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Elements of Negligence

Discuss about the Negligence and Damages Injury.

Negligence is considered as a tort law in Australia and is considered as a civil wrong carried on. An incident of negligence occurs, when an individual ‘A’ owes a duty of care towards individual ‘B’ and while carrying out certain task or activity, the duty owed by A to B is breached, as a result of which, B is injured or harmed (Legal Services Commission, 2013). For showing conclusively that an incident of negligence actually occurred, certain crucial elements have to be shown properly, and these include the presence of a duty of care, the breach of the duty, and lastly, an incurred loss (Legal Services Commission, 2016). 

Along with this, the incident has to be supported by the evidence that the particular injury was clearly foreseeable and hence, avoided. And the loss has to be shown to have been directly caused as a result of the breach of duty, i.e., causation has to be established (The Law Handbook, 2015). Once, all these elements have been shown properly, B, as an injured party, can apply for damages, which takes the form of monetary compensation (Law Council of Australia, 2006). The scope of liability is limited through the provisions pertaining to the remoteness of the injury, through 5D of the Civil Liability Act 2002 (NSW) (Australasian Legal Information Institute, 2017). When the injuries are too remote, the damages are not given to the plaintiff, even with the presence of negligence (Statsky, 2011, p. 18).

To establish a duty of care, an inference can be made to the case of Donoghue v Stevenson [1932] UKHL 100. The maker of the ginger beer bottle, was held to have owed a duty of care towards its consumers, as he provided that something to consume. And this made his duty to make certain that the contents of the bottle were safe for human consumption. In this particular case, a dead snail was found inside the manufactured bottle, and hence, the case also came to be known as the Snail in the Bottle case. Stevenson, as the maker of this bottle contended that the fault was of the café owner and not him. But the court held that he had to compensate Donoghue as she consumed something which was made by him. This became a landmark verdict for all the manufacturers, as through this case, it was established that they owe a duty of care towards its consumers (British and Irish Legal Information Institute, 2017).

Scope of Liability and Damages

Once a duty of care is attained, it has to be shown that the same has been contravened. In the matter of Vaughan v Menlove (1837) 132 ER 490 (CP), it was successfully established that the duty of care was breached by Menlove as he did not pay attention to the warnings pertaining to the fire which could take place due to improper ventilation. And so, he was held to be negligent (Commonwealth Legal Information Institute, 2017).  In another matter of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2, though duty of care was present, but there was remoteness to the cause of fire. And as a result of this, the damages resulting from fire were not to be paid. This case is also famous as the Wagon Mount case (H2O, 2016).

The concept of eggshell skull rule provides that the weakness or the frailty of the injured party, i.e., is not to be used as a defense for any claim made in negligence (Barnett and Harder, 2014, p. 153). In Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501, the injury to the ten year old was held to have been caused by the accident which took place. And there was no previous occurrence of this particular injury or a chance of same occurring as per the physical and psychological making of this child. Hence, the injury had to be compensated for, as the same could be easily foreseeable (Neyers, Chamberlain, and Pitel, 2007, p. 485).

A common defense for negligence is Contributory Negligence. Under this, when B fails in taking care of himself, and does something, which contributes towards his injuries resulting from the negligence of A, it becomes a case of contributory negligence. And for this, he has to be held liable to the part of his failure of duty, which is subtracted from the monetary compensation awarded to him (Dongen, 2014, p. 8). Section 5S of the Civil Liability Act 2002 (NSW), provides that the compensation can be reduced in its entirety if it is considered as being a fair thing to do in the given scenario (NSW Legislation, 2017). The case of Davies v Swan Motor Co [1949] 2 KB 291 is an example of such reduction of awarded damages (Swarb, 2016a).

A claim cannot be made by Quinn, as her loss was not foreseeable in the given scenario. In this case, Huck owed a duty to the people on the freeway to drive in a careful manner. But, by taking his eyes off road, he caused an accident and hence, was negligent on his part. So, he would have to compensate Olivia and Fitz for the resulting injuries. Though, there are a number of points which show that Olivia and Fitz contributed to the injuries they received. The condition of Brittle Bone syndrome of Olivia cannot be blamed upon Huck as unlike Nader v Urban Transit Authority of NSW, evidence was present to show that she had this condition previously. And due to the applicability of the Civil Liability Act, accompanied by the gravity of contributory negligence of Olivia and Quinn, the amount of damages awarded to them would be reduced one hundred percent.

Defenses to Negligence

A contract depicts that a promise has been made to do something, for which the other party agrees to pay a consideration. It can be made in both oral and written manner (Mau, 2010, p. 5). To create a contract, there has to be offer and acceptance, followed by a consideration, along with intent, clarity and capacity of the parties (Miller and Cross, 2015, p. 257).

The first thing which has to be done to create a contract is to communicate an offer. An offer depicts that the party wants to create a contract on the terms covered in such an offer. Upon an offer being made in a successful manner, the other party has to give their acceptance to the terms offered (Helewitz, 2010, p. 28). The offer has to be accepted in the form it was made, and any modification would cancel it and as per Hyde v. Wrench (1840) 3 Beav 334, the same would be deemed as a counter offer (E-law Resources, 2017a). In Brogden v. Metropolitan Railway Company (1877) 2 App. CAS 666, the conduct of the individual was evaluated to clarify that the acceptance was made or not (E-Law Resources, 2017b).


The acceptance is deemed to have been attained when it is received by the party who made the offer. An exception to this rule, i.e., the instantaneous rule of acceptance, is the postal rule of acceptance. Under the latter rule, the date for acceptance is deemed as the date of postage of the acceptance letter. And it remains irrespective if the other party received the communication, along with the date on which the other party received the same (Andrews, 2015, p. 51).

This is because the postal office acts as the implied agent of the acceptance posting individual.

In Adams v. Lindsell (1818) 106 ER 250, the posted acceptance formed the basis of the enforceability of the contract (Swarb, 2016b).

This is followed by consideration. This value or amount has to be discussed and decided amongst the parties and can be anything, so long as it contains a value which can be deemed as economic.

On the basis of this concept, in Chappell and Co Ltd v Nestle Co Ltd [1960] AC 87, the judges accepted 3 wrappers as consideration (E-Law Resources, 2017c). There has to be clarity in the matter of what the terms of the contract govern and bring forward.

Creating a Contract


The parties need to have the intention or the intent for forming a lawful association. The parties also need to have the capacity to enter into the contract. Meaning, they need to have the majority age and sound mind, to enter into a contract. With all these elements present, a contract can be formed (Kirst-Ashman and Hull 2008, p. 205). If any of the contracting parties, do not conform to the terms of the contract, a breach takes place. This breach enables the aggrieved party to claim damages from the breaching party, along with the option of attaining equitable remedies, which could rescind the contract, or stop the other party from doing something or even ask the breaching party to carry on certain obligation.

Cyrus made an offer to Rowan through the post, which contained the contractual terms. The acceptance on this offer was attained on 25th September through the medium of post. This date would be deemed as the acceptance date as per the postal rules of acceptance. 27th September was the date on which the offer was cancelled by Cyrus by making a call to Rowan. However, this cancellation cannot be upheld as the acceptance has already been attained on the offer, which was converted into a contract on the 25th only, as the other elements of contract were clearly present. The postal rules further provide that the date of receiving this letter would not be considered. And so, Cyrus cannot deny the contract made with Rowan.

Through the making of an oral offer by Cyrus, an acceptance was attained through James by a letter which was sent on 26th July. This is accompanied by the acting on the particular promise by Cyrus, which further confirms that a contract had been successfully drawn between the two. By denying the new leader, a breach of contract took place on part of James.

In this case, an offer can be made in the vows of poverty which had to be adopted. The acceptance can be attained through Cyrus entering the covenant. The element of consideration shows the value of $ 320,000 AUD. There is nothing to show an absence of other elements. So, a contract was successfully formed. And Cyrus cannot claim his consideration amount, in the absence of a breach of contract.

Conclusion

Hence, Cyrus has a legal liability in the first case; he can initiate claims against James for breaching the contract in the second case; and in the last case, 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. (2017). 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). 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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