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Topic 4 Causing Harm Rachel is the sole owner of a restaurant. She is also a belly dancer and she frequently performs at the restaurant to entertain her patrons. One night, Rachel encourages Barney, a customer who is celebrating his 60th birthday with his family, to join her in a dance. While vigorously attempting to keep up with Rachel, Barney breaks his hip. Does Barney have an action against Rachel in the tort of negligence? In your answer focus on whether or not Rachel owed Barney a duty of care. Issue Did Rachel owe Barney a duty of care? Law Whether the defendant owed the plaintiff a duty of care is a question of law. The onus is on the plaintiff to establish the existence of the duty of care. If the relationship between the parties is not one that falls within the established duties of care then to establish the existence of a duty of care, the plaintiff must establish two things: 1. that it was reasonably foreseeable that the defendant’s act or omission could cause harm to someone in the plaintiff’ s position: Donohue v Stevenson (1932) AC 562 – All persons must take reasonable care to avoid acts and omissions which can reasonably be foreseen as likely to injure their neighbor, the manufacture of the ginger beer is entitled to take reasonable care to ensure that the article is free from any defect. 2. that the salient features of the case are consistent with the existence of a duty of care: Sullivan v Moddy (2001) 207 CLR 562: salient feature had been considered Salient features’ include the control the defendant has over the situation and the relative vulnerability of the plaintiff, and the need for people to take personal responsibility for their own actions. Application It (was/was not) reasonably foreseeable that Rachel’s conduct could cause harm to someone in Barney’s position because Barney is a 60 years old people and he is not a regular dancer . Therefore, it can be foreseen that he may easily get hurt as his flexibility is not as good as Racheal, a belly dancer. As in Donohue v Stevenson (1932) case, it states all persons must take reasonable care to avoid acts and omissions which can reasonably be foreseen as likely to injure their neighbor, and therefore, Racheal should take care or consideration of Barney’s health condition. Therefore, it was able to foreseen that the conduct will cause harm to Barney. The salient features of the case (are/are not) consistent with the existence of a duty of care because in the case, it was Racheal encourage and spot a 60 years old birthday boy (Barney) to join her dance but not volunteer by Barney, therefore, there was control for Racheal over the suitation to spot other person to be his partner, the relative vulnerability had also been shown. Therefore, Racheal had the responsibility for their own action. Conclusion Rachel (did/did not) owe Barney a duty of care. Breach of duty of care should be consider in later stage to find out whether or not Racheal breach the duty of care, harm or damages need to be consider to recover Barney.

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Ted is in the final year of his Business Management degree. He orders a pizza from The Lame Duck the night before his Business Law exam. The pizza contains rotten pineapple, which was carelessly put on the pizza by one of the chefs. The next day Ted suffers food poisoning, but attempts the Business Law exam anyway. He fails the exam and has to repeat the course over summer. Can Ted recover the cost of the summer course from the Lame Duck by suing the Lame Duck in the tort of negligence? Consider all three elements of the tort. Issue 1 Did the Lame Duck owe Ted a duty of care? Law Under the established category, the manufacturer of a product owes a duty of care to the persons who use the product: Donohue v Stevenson (1932) AC 562 – All persons must take reasonable care to avoid acts and omissions which can reasonably be foreseen as likely to injure their neighbor, the manufacture of the ginger beer is entitled to take reasonable care to ensure that the article is free from any defect. Application The Lame Duck (is/is not) the manufacturer of the product because the Lame Duck employed the chef, and the pizza is made by the chef. Ted (is/is not) the user of the product because he is a customer of The Lame Duck. As states in Donohue v Stevenson (1932) case, manufactures owe a duty of care to people who use their products. Therefore, the relationship between Ted and The Lame Duck is under the established category. Conclusion The Lame Duck (did/did not) owe Ted a duty of care. And whether the Lame Duck has breach the duty is considered in follow. Issue 2 Has the Lame Duck breached its duty of care? La w An employer is vicariously liable for torts committed by their employees in the course of their employment: Hollis v Vabu Pty Ltd [2001] HCA 44 A person will breach their duty of care when they fail to do what a reasonable person would do in the same circumstances. CLA s. 9(1); a) The risk was foreseeable: Donohue v Stevenson (1932) AC 562 b) The risk was not insignificant

c) In the circumstances, a reasonable person in the person’s position would have taken those precautions, Paris v Stepney Borough Council [1951] AC 367: A reasonable person in the position of the Council would have insisted that Paris wear protective goggles. The Council had failed to do what a reasonable person would have done in the circumstances. section 9 of the Civil Liability Act Application The Lame Duck (is/is not) responsible for the Chef’s carelessness because the chef is the employees of The Lame Duck, or the Lame Duck is the employer of the chef. As in Hollis v Vabu Pty Ltd case, employer is 2

vicariously liable for torts committed by their employees in the course of their employment, therefore, The Lame Duck is responsible for the Chef’s carelessness. The duty of care (has/has not) been breached because The risk is foreseeable as the chef should have known this would cause harm to customer, in Donohue v Stevenson (1932) case mentions that the manufacturer is under a legal duty to the ultimate purchaser or consumer to take reasonable care to ensure that the article is free from any defect likely to cause injury to health. The risk was signifcant as people who had ate rotten pineapple is likely to suffer food poistioning S. 9(1) defines that a person will breach their duty of care when they fail to do what a reasonable person would do in the same circumstances. Also, in Paris v Stepney Borough Council [1951] case, it considers what a reasonable person in the position would have done to decide did the defendant breach the duty. In this case, a reasonable person in the position of the chef would have thrown the rotten pineapple away already and check the ingredient before use it to make the pizza so as to avoid use the rotten pineapple in the making process. Conclusion The Lame Duck (has/has not) breached its duty of care. I ssue 3 Was the harm suffered by Ted caused by the Lame Duck’s breach of duty and reasonable foreseeable? Law The plaintiff must establish:  the breach of duty was a necessary condition of the occurrence of the harm (factual causation): Yates v

Jones [1990] Aust Torts Rep 81-009: ‘but for’ test apply to consider would Yates suffers from heroin addiction, and  it is appropriate for the scope of the liability of the defendant to extend to the harm (scope of liability). Rowe v McCartney [1976] 2 NSWLR 72: McCartney’s breach of duty had caused the mental illness, the mental illness was not a reasonably foreseeable consequence of McCartney’s careless driving Application Factual causation: in Yates v Jones [1990] case, ‘but for’ test was used to decide the occurrence of harm. But for the chef carelessness, Ted is less likely to duffer food poisoning. Therefore, in this case, the chefs carelessness (was/was not) a necessary condition of Ted having to pay to do the business law course over summer, because Ted suffers food poisoning which lead to poor health condition of Ted when he sitting for the exam and thus affect his performance. Scope of liability: The cost of the summer course (is/ is not) a reasonably foreseeable consequence of the chef’s carelessness. In Rowe v McCartney [1976] case, it takes into account whether the actual loss suffered by the plaintiff was a reasonably foreseeable consequence of the defendant’s carelessness. In this case, although The Lame Duck’s breach of duty had caused Ted suffers from food poisoning, the failing for the exam and cost of the summer course was not a reasonably foreseeable consequence of the chef’s careless. Therefore, the lame duck is not liable for the consequence. Conclusion

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The harm suffered by Ted (was/was not) caused by the Lame Duck’s breach of duty and reasonably foreseeable. Therefore, Ted cannot ask for compensation for the cost for summer course. However, the Lame Duck should monitor the use for ingredient to avoid the situation happen again.

Topic 5 Making Deals Tim advertised his commercial kitchen size pizza oven for sale in a local newspaper. After seeing the ad, Bob called Tim and offered to pay $5,000 for the pizza oven. Tim accepted the offer and they agreed that Bob would collect the pizza oven the following day. After the sale has been completed on the following day, Tim said to Bob that the pizza oven had “barely been used”. In fact the pizza oven had been used on most days in Tim’s restaurant in the past 2 years. Did Bob provide consideration for Tim’s statement that the pizza oven has “barely been used”? Would it have made any difference if Tim had stated this before Bob agreed to buy the pizza oven? Issue 1 Was there consideration from Bob to support Tim’ s statement that the pizza oven had ‘barely been used’? Law An agreement is not a contract unless both parties to the agreement have paid, or promised to pay, a price. The contribution of each party to the agreement is called consideration. Consideration is the price for which the promise of the other is bought. If a promise in a statement is given after an act has been performed, this will be considered as past consideration. Past consideration is generally not sufficient. Therefore a promise given in exchange for past consideration is generally not enforceable: Roscorla v. Thomas [1842] 3 QB 234, in the case, Thomas promised was made after Roscorla consideration, and therefore, it is insufficient consideration. Application Bob purchased Tim’s pizza oven and, after the sale, Tim promised that the pizza oven has ‘barely been used’. Tim’s promise [was / was not] made after consideration was provided by Bob because Bob asked the question after the sale has been completed and the promise of ‘the oven had barely been used’ made by Ahmed is Bob payment for the pizza oven. Tim’s promise [is / is not] past consideration and [is / is not] therefore enforceable because in Roscorla v. Thomas [1842] case, it held that past consideration is an insufficient consideration, therefore, the promise given by Tim after Bob purchased the pixxa oven was generally not sufficient. Conclusion 4

Bob [did / did not] provide consideration for Tim’s promise that the pizza oven had ‘barely been used’. Therefore, Tim’s promise that the pizza oven had ‘barely been used’ [is / is not] legally enforceable. And thus, no remedies can seek from Tim’s promise. Issue 2 Would it have made any difference if Tim had made the statement before Bob promised to pay $5,000 for the pizza oven? Law An agreement is not a contract unless both parties to the agreement have paid, or promised to pay, a price. The contribution of each party to the agreement is called consideration. Consideration is the price for which the promise of the other is bought. If a promise in a statement is given after an act has been performed, this will be considered as past consideration. Past consideration is generally not sufficient. Therefore a promise given in exchange for past consideration is generally not enforceable: Roscorla v. Thomas [1842] 3 QB 234, in the case, Thomas promised was made after Roscorla consideration, and therefore, it is insufficient consideration. However, if a statement is made by one party (the promisor) to the other party (the promisee) before the promisee provides consideration, the promisee’s subsequent consideration will be considered as good consideration for the statement and the statement is enforceable: Dunlop Pneumatic Tyre Co Ltd v Selfridge Co Ltd [1915]: the price paid concept apply; the price for which the promise of the other is bought; and the promise thus given for value is enforceable

Application It [ would have / would not have] made a difference if Tim had made his statement that the pizza oven has ‘barely been used’ and in reliance and in exchange of that promise Bob had paid the $5,000 for the pizza oven because it did not fall in the category of past consideration which is not enforceable as shown in Roscorla v. Thomas [1842] case. Also, in Dunlop Pneumatic Tyre Co Ltd v Selfridge Co Ltd [1915] case, the price paid concept apply, that is Bob promised to pay $5000 for the pizza oven is the consideration pay for Tim promise, and therefore, Tim’s promise thus given for value is enforceable Conclusion If Tim had made the statement before Bob promised to pay $5,000 for the pizza oven the statement [would / would not] have been legally enforceable. And Bob could ask for remedies if the oven was not barely been used.

Johnny wishes to purchase a new MP3 player. He visits BJ Hi-Fi and checks out the range of MP3 players they have available. One particular model, the Orange ePod, is on sale: there is a small stack of ePods under a sign that states: ‘Special offer! Only $100’. Johnny says to himself, ‘Well, that’s an offer that is too good to refuse’, and takes one from the stack. He takes the ePod to the counter, hands it to the cashier, and says ‘I’ll take this’. He then remembers seeing ePods on sale for $90 at another store. He says to the cashier, ‘I’m sorry, I’ve changed my mind’. The cashier responds, ‘No, I’m sorry, I’m afraid it’s too late. You have to buy this now. You are legally committed’. Is the cashier correct? Focus upon whether or not there is an agreement between Johnny and BJ Hi-Fi. . 5

Issue Is there an agreement between Johnny and BJ Hi-Fi. Law As a general rule, an agreement consists of an offer plus acceptance of that offer. Neither advertisements nor the display of goods in a shop are likely to be legal offers. Rather they are ‘invitations to treat’, i.e. an invitation to members of the public to offer to buy the product from the seller. Fisher v Bell [1961] 1 QB 394, the flick knife with price tag in the display is considerate as invitation to treat. An offeror is entitled to revoke their offer at any time prior to acceptance. Application The display of ePods (was/was not) an offer because it is an invitation to treat. As in Fisher v Bell [1961] case, those display with price tags is considered as invitation to treat so as the display of ePods in this case. When Johnny handed the ePod to the casher it was ( an offer/ acceptance of an offer) because Johnny is the offeror and there is no indication that the cashier had accepted the offer, as there is also no agreement between them as no communication was shown, it is Johnny conversation only before he said he had change his mind. Johnny (was/was not) entitled to change his mind because the offeror os entitled to revoke their offer prior to acceptance, as there is no agreement and acceptance between two parties, Johnny is entitled to change his mind. Conclusion There (is/is not) an agreement between Johnny and BJ HI-Fi.

Topic 6 Enforcing deals Pip has paid to attend the Formula 1 Go Kart Centre on a number of occasions. On each occasion she has stored her belongings in one of the lockers made available for customers. In September 2011, Pip is at the Formula 1 Go Kart Centre when someone opens her locker and steals her laptop. The thief was able to open her locker using a key taken from an unlocked box at the unattended front desk of Formula 1 Go Kart Centre. After hearing how the thief was able to gain access to her locker, Pip demands that the Formula 1 Go Kart Centre pay for a new laptop. The manager says the Formula 1 Go Kart Centre is not liable because a sign displayed in the locker room states: The Formula 1 Go Kart Centre does not accept any responsibility whatsoever for any loss or damage suffered by customers while on the Formula 1 Go Kart Centre premises however that loss or damage may arise or be caused.” Is the Formula 1 Go Kart Centre liable for the loss of Pip’s laptop? Focus upon whether or not the Formula 1 Go Kart Centre is protected by the disclaimer in the locker room. Issue 1 Is the disclaimer a term of the contract between Pip and Formula 1 Go Kart Centre? Law 6

A disclaimer is only a term of the contract if:  it is a term in a written and signed contract; or  it is brought to the attention of the other party by reasonable notice before the contract is formed Olley v Marlborough Court Hotel [1949] 1 KB 532: The hotel could not rely on the exclusion clause as the contract had already been made by the time the claimant had seen the notice; or  it is implied into the contract as a result of prior dealing: Balmain New Ferry Co Ltd v Robertson [1906] NSWCA 18 Having travelled on many occasions backward and forward by the company's boats, he must have been aware the term and the company's method of conducting their business was to release the turnstiles only on payment of a penny. Application The disclaimer is not contained in any written and signed contract between Pip and the Formula 1 Go Kart Centre. The disclaimer [was / was not] brought to Pip’s attention by reasonable notice before the contract was formed because the sign is in the locker room, Pip wouldn’t have it until after she entered into the contract with the centre so as in the Olley v Marlborough Court Hotel [1949], reasonable notice should have been made before the contract is formed. Therefore, there is no reasonable notice before the contract was formed. The disclaimer [is / is not] implied into the contract as a result of prior dealing. As in Balmain New Ferry Co Ltd v Robertson [1906] case: prior dealing is considered as an implied term that the customer should have known already. In this case, as Pip has been to centre on multiple occasions and would have seen the sign before, therefore, it implied into the contact because of prior dealings between Pip and the Centre Conclusion The disclaimer [is / is not] a term of the contract. Issue 2 Will the disclaimer protect the Formula 1 Go Kart Centre from liability? Law To interpret the disclaimer, the court will interpret the disclaimer contra proferentem (against the interests of the party seeking to rely upon it) if the disclaimer is contained in a contract between a business and a consumer: White v John Warwick & Co Ltd [1953] 1 WLR 1285: the exclusion clause was sufficient to exclude liability for supplying a defective bicycle, but it was not sufficient to exclude liability for negligence, only liability for implied terms. AND Sydney City Council v West (1965) 114 CLR 481: the court applied contra proferentem to interpret the disclaimer; it can be interpreted as only protecting SC from liability while carrying out the terms of contract.

Application It [is / is not] clear whether the disclaimer applies to loss or harm caused by the customer because the terms in the disclaimer is too board. As in Sydney City Council v West (1965)case: contra proferentem rules was applied to protect the customer. In this case, “loss or damage” doesn’t include theft; “on the… Premises” can interpret as only includes go kart area but not the locker room. For example in White v John Warwick & Co Ltd [1953] case, the court held that the exclusion clause was sufficient to exclude liability for supplying a defective bicycle, but it was not sufficient to exclude liability for negligence, only liability for implied terms. In this case, the terms “however that loss or damage may arise or be caused” in the disclaimer does not include negligence by the Centre. 7

As the disclaimer is ambiguous, the court will choose the interpretation that f...