This document discusses various legal principles relating to negligence, duty of care, foreseeability, and proximate cause. It also discusses principles of contract law such as intention to create legal relations, offer and acceptance, consideration, terms and conditions, termination, and discharge of contractual obligations. Case law is referenced throughout relating to these different legal principles.

1. Negligence
Duty of care
Reasonably Foreseeable risk, Proximity Donoghue v. Stevenson
Consumers Levi v. Colgate-Palmolive
Property Owners (wet floor) Australian Safeway v. Zaluzna (owe)
Property Owners (attack by 3rd party that cannot control) Modbury Triangle v. Anzil (not owe)
Property Owners (attack by 3rd party but can control) Italia v. Ritchie
Psychological Injuries Jaensch v. Coffey
Purely Economic Loss (Perre v. Apand factors) Perre v. Apand
Negligence misstatement
• Direct misstatement (MLC v. Evatt factors) Shaddock v. Paramatta
• Indirect misstatement (Esanda Finance factors) Esanda Finance
Standard of care
4 elements Romeo factors
Standard of care Romeo v Conservation Commission
Damages
Causation (element) March v. Stramare
Defences
Contributory negligence March v. Stramare
Voluntary Assumption of Risk Insurance Commissioner v. Joyce
Vicarious Liability Hollis v. Vabu Pty Ltd
Contract
Intention to create the legal relationship Carhill v. Carbolic Smoke
Agreement (Offer and acceptance)
Offer Carhill v. Carbolic Smoke
Offer not vague or imprecise Meehan v Jones
Previous dealings and normal business practice make terms clear Hillas v Arcos
advertisement in a newspaper (invitations to treat) Partridge v Crittenden
catalogues (invitations to treat) Grainger & Sons v Gough
goods on display in a shop (invitation to treat) Pharmaceutical Society of Great Britain v
Boots Cash Chemists
automatic vending machines (not invitation to treat) Thornton v Shoe Lane Parking
invitation to submit tenders is not an offer Spencer v Harding
an auction sale is an invitation to bid Payne v Cave
Negotiations Harvey v. Facey
Unilateral Contracts Carhill v. Carbolic Smoke
Supply information (Not an offer) Harvey v. Facey
Request for more information Stevenson, Jacques & McLean
Revocation Dickinson v. Dodd
• offer revoked before acceptance Routledge v. Grant
• Option contract
Rejection: Counter-offer Hyde v. Wrench
Acceptance
• Must be in reliance on the offer R v Clarke
• Must be final and unqualified Masters v. Cameron
• Must be clear and certain, not vague or imprecise Scammell and Nephew Ltd. v. Ouston
• Silence is not acceptance Felthouse v. Bindley

2. • Conduct may also indicate acceptance Brogdon v. Metropolitan Railway
Postal Rule Adams v. Lindsell
the addressee of an electronic communication has designated an Section 14(3)
information system for the purpose of receiving electronic
communications, acceptance valid when it enters that information
system (The Electronic Transactions Act 1999)
if the addressee of the electronic communication has not designated Section 14(4)
an information system for receiving electronic communications,
acceptance valid until it is actually received by the addressee. ETA
Consideration
Consideration must not be past Roscorla v. Thomas
love and affection not consideration Eastwood v. Kenyon
giving up a right to sue Wigan v. Edwards
Re-negotiating debt generally not sufficient EXCEPTIONS Pinnel’s case
Renegotiating with group of debtors Foakes v. Beer
Third party negotiating the debt Foakes v. Beer
If the parties are already obligated to perform, they cannot renegotiate, Pinnel’s case
UNLESS there is new consideration
Obligation public duty Collins v. Godfroy
Payment of an existing debt by a third party is consideration Hirachand v. Temple
Promissory estopped (Judge Brennan’s 6 point test) Waltons Stores (Interstate) Ltd v Maher
Remedy Commonwealth v. Verwayen 1990
Legal Capacity
A contract with a minor is not enforceable unless the goods sold are Nash v. Inman
necessaries
Drunk or Drugged Blomley v. Ryan
Mentally ill
Consent
Unconscionability (Gross Unfairness) Blomley v. Ryan
Duress North Ocean Shipping v. Hyundai
Undue Influence
Actionable Misrepresentation
Common mistakes Smith v. Hughes
Existence of the good (Common mistake) Couturier v. Hastie
Nothing to sell (Common mistake) Scott v. Coulson
Mutual Mistake Raffles v. Wichelhaus
Unilateral Mistake Taylor v. Johnson
Contents of the Contract
1. Express terms
Statement made after K not term Olley v. Marlborough
2. Implied Terms under COMMON LAW
• Co-operation and Good Faith (Matter of Law) Burger King v. Hungry Jack
• Professionalism (Matter of Law)
• Works and Materials (Matter of Law) Reg Glass v. Rivers Locking System
• Other Services K’s (Matter of Law) Costa Vraca v. Berrigan Weed
• Custom or Trade Usage (Matter of Fact) British Crane v. Ipswich
• Contract Effective (Matter of Fact) The Moorcock
Implied terms under TPA

3. • Goods (implied warranty under TPA) TPA Pt V Div 2 s.74
o The company providing the goods must be a corporation (s.74)
o The company must be supplying goods (not services) (s.74, s.4(1))
o The goods must be supplied in the course of a business – as a (s.74);
business activity
o The goods contract must be a consumer contract (s.4B(1))
• Services (implied warranty under TPA) TPA Pt V Div 2 s.74
o The company providing the service must be a corporation (s.74);
o The company must be supplying services (not goods) (s.74, s.4(1))
o The services must be supplied in the course of a business – as (s.74);
a business activity
o The services contract must be a consumer contract (s.4B)
• Implied terms under TPA
o seller has a right to sell s.69(1)(a)
Niblett Ltd. V. Confectioner’s Material
Co. Ltd.
o buyer has a right to quiet possession s.69(1)(b)
o goods are free from encumbrance s.69(1)(c)
o goods match the description s.70 Reynolds v. Turner
o are of merchantable quality s.71(1) / s.66(2)
o are fit for purpose s.71(2)
o match the sample s.72
3. Representations or terms
• Reasonable bystander test Oscar Chess v. Williams
4. Incorporating term into a contract Parker v. South Eastern Railway
• “Reasonable notice” test
o Whether the document which provided the notice was Oceanic Line v. Fay
contractual in nature
o Whether the term is unusual for the type of contract (fairly Interfoto Picture v. Stiletto Visual
bring it into attention by highlight, WRITTEN IN ALLCAPS,
underlined)
o Whether the parties discuss the matter Maxitherm Boilers v. Pacific Dunlop
5. Condition or Warranty Essential test Tramways Advertising v. Luna Park
Termination
Discharge by performance
• Substantial performance Hoenig v Isaacs
By Breach
• Anticipatory breach National Engineering v Chilco Enterprises
• Repudiation Foran v Wight
By operation of law
• Frustration Taylor v. Hall
• Consequence of frustration Krell v. Henry
Remedies Avery v. Bowden
Equity
• Specific performance
• Injunction Lumley v Wagner
• Restitution

4. Common law
• Damages Hadley v Baxendale
TPA: Part VA
the defendant must be a corporation
in trade and commerce
supplying a good
manufactures
• growers, extractors, producers, processors, and assemblers Section 75AA
• Importers Section 75AB
• own-branders Section 74A(3-8)
• suppliers Section 75AJ
the good is defective Part VA, Section 75AC
the defective good actually caused the plaintiff’s damage, injury, or loss
• Loss from an individual’s own injuries/damages (medical expenses, lost income, Section 75AD
pain and suffering, loss of enjoyment, etc.)
• Loss to me because of injuries/damages to another person (3rd party) Section 75AE
• Loss from destruction of/damage to personal, domestic, or household goods Section 75AF
• Loss from destruction of/damage to private land, buildings, or fixtures (land, Section 75AG
building, or fixtures)
Defenses Section 75AK
Contributory negligence Section 75AN