BJU200 PQ\'s + Answers - All Lectures PDF

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Top Topic ic 22:: Pri Princi nci nciple ple pless th that at Limi Limitt o orr Ex Extin tin tingu gu guish ish Dam Damag ag ages es - Ca Caus us usati ati ation on + C Con on ontri tri tribu bu butor tor toryy N Neg eg eglililige ge genc nc ncee CAU CAUSA SA SATIO TIO TION N : prevents P recover damages not caused by D wrong -

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Intervening cause -prevent P recover damage attribute 2 factor break chain causation D breach + damage (Mahony: neg. medical treat NOT intervening act; Bennett; CES Superclinics) 1. Causation in fact - but for wrong the loss would not have occurred ‘But for’ test Multiple Causes - Cambridge Credit: sufficient if breach a cause of loss = not need be excl. - ‘But for’ test in tort + contract – exclusionary test = app. of common sense CC - common sense test (March v Stramere) Chappel v Hart – ‘but for’ in Tort HELD: causal connection between fail advise risk + injury -damages tort + contract ad. ●Neg: fail prevent 4seeable risk of harm ●Contract: breach express or implied term of agree 2. Causation in law – should the legal system impose liability on the D? ‘scope of liability’

CON CONTR. TR. NE NEG G.: reduces P damages to extent attributable own neg.

*no current liability in contract (Astley)

Top Topic ic 22:: Pri Prin nciple cipless ttha ha hatt Li Limit mit or EExti xti xtingu ngu nguish ish Da Dama ma mages ges - Rem emot ot oten en enes es esss + Mi Mitig tig tiga atio tion n RE REMOTE MOTE MOTEN NES ESSS : prevent P recover damages in circ. unforeseeable or not within contemplation  Reas. Foreseeability – kind of injury/damage suffered reas. foreseeable as possible conseq. D neg. MIT MITIGA IGA IGATIO TIO TION N : prevent P damages 2 extent P ought to hav/did avoid +loss Test: P duty act reas. in p’s part. circ. - P no duty accept alt. offer employment contract (TCN Ch9 v Hayden) - Personal injury: circ. incl. background, ed., attitude (Glavonjic v Foster) - Impecuniosity – P’s financial capacity to take the action, part. if inability result of D breach (Burns v MAN)

Rem Remot ot otene ene enesss in Tort Test: Reas. Foreseeability  Wagon Mound (2) - damage foreseeable possible conseq. neg. + not far-fetched or fanciful = not too remote  Mt Isa v Pusey – e/er liable psychiatric harm arising from injury @ work by neg.  Neg. 1. DOC 2. Breach DOC 3. Damage caused not too remote

Rem Remot ot otene ene enesss in Con Contra tra tract ct Test: Reas. Contemplation  Hadley v Baxendale Test o Limb 1 (general damage) - direct loss (arise naturally in usual course of things ) – presumption of liability o Limb 2 (special damage) - indirect loss (unusual or special ) - D knew/ought 2 have known  Czarnikow v Koufos Issue: market loss 2 remote? HELD: D should contemplate fail deliver on time result ↓ value - damage of kind foresee as not unlikely conseq = real danger or serious possibility or likely result ( Burns v MAN)

PQ (Bo Boyd yd v SG SGIO IO IO))  Peter refused blood transfusion when in opinion of hospital surgeons essential to treat damaged femur.  His residual disability would have been less than 5% if carried out instead of the 20% he suffered.  At time of accident P was 17, his father was minister in Jehovah’s witness faith + although the son was not a formal member of the faith he accepted the teaching transfusion contrary to god’s law + felt obl. comply father’s views.  Should D pay damages for the 20% residual disability suffered by P refusing blood transfusion?  Apply Test Reas. in part. p’s circ. = fail mitigate? Or reas. d for P?  Walker v Flynn: conscientious religious belief reject contraception despite pelvic injuries made impossible give birth naturally – Was religious genuinely held (Yes) + obj. reas. test + in P part. circ. (in P’s circ. Yes)

Mitig Mitigaation tion/C /C /Caus aus ausati ati ation/ on/ on/Re Re Remo mo moten ten teness ess ess/C /C /Cont ont ontribu ribu ributo to tory ry Ne Neglig glig gligen en ence ce  McKew v Holland (P jumping down staircase), finding intervening cause breaking chain of causation  Burns P carried on using defective prime mover + chalking up losses when it should have been absolutely clear it was, as a result of breach of contract, not up to the task - find loss too remote  March v Stramare (drunk speeding P driver crash into truck neg. parked in middle of rd), HCA finds P CN.  Fontaine v Platers, P fail do simple course physio exercises = held to have failed, to that extent, to mitigate loss

Top 3: To Contra Com rinci Topic ic 3: Tort rt + Con tracct Com omp pensa nsati ti tion on Princi ciple ple pless in Dam ama age to P Prop rop roperty erty Cases Me Measurin asurin asuringg Dama Damages ges *NB: Comp. not only avail. remedy > Spec. Perf. of contract or Injunction may be avail. 1. Cos Costt of R Restora estora estoratio tio tion n/Reinstatement (repair)-$ need return it to prior state. IE Pre-damage ⌂ value $800k. After breach/injury cost restore $600k 2. Dim Diminut inut inution ion in Value Value: difference between value property pre-damage + value post-damage IE ⌂ value $800k. After breach/injury ⌂ worth $200k IE Land value $200k + cost build $250k (⌂ + land $450k) → truck $70k damage ⌂ + cost $70k restore original condition IE ⌂ (no value) + land worth $450k → truck crash in2 + knock down = worth spend $250k build new ⌂ (restoration)? If flood damage - wash ⌂ away > fill hole in $50k = value land b4 + after damage if not repair =$400k diminution in value = $50k diff. in land value = this is the measure in comp.

Me Measure asure of Dama Damages ges in CON ONTRA TRA TRACT CT  Contract Comp. Principle: Place P in position would hav been if contract perf. *Loss of Profit avail - Builder neg. erect ⌂ must fix > promise repair → Comp. =reinstatement value (Cost of Restoration)

Me Measure asure of Dama Damages ges in TORT  Tort Comp. Principle: Place P in position would have been as if tort not committed - Faulty building – Causation is neg. – also consider nuisance  Loss family ⌂ > Is it reas. for P reinstate property? Fair comp. = give back what had b4. Cost to D between competing measures is significant factor, but only 1 of factors, in assess reas.  No damages loss of profit in tort (is in contract) (Kyogle P rely neg. misstatement Council subdivision induce buy land → NO loss opp. profit (not deprive ability subdivide [zoning=not subdivisible] + outlaid $

PQ • Bob agree build ⌂ for Sarah for $350K. •Once ⌂ complete S discovers the foundations are unstable.  Sarah claims the value of having the house rebuilt = $495K (= 50% more than original cost)  Land worth half - Contract w builder (warranted) –YES if same purchaser, but if seller who’s motivated to sell maybe not. *Want to find both contract + tortious result

Dam Damage age to Lan Land d  Comp. for actual damage to land can be calculated by way of neg., nuisance or trespass  Cost Repair=$ return it to prior state (award $ effect reas. repair [restoration value] Evans v Balog demolition work adjacent property damaged P family ⌂ - land zoned high rise dv lpmnt = ⌂ no value (remove ⌂ not make diff. value land + can’t further diminish as result damage). o not take account P own labour o If repair possible + P kept or repair + sold, if diminution in value is greater = cost repair awarded o Consider diff. between owner occupier (Evans) -v- investor  Diminution in Value is diff. between value b4-damage + value after-damage Q: If 2 diff. outcomes? PQ Ha Hansen nsen v Gl Gloucest oucest oucester er  P bought land in subdivision + knew rdways need b constructed, but not know meant land b excavated + part of surface of land removed + damaged. P claim damages for trespass to land  Cost restore $60k (retaining walls + levelling) + result in land still being worth only $60k  Diminution in Value – damage caused by excavation reduced land value by only $16k. Land could b repaired to make suitable for sale by expending $16k. Land would still only be worth $60k.  HELD: unreas. award (cost restoration) damages $60k (as still only worth $60k) _____________________________________________________________________________________________________________________ _______________________________________________________________________________________ ____________________ ______________________________________________________________________ ____________________ ___________________________________________________________________________________________________ __________________________________________________________

Belgrove v Eldridge contract build 2-storey ⌂ –builder claim recover outstanding $ under contract. Respondent claim damages for departure from plans (concrete spec.) made⌂ unstable. HELD departure contract so great = only remedy place P in position as if contract performed = damages allow demolition + re-erection minus demolition value + unpaid contract $

Top Topic ic 55:: Co Comp mp mpensa ensa ensatio tio tion n for Br Brea ea each ch ooff Co Contr ntr ntra act Dam Damages ages ffor or LOS LOSSS of C CHA HA HANCE NCE NCE/OP /OP /OPP. P. - C CALC ALC ALCULATI ULATI ULATING NG th the e LO LOSS SS - PQ:        

Out of pocket expenses to date $2M + Loss of expected profit $10M + Legal & other directly related costs + Interest on loss of $12M+ at 6% until the date of judgement. OR $2M expense + forgone alt. of almost certain opp. of filming Mad Max 2 (Sellars)

TOP TOPIC IC 6: RES RESTITU TITU TITUTION TION – EX EXAMP AMP AMPLES LES + PQ’ PQ’SS Mos Mostt Com Common mon RESTI RESTITUTI TUTI TUTIONAR ONAR ONARYY CLAI CLAIMS MS in CON CONTRAC TRAC TRACT: T:  Claims to recover $ paid AP (action for $ had + received)  Claims to recover remuneration for services performed (action for Quantum meruit (amount earned)  Claims to recover reas. price for goods delivered (Quantum valebant (the amount they are worth) EXA EXAMPLE MPLE MPLE::  Bank error give $2k + only meant $200, Bank entitle restitution of $1800 b/c u r unjustly enriched  Although innocent of wrongdoing must make restitution b/c unjustly enriched at Bank’s expense. ***Quasi-Contract = Restitution → NB: Basis for Restitution is Unjust Enrichment

PQ1 Contract for flight between Sydney + London +flight forced to return to Sydney after dinner + a film.  Has consideration totally failed? ***NO (deal was to get to London + got part of consideration [part way]) * BUT, could argue total failure – yet Airline prob. return $ or put u on next flight  What did the claimant contract to receive? (deal was to get to London)  Have they received any part of the benefit they contracted to receive? ***YES

TOP TOPIC IC 6: RES RESTITU TITU TITUTIO TIO TION N – EXA EXAMP MP MPLES LES + PQ’ PQ’SS ((Con Con Continu tinu tinued) ed) PQ2 + ANS ANSWER WER    

P purchased a car from D + used it for several months. It became apparent that D had no title to the car + so could not have transferred title to P P was forced to give car back to rightful owner. Has there been a total failure of consideration? ***YES (purpose of purchasing car was to own it)

PQ3 + ANS ANSWER WER  Vic agreed to install built-in cupboards in all the bedrooms of Wilma’s house.  Contract specifies an “all up price” of $1k. After Vic completes 3 of 4 bdrms, house burn down.  Wilma refuses to pay anything. Vic demands at least partial payment. ***Advise?  Insurance (full value) ● Frustration (⌂ burn down + not W fault) (Taylor v Caldwell) ● Part-Perf.  Quantum meruit awarded if frustration b4 chance complete (partial consideration for part-perf.)=V entitle reas. comp. for work done by quantum meruit claim (W refusal pay work done unreas.)  V Not obl. cont. perform contract (can refuse complete) + entitle part-pay for work completed

PQ4 + ANS ANSWER WER  James is a prestige property developer who is well known for renovating historical mansions.  He approaches Flair interiors’ designer Joy to undertake interior design work on 1 of his renovations.  Joy give rough estimate 1 June $100k for the work but told James subject to alteration once she confirmed the extent of the work + gone over figures. A deposit would be payable + then a first instalment of $30k on 1 July.  Joy returned to her office. Calculated the figures + the amount came to $120k (*extra 20%).  She prepared the quote + faxed it to James. The 1st payment due on this quote was $40k on 1 July. Joy entered the wrong no. + James didn’t receive the fax.  8 June – James writes to Joy ‘I accept ur quote of 1 June’. He meant the estimate of $100k. Joy read ltr as meaning the revised quote of $120k not realising James not received the fax.  James paid $15k as deposit. 1 July he paid $30k (instalment) in accord w rough quote. When Joy received the amount instead of $40k she was concerned + contact James + the full story revealed.  Joy has completed 50% of the work + James has ⌂ under contract 2 purchaser. Cost of Joy work 2 date= $70k.  Advise Joy, assuming contract void for mistake  Is Joy entitled retain deposit $15k + instalment of $30k James paid, + if so, on what basis?  Is she entitled claim cost work perf. to date ($70k)? *NO –Defence: Mistake of fact (2 diff. prices) (DS)  What if the contract was not void for mistake but was terminated by James for Joy’s breach? Would Joy be entitled to the deposit + instalments of purchase price? ***YES DEF DEFEN EN ENCES CES  D detrimentally changed position in good faith in reliance on payment (IE A credit $1k B bank acc. by mistake + B honest belief $ his + gives $400 to charity = B only obl. pay A $600 (David Securities)

Top Topic ic 99:: Equ Equitab itab itable le Co Compe mpe mpensati nsati nsation on + Equ Equita ita itable ble Dam Damag ag ages es PQ  D tr/ee deceased estate, in breach of trust D laid out trust moneys together w his own $ to purchase property. The property increased substantially in value. The estate wants to share in the increased value.  How will the estate’s share be calculated?  What if D argues not sold property yet so there is no profit? (Warman v Dwyer: breach of Fid. Obl. > directed business from co. to self – Account of Profits awarded but ltd to 2yr period  Eq. Remedy (Injunction, Spec. Perf., Account of Profits, Rectification) only if Legal Remedy (CL Damages) inadequate...