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1. Discuss how the statutory forms have changed the common law principles of negligence.

2. Discuss the different ways a contract can be entered into.

Impact of Statutory Forms on Negligence Law

1. During the last five years, significant legislative changes had been introduced in the history of Australia concerning the tort of negligence. There are many legislative bodies, who believe that these changes were the result of the rapidly increasing insurance premiums concerning liability policies that was being felt by the community. Before these reforms, regular reports were being produced in the media regarding the effect of rising premiums, which included the cancellation of social and charitable events, the closure of playgrounds and swimming pools, and also the cancellation or a reduction in several activities in which there was a risk that someone may be injured. The rising insurance premiums also gained political attention and there was a ministerial meeting regarding public liability held between the Commonwealth, States and Territories Ministers. They selected an inquiry to conduct a evaluation of the law of negligence. This panel was chaired by Ipp J from the NSW Court of Appeal. The Ipp report came in September 2002. It was recommended in this report that a national approach should be adopted for tort reform and it was also recommended that sweeping legislative changes should be made to tort law. Among these recommendations, it was suggested that caps should be placed on the damages and similarly more onus should be placed on personal responsibility so that the circumstances where the injured party is entitled to claim damages can be restricted (Spigelman, 2002). However, the States and Territories missed a golden chance to adopt a uniform scheme of legislation that can be applicable throughout the country (Handford, 1987). In accordance with the recommendations of the Ipp report as in November 2002, the Federal as well as the State and Territory governments rejected the recommendation of having uniform tort law reform. The major barrier that was present for the introduction of uniform legislation was the failure of different ministers from States and Territories to arrive at an agreement regarding several major recommendations of the Ipp report.

Under the law of tort, it is considered that one person has the duty of care towards the other person if it could be reasonably foreseen by the first person that if care is not exercised, the other person is likely to suffer a physical injury or an economic loss. Under the Australian law, there are two components of the concept of negligence. These are the foreseeability of the risk of harm and calculating the degree of negligence, in other words, the negligence calculus (Walker, 2000).

On the other hand, if the risk is unforeseeable, in such a case, the person will not be responsible for failing to take precautions against such a risk. In order to be considered as foreseeable, it is required that the risk should not be so improbable that it would have been ignored by any reasonable person. Once it has been established that the risk is foreseeable, the negligence calculus helps in deciding what precautions were required to be taken by any other reasonable person for avoiding the harm that was offered by the other person and what precautions can be considered as reasonable for the defendant to take. For this purpose, the following factors, considered by the calculus; the probability that the harm will take place if reasonable care is not exercised; the likely seriousness of such harm; the burden to take precautions for avoiding the harm and the social utility of the activity that has created the risk. For the last factor, it has to be seen if it is more worthwhile to take the risk concerning certain activities as compared to the others, for instance, where a life is at stake (Mason, 2003).

Factors for Assessing Negligence in Australian Law

The Australian case law developed and the result is that the events in which there are very low chances of happening may still be treated as foreseeable. Therefore in Wyong Shire Council v Shirt (1980), the court was of the opinion that a person can be held responsible for any foreseeable risks, apart from the risks that were fanciful or far-fetched. For this purpose, it is required that a person should take precautions even against a risk when there are very low chances of occurring, only due to the reason that the risk is foreseeable. However by deciding if the foreseeable risk was not fanciful or far-fetched, does not help in deciding if the safety measures to stop the happening of the risk would be reasonable. In this regard, the negligence calculus plays an important role (Walker, 2000).

The reforms that have taken place in the tort law have replaced the foreseeability test provided by the court in Wyong v Shirt with the best that a person can be considered responsible regarding the risks that are not insignificant. It has also been clarified by these reforms that foreseeability is required but it is not the only condition sufficient to arrive at a finding of negligence (Mason, 2003). An individual cannot be held liable only due to the reason that the risk was foreseeable (Pound, 1908). Apart from it, reforms have also been introduced in the negligence calculus by legislation for prescribing what needs to be considered by the board while deciding negligence.

Under the law of tort, a person cannot be held responsible for damages if the person has failed to take care for preventing injury/death, but for the negligent conduct of the person (any act or omission) has resulted in a harm and unless they harm was not remote from the negligent conduct. While deciding if the negligent conduct has resulted in the harm, the court has to consider if any role has been played by the negligent conduct in causing such harm. Therefore it has to be seen for this purpose if the harm would have taken place even without the conduct. At the same time, the court is also required to consider if the defendant can be a labor to pay damages for such harm caused by the conduct. It was possible for the court to impose liability in cases where the conduct of the defendant was only remotely to blame for the loss. If it cannot be established, or the balance of probabilities, that a casual link exists between the harm and the conduct, it may be required to fill this 'evidentiary gap' by allowing proof that the negligent conduct had significantly contributed to the harm. Under these circumstances, a defendant could be held responsible for the total injury undergone by the other party, even if the defendant was only partially responsible. The main problem present in such a case was to establish when to loosen up the usual necessities related with the evidence of causation.

Different Methods of Contract Formation in Australian Law

Another problem that was present in such a case was the deciding what would have been done by the plaintiff if the defendant was not negligent. For instance, if a doctor had not given appropriate warning to the patient before the operation, a question may arise if the patient would have continued after receiving such a warning. In such cases, an inherent difficulty is present, while deciding the state of mind of the patient before the harm taking place, without any pressure of hindsight bias. As a result of the legislative reforms made in tort law, understanding has improved in this area as now legislative guidance is present regarding the principles underlying causation.

It only appears to be fair, to most of the people that the person who has suffered a harm due to the negligence of the other person, so far as reasonably practicable, should be restored to the same position in which the person was, before suffering such an injury or damage. However, this is easier in case where pure economic loss or damage to the property is involved, but in case of non-economic loss,. It tends to be more difficult. Therefore, for instance, how can accuracy be achieved while quantifying the loss that has been suffered by a person due to the loss of the capacity to walk or to see. Therefore the courts generally have varying degrees of success in this matter, which shows the capacity to reasonably assess the damages for compensating the 20th regarding different types of personal loss, the disparity that exists between the awards of damages given a different Australian jurisdictions reveals that it is not an easy task (Gummow, 1999).

In case of Victoria, the major legislation related with introducing reforms to the tort law included the Wrongs and Other Acts (Law of Negligence) Act, 2003, Wrongs and Other Acts (Public Liability Insurance Reform) Act, 2002, Wrongs and Limitations of Actions Act (Insurance Reform) Act, 2003 and the Professional Standards Act 2003. In view of these legislations, it has been provided in Victoria that a person cannot be considered as being negligent for the failure of taking questions against a foreseeable risk except if such risk is significant and any other reasonable person, under similar circumstances, would have taken the precautions. Therefore, in this case, the probability of causing now, the likely seriousness and the burden to take risk as well as the social benefit of the activity that has created the rest need to be considered. In case of Victoria, a person is considered to be conscious of an obvious risk unless it can be established by such a person that the risk was not in his knowledge.

Regarding the standard of care that is required in case of professionals. The law provides that in cases where an accusation of negligence has been made against an individual who holds himself as having a particular skill, the standard of care needs to be decided with reference to, what can be expected from a person who is professing such a skill at the time of the alleged negligence (Luntz, 2002). However, there is an exception present, which provides that if it is considered by the court that the opinion of the defendant professional or any of their expert witness is not rational.  Similarly, it is not required that the professional opinion would be universally acceptable to be treated as widely accepted.

Impact on Negligence Law

In case of the creation of services, a protection has been provided to the regional service providers as the law provides that a party cannot be held responsible for personal injury/death that has been suffered by a person due to the presence of an obvious risk. Regarding the negligence of medical practitioners, the law provides in Victoria that a medical practitioner cannot be held to be negligent if the petitioner had provided treatment according to the opinion that is widely held by several respected practitioners from that field, unless such opinion is irrational. This is known as the Bolam principle (Luntz, 2003).

Regarding the responsibility of the medical practitioners to notify or warn the patients, the law provides in Victoria that the defense of widely acceptable professional opinion is not applicable. In case of the liability that arises as a result of the giving or the failure to provide, a warning, advise or some other information regarding the risk of death/injury to a person, if suggests is present while providing the professional services. There are also provides that an expression of regret or apology does not amount to the express/implied admission of mistake or liability by a person regarding the subject matter of such apology. Similarly it is not relevant for the purpose of deciding the fault of the liability of such person regarding the subject matter. The law further provides that the evidence of apology cannot be given in case of any civil proceedings for the purpose of establishing the fault or the liability of the person concerning such proceedings.

2. According to the traditional view, a contract can be described as an agreement that has been made between two or more parties and when such agreement is unforeseeable by the law if the particular requirements for creating a valid contract have been completed. It is necessary that the contract reflects the agreement between the parties. Obviously, contracts are a major part of every business and as a result, it is necessary that all the parties to the contract clearly understand the terms of the contract and also the rights and obligations arising under the contract. The law requires that in case of every contract, there should be an offer, the acceptance of the offer, consideration and the intention of the parties to enter legal relations (Goode and McKendrick, 2010). The acceptance of the offer takes place when the other party makes an unqualified acceptance of all the terms mentioned in the offer. However, this is not very common in business and generally there are some medications before the parties entered into the contract. When new terms and conditions have been introduced by their party in the course of negotiations, it results to a counter-offer. The effect of making a counteroffer is that the original offer is not available to the other party anymore. The law further provides that in order to be effective, acceptance should be communicated to the party making the offer. Therefore, the offer will be treated as accepted if the acceptance has been brought to the notice of the party making the offer. This position of law is applicable in case of instantaneous modes of communication, where the party accepting the offer will instantly come to know if the communication is unsuccessful. However there is an exception present to this rule. Therefore, the postal rule of acceptance provides that when post is contemplated by the parties as the means of sending acceptance, when the letter containing acceptance is placed in the mailbox, it is considered that the acceptance is complete (Beatson, Burrows and Cartwright, 2010). Similarly it is also required that a valid consideration should be present to support the promise made by the parties under the contract. The law provides in this regard that a past consideration is not to be treated as a valid consideration. Similarly, it is also necessary that the parties should have the intention of entering into a contract (Collins, 2003).

Challenges in Compensating Non-Economic Loss

Traditionally, the contract law had used the requirement of a matching offer and acceptance for the purpose of identifying an agreement. However, in a number of cases, a more flexible approach has been proposed. Although this approach was firmly rejected in Gibson v Manchester City Council [1979] 1 WLR 294 by the House of Lords, more recently has been suggested that the approach adopted by Lord Dennings should be revived. This resulted in the decision given by the Supreme Court in RTS Flexible Systems Ltd v Molkerei Alois Müller Gmbh [2010] UKSC 14, [2010] 1 WLR 753. In this case, the court analyzed the formation of a contract and the terms on which the contract has been created, without making any reference to offer and acceptance. Therefore if there is going to be more than one approach for identifying the presence of a contract between the parties, it may result in causing problems for the contract theory and particularly for the persons were involved in providing advice. In case of contractual disputes, when the political dispute is related with the question if there is a valid admin between the parties and if so, what are the terms of such an agreement, the certainty in methods that will be adopted by the court will certainly make the life much more easier of all the parties concerned.

 Promissory estoppel: Sometimes the court may decide that a promise needs to be upheld even if a party believes that it had not entered into a contract or legal agreement. Therefore, promissory estoppel is an element of the law of contract that needs to be considered while entering into a contract. Generally, the law requires that a promise should be present in a legal agreement or contract, or it should be supported by consideration in order to be enforceable. However, the principle of promissory estoppel provides that a promise can be enforced even if these requirements have not been satisfied. In view of the development of the concept of promissory estoppel under the contract law, there is a proposition that the court may arrive at the conclusion that a contract has been created between the parties even if the traditional rules related with the formation of the contract are not satisfied.

References

Atiyah, P.S. (2000) An Introduction to the Law of Contract, Clarendon

Beatson, J., Burrows A and Cartwright, J., (2010) Anson's Law of Contract, 29th edn OUP

Collins, H., (2003) Contract Law in Context 4th edn CUP

Goode R and McKendrick, E (2010) Goode on Commercial Law 4th edn Penguin

Gummow, W (1999) ‘The Common Law and Statute’ in Change and Continuity: Statute, Equity and Federalism, at 26

Handford, P (1987) ‘Occupiers Liability Reform in Western Australia and Elsewhere’ (1987) 17 UWALR at 182

Luntz H., (2002) ‘Reform of the law of Negligence: Wrong Questions – Wrong Answers’ UNSWLawJl 49

Luntz H., (2003) ‘Looking Back at Accident Compensation: An Australian Perspective’, 34 Vict U of Wellington LR 279

Mason, K (2003) ‘Rights Protected by Statute and by the Courts’ UNSWLawJl 35

Pound, R (1908) ‘Common Law and Legislation’ 21 Harv LR 383 at 404

Spigelman, J (2002) ‘Negligence: The Last Outpost of the Welfare State’ (2002) 76 ALJ 432

Walker,S (2000) Media Law: Commentary and Materials at 3

Wyong Shire Council v Shirt (1980) 146 CLR 40

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