Negligence
                           Duty of care
Reasonably Foreseeable risk, Proximity                             Dono...
• Conduct may also indicate acceptance                                 Brogdon v. Metropolitan Railway
Postal Rule        ...
•  Goods (implied warranty under TPA)                                TPA Pt V Div 2 s.74
  o The company providing the goo...
Common law
  • Damages                                                       Hadley v Baxendale

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Case List

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Case List

  1. 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. 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. 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. 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

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