A Problem Assignment on Negligent Misstatement

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Negligent Misstatement Elimination of the other two objects: First is about cleaner. The normal rules of negligence applied to the case of property owners and persons injured on the property. Because of this, the cleaner isn’t the owner of the highly polished floor, which means cleaner doesn’t have the duty of care to Dylan. On the other hand, about the floor polish manufacturer. The proprietor of store has more closely relationship to Dylan than manufacturer has. Besides, the owner of floor is proprietor, not the manufacturer, when the manufacturer translate the floor to the proprietor of store. As a result, cleaner and manufacturer don’t have responsibility to Dylan. Duty of Care: This is very similar to the facts of Australian Safeway Store Pty Ltd v Zaluzna’s case, which applied the duty of care owned by property owners. Firstly, in this case, it is important to inspect whether Dylan and the proprietor of store satisfied the neighbour relationship. Dylan was a lawful customer. Quills was operating a store. At the meantime, Dylan injured on the highly polished floor, which is one part of owner’s proprietor. The relationship between Dylan and Quills satisfied the neighbour test for duty set out in Donoghue v Stevenson, which means the proprietor of store must take reasonable care to avoid acts or omissions which proprietor can reasonably foresee would be likely to injure proprietor’s neighbour (Dylan). In other word, the proprietor of store owe a duty to Dylan. Unlike the facts of Romeo v Conservation Commission of the Northern Territory (1988) 192 CLR 431 (High Court), this case the risk of highly polished floor is obviously by the proprietor, but not consumer. Because it is hard to inspect the smooth degree of floor by a normal consumer. Standard of Care/Breach: It is reasonable foreseeable that person will easily slip on the highly polished floor. No reasonable Quills have taken reasonable care to protect the customers from foreseeable harm, which is the highly polished floor, such as Strong v Woolworths Ltd. The proprietor should put a warning plate before the highly polished area. Unfortunately, the proprietor didn’t take any action to avoid this risk. As a result, the proprietor breach the duty of care. Damage: The issue here was factual causation. Dylan suffer considerable loss both on physical and economic. It was necessary to apply a ‘but for’ test. Dylan would not suffer these lose, if the proprietor not breach the duty of care to him. As a result, the breach of care is the causation for the loss to Dylan, which cause him absence of four months’ work. Dylan will win a claim for loss of medical expenses and the damages which produced from the four months when he was out of work. This case is not similar with Metrolink Victoria Pty v Inglis (2009) VSCA 227. In Metrolink case, Inglis succeed for the loss of extra $7000 because it is reasonably foreseeable that crashing into a tram could lose the tram operator some revenue. In other word, the loss was not too remote. Similarly, Dylan will win the loss for out of work with four month and the expenses for medicine, because it is reasonably foreseeable that slipping on the highly polished floor could lose the revenue and paid medicine. However, the damages after four month will be hardly to remedy. The reason is that the proprietor of store impossible to recognise that Dylan’s leg did not heal quickly because of a hereditary bone defect, which means this situation is not foreseeable to the proprietor. Moreover, the reason why Dylan had to take on lighter work is the deferred recovery. In a word, the proprietor of store doesn’t have a liable to the damage caused by Dylan’s lighter work. For moral appeals, the proprietor of store would consider to negotiate to Dylan about his remedy for the time during his deferred recovery. The amount of damages depended on the detail of condition for an injury examined by accrediting body. Negligent Misstatement Jenny should sue Steve, the land surveyor in the employ of the Council Duty of Care: This is very similar to Tepko Pty Ltd v Water Board’s case. whenever a person gives information or advice to another upon a serious matter in circumstances where the speaker realises, or ought to realise, that he is being trusted to give the best of his information or advice as a basis for action on the part of the other party and it is reasonable in the circumstances for the other party to act on the information or advice, the speaker comes under a duty to exercise reasonable care in the provision of the information or advice he chooses to give. Therefore, it is critical not only that the plaintiff relied on the defendant’s advice or information, but also that the reliance reasonable in all the circumstance. In this case, there is no inducement to apply Jenny, who was thinking of purchasing five acres for a sheep farm, reliance was reasonable with the advice from Steve, who was a land surveyor in the employ of the Council. Subsequently, Steve own a duty of care to Jenny when advising the certain land was “agricultural use only” and confirming that the zoning would not be altered. Jenny had reasonable relied on his advice. Because Steve was a land surveyor and normally had expert knowledge and information from land. In other word, but for Steve’s advice, Jenny will not purchasing property. On the other hand, Steve failed to inform the water-supply plan to Meadows, which is the key aspect to this case. As a result, the action of Steve is negligent of misrepresentation. As the Section 18 ACL, the representation was made in trade or commerce and it was misleading – therefore there was a breach of Section 18. Damages can be awarded because the breach of Section 18 caused the loss. Contract Law Mrs. Shi and her husband have a contract with Mr. Gao, similar with Todd v Nicol. There are three essential elements in contract. Offer and acceptance, intention to create contract, and consideration. Offer and acceptance: Mr. Gao have made an offer to Mrs.Shi and her husband to live with him. Although Mr. Gao has proposed to Mr. Shi and her husband should come to Melbourne to look after him. He also promised Mrs.Shi and her husband could live in the house rent free, and he would pay all expenses if they looked after him. Ms Shi and her husband sold their apartment and moved to Melbourne. Offer was existed when Mr Gao contacted his niece that invited her to come to Melbourne to look after him with free rent. Acceptance was existed when Ms Shi and her husband sold their apartment and went to Melbourne. Consideration: Mrs. Shi sold their house, which was regarded as a consideration in the contract. Normally, the courts are reluctant to interfere a social or domestic arrangement. In Todd case, Todd quit her job, sold her furniture and moved with her daughter to South Australia. So the consideration were produced when Todd did these previous activities. In these case, Mrs. Shi and her husband sold their apartment before they move to Melbourne, which the apartment in shanghai, these factors which influenced the court were the cost of journey, the lack of any condition covering a possible return and the fact that if this was not an enforceable agreement Mrs. Shi and her husband would have been largely subject to what was no more than the whim of Mr.Gao. There are three essential elements of simple contracts. There are the unnecessary of formal document and written and requirement of consideration. As a result, with the existence of offer, acceptance and consideration, there is a contract. It is not a sample for social or domestic arrangement. Contract Law Harry’s advertisement is an Invitation to Treat in accordance with Partridge v Crittenden. Offer: as the case Harris v Nickerson, Partridge v Crittenden and Grainger & Sons v Gough, an advertisement placed in media, normally, is regarded as an invitation to treat, not an offer. However, in this case, contract was existed when Doug accepted the price. Harry have made an offer to Doug in response to his invitation to treat. Doug rang and said he would pay $5,000 for the car. Harry has said that he will think the response to Doug for one week. Doug responded if he heard nothing from Harry within a week he would regard the car as his. So Doug accepted the offer from Harry. Acceptance: Harry did not responded to Doug in one week, which was regarded as a crucial issue through the whole case. Byrne & Co v Van Tienhoven) ---revocation must communicate to offeree. There will be a contract if Harry accepted and responded the requests from Doug. Unfortunately, Harry didn’t do any action. The similar case is Routledge v Grant. An offeror may make an offer conditional on the happening of a particular event. If that condition is not satisfied, the off lapses and cannot be accepted. According to this, in this case Doug has accepted Harry’s offer before Harry may revoked which means that Harry has breached the contract with Doug before offer lapse. When no time limit is mentioned, the offer remains open for a reasonable time: Ramsgate Visctoria Hotel Co Ltd v Montefiore (1866) LR 1 Ex 109; Ballas v Theophilos (No 2) (1957) 98 CLR 193. However, in this case, there is a limit time for Harry responded to Doug, and he did not answered it. Doug can be awarded damages. Consideration Harry can revoke response that told Doug about a week for consideration before the deadline time. There may be a contract if Doug accept Harry’s request. Because consideration is existed in that sentence. Harry will sale his car and Doug will have a week to have other opportunities to purchase other cars. Additional, the response of Doug revealed an additional terms. Doug would regard the car as his after a week with no response. This term was not mentioned by Harry’s response. In other word, it is a counter offer because of the additional term. Subsequently, with counter offer, Harry has a right to terminate his offer any time.
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