How Can Robyn Defence Against The Claim Of Negligence
ISSUE: To decide:-
a) Can Ted sue Robyn?
b) Can Robyn raise any defence against the claim of negligence?
c) Can Lily successfully sue Robyn?
Law: In order to establish a claim, the plaintiff needs to prove 3 elements of negligence:-
(A) Duty of care
The defendant owed plaintiff’s responsibility. Duty is based on whether it was reasonably foreseeable that another person in place of plaintiff could have been harmed by defendant’s actions.
1) Objective Test: It is a key test to determine whether duty of care exists. It depends on whether a reasonable person in the position of defendant would have cause harm to the plaintiff by his/her action. This test was formulated in the case of Donoghue v Stevenson (1932) AII ER 1.
2) Proximity: Proximity …show more content…
In Bolton v Stone (1951) AC 850, the plaintiff was struck by a cricket ball. Such event of hitting the ball out of the ground had occurred only 6 times in 30 years. Therefore, the probability of risk is so low that a reasonable person is justified in disregarding it.
2) Seriousness of harm: It calculates the level of seriousness that harm would cause if it does occur. In Paris v Stepney Borough Council (1951) AC 367, a mechanic with only one eye sight was removing a rusted bolt when a metal clip flew into his good eye and blinded him totally. The mechanic was not provided with goggles to wear. The court held that, in view of fact that a reasonable person in place of employer would have provide goggles and would have taken care of plaintiff.
3) Steps to avoid the risk of harm: It includes the cost and efforts that would have been required to avoid the harm. If the harm is small and the cost is high to avoid harm, a reasonable person would not be expected to take those actions and vice a versa.
4) Social utility of the defendant’s act: This factor is added by the Civil Liability Act 2002 (NSW) but not yet fully tested and not taken into account. It argues that an activity that is of greater benefit to society may warrant the taking of higher risk.
(C) …show more content…
Law: An agreement is occurs when the offeror has communicated an offer to the offeree and the offeree accepted the offer.
Agreement = Offer + Acceptance
Counter offer is an offer where the offeree destroys the original offer and made a new offer. For example, in Hyde v Wrench (1840) 49 ER 132, Hyde made an offer to sell a land for £1000 to Wrench. Wrench responds that he would pay £950. Hyde rejected his Wrench’s counter offer. Afterwards Wrench agreed to pay £1000, but Hyde refused to sell the land. The court rejected Wrench’s argument that there was an agreement because there was no offer for Wrench to accept.
APPLICATION: Sheldon has destroyed the original offer of selling steering wheels for $40 each, inclusive GST and made a counter offer which stated that the price would be $55 each, plus GST. Leonard did not accept her counter offer. Then Sheldon made another offer stating that she would sell them at $40 each, inclusive GST. Before the acceptance of the offer by Leonard, Sheldon delivered the steering wheels with an invoice. But Leonard send the steering wheels back and refuses to
a) Can Ted sue Robyn?
b) Can Robyn raise any defence against the claim of negligence?
c) Can Lily successfully sue Robyn?
Law: In order to establish a claim, the plaintiff needs to prove 3 elements of negligence:-
(A) Duty of care
The defendant owed plaintiff’s responsibility. Duty is based on whether it was reasonably foreseeable that another person in place of plaintiff could have been harmed by defendant’s actions.
1) Objective Test: It is a key test to determine whether duty of care exists. It depends on whether a reasonable person in the position of defendant would have cause harm to the plaintiff by his/her action. This test was formulated in the case of Donoghue v Stevenson (1932) AII ER 1.
2) Proximity: Proximity …show more content…
In Bolton v Stone (1951) AC 850, the plaintiff was struck by a cricket ball. Such event of hitting the ball out of the ground had occurred only 6 times in 30 years. Therefore, the probability of risk is so low that a reasonable person is justified in disregarding it.
2) Seriousness of harm: It calculates the level of seriousness that harm would cause if it does occur. In Paris v Stepney Borough Council (1951) AC 367, a mechanic with only one eye sight was removing a rusted bolt when a metal clip flew into his good eye and blinded him totally. The mechanic was not provided with goggles to wear. The court held that, in view of fact that a reasonable person in place of employer would have provide goggles and would have taken care of plaintiff.
3) Steps to avoid the risk of harm: It includes the cost and efforts that would have been required to avoid the harm. If the harm is small and the cost is high to avoid harm, a reasonable person would not be expected to take those actions and vice a versa.
4) Social utility of the defendant’s act: This factor is added by the Civil Liability Act 2002 (NSW) but not yet fully tested and not taken into account. It argues that an activity that is of greater benefit to society may warrant the taking of higher risk.
(C) …show more content…
Law: An agreement is occurs when the offeror has communicated an offer to the offeree and the offeree accepted the offer.
Agreement = Offer + Acceptance
Counter offer is an offer where the offeree destroys the original offer and made a new offer. For example, in Hyde v Wrench (1840) 49 ER 132, Hyde made an offer to sell a land for £1000 to Wrench. Wrench responds that he would pay £950. Hyde rejected his Wrench’s counter offer. Afterwards Wrench agreed to pay £1000, but Hyde refused to sell the land. The court rejected Wrench’s argument that there was an agreement because there was no offer for Wrench to accept.
APPLICATION: Sheldon has destroyed the original offer of selling steering wheels for $40 each, inclusive GST and made a counter offer which stated that the price would be $55 each, plus GST. Leonard did not accept her counter offer. Then Sheldon made another offer stating that she would sell them at $40 each, inclusive GST. Before the acceptance of the offer by Leonard, Sheldon delivered the steering wheels with an invoice. But Leonard send the steering wheels back and refuses to