort is a breach of duty of care by a defendant to the claimant. As we discussed

above, it is the 3 step caparo test that now provides the test existence of a duty of care under

which claimant has to show that;

1. It was reasonable foreseeable that a person in claimants position would be injured.2. There was sufficient proximity between claimant & defendant.3. It is fair, just and reasonable to impose liability.

Among these three requirements, first two are of great importance. Following is a discussion on

those two requirements (I.e proximity test & reasonable foresee ability test in relation to the case

ofDonohue vs Stevenson).

4.1.1 Proximity Test

The meaning of phrase proximate relationship is unclear and there seems to be several

interpretations. But generally, proximity is the closeness of relationship between the parties

involved in the duty situation. Here in fact, the closeness of relationship between the

manufacturer of ginger beer Mr. Stevenson and the ultimate consumer of the product Mrs.

Donohue. So far the courts have decided that the proximity is not restricted to closeness of

physical proximity. But the courts have extended it to cover any person who are responsible be

affected by defendants conduct. This broad interpretation of the court will of course favor Mrs.

Donohue in this case since there is an obvious and clear relationship between a buyer of a

product and its manufacturer.

When measuring the closeness of the relationship between the parties (proximity test), we can

clearly see that it closely relates to reasonable foresee ability which will be discussed next. The

courts will see the persons who seem to be so closely & directly affected by ginger beer

manufacturers negligence and later will see whether Mrs. Donohue falls within the class. It can

be clearly seen that the court would reasonably contemplate Mrs. Donohue as being a party who


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would be so affected by Mr. Stevensons negligence I production process since she is a direct

consumer of his product. Therefore, court would more likely conclude the first requirement as

satisfied taking in to account the closeness of relationships between Mr. Stevenson and Mrs.

Donohue.

4.1.2 Reasonable Foresee ability Test

In order to establish this requirement, must be proved that Mr. Stevenson have foreseen both

Mrs. Donohue as an potential victim of his negligent conduct (or a member of a class who will

be affected) and the injury of the kind that actually occurred, the court will get in to a reasonable,

high pathetical persons shoe to decide whether it is so. Since the bottle which contained the

ginger beer was opaque (I.e. the content was no visible externally) neither there can be any

inspection by the manufacturer before supplying the goods to the buyer nor Mrs. Donohue could

inspect before consumption. Therefore, the possibility that it would be mixed with something

which would in fact make the content undrinkable incase of negligence in the production process

was reasonably foreseeable.

In addition to this, lord Atkinsons statement regarding neighbor principle also favor Mrs.

Donohue improving reasonable foresee ability. Neighbor principle state that you must take

responsible care to avoid act or omission which you can reasonably foresee which would likely

to injure your neighbor. We can see that Mrs. Donohue falls within the class of neighbors and it

goes to show that the producer must take responsible steps to avoid such reasonable steps to

avoid such reasonably foreseeable victims from getting affected by his conduct.

Next issues which Mrs. Donohue will be asked to prove to establish reasonable foresee ability is

that the manufacturer foresaw the inquiry of the kind that actually occurred. According to the

facts of the case, Mrs. Donohue has suffered from Gastroenteritis & nervous shock. This kind of

injury or suffering can be reasonably predictable as resulting from realizing that the person hasconsumed ginger beer with a snail in it. Therefore, this requirement will also be satisfied in favor

of Mrs. Donohue & can be said that Mrs. Donohue is in a good position to sue Mr. Stevenson for

his conduct under tort of negligence.


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P4.2

Defenses to Tort

Even in the case of negligence, the defendant stands a chance of escaping from the liability by a

number of general defenses.

a. Contributory Negligenceb. Consentc. Illegality

Contributory Negligence

a. Was completely a defense formerly, but after Law reform act 1945, it was declared aspartial defense.

b. When damage is suffered by the plaintiff due to both plaintiff and defendant faults,damages plaintiff can recover from defendant reduces due to contributory negligence.

c. Such a breach is defined in section 4 of the act. This applies to breach of statutory duty(ex: finding of workers share of responsibility) act/ omission.

d. Applies to nuisance but not clear whether it applies on other torts.Causation

a. Must show causal link between plaintiffs carelessness and damage.b. Damage- S: 4- including loss of life & personal injury. Property damage and economic

loss excluded.


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Conclusion

In conclusion, this is a document done in clearly discussing concepts such as Contract, Contents

of Contract, Torts and specific tort of negligence in common law inclusive of examples in aiding

better understanding.


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References

a. Mckendrick, E. (2009). The Classification of Contractual Terms- Chapter 10. In: Cremona, MContract Law. 8th ed. Hampshire: Palgrave McMillan. p168 - 175.

b. Mckendrick, E. (2009). The sources of contractual terms- Chapter 9. In: Cremona, M ContractLaw. 8th ed. Hampshire: Palgrave McMillan. p149 - 152.

c. Anon. (2011). Donoghue v Stevenson. Available:http://en.wikipedia.org/wiki/Donoghue_v_Stevenson. Last accessed 2011.4.2.

d. Anon. (2008). IV Tortuous Liability. Available:http://www.oup.com/uk/orc/bin/9780199544455/marson_ch13.pdf. Last accessed 2011.03.30.

e. Gordon, A. (N/A). 6 Key Elements of Contract. Available:http://EzineArticles.com/3797811. Lastaccessed 2011.04.08.

f. Hill, G & Hill, K. (N/A). Unilateral Contract. Available: http://legal-dictionary.thefreedictionary.com/Unilateral+contract. Last accessed 2011.04.16.

g. N/A. (N/A). Signature. Available:http://legal-dictionary.thefreedictionary.com/signature. Lastaccessed 2011.04.16.

h. N/A. (N/A). Bilateral Contracts. Available: http://law.jrank.org/pages/4745/Bilateral-Contract.html. Last accessed 2011.04.20.
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