DUTY OF CARE

Donoghue v Stevenson neighbour principal for established d.o.c situation

If not established then Caparo v Dickman 3 stage test, reasonable foreseeability, proximity, fair just and reasonable to
impose d.o.c

English law = no d.o.c for pure omission (e.g. passer-by)

STANDARD OF CARE

Blythe v Birmingham waterworks = standard of a reasonable man

Reasonable man does accounts for: age (orchard v lee), physical disabilities, if D acting in emergency
(Whitehouse v Jordan) special skills / qualifications (Wilsher v Essex AHA (junior doctor))

Reasonable man doesn’t account for: mental characteristics (dunnage v Randall) intoxication, inexperience (Nettleship v
Weston)

Bolam test for medical professional, if acting in accordance with responsible body approved practice then medical opinion
not negligent just because differing opinion by professionals

Refined in Bolitho so medical professional must justify its use in the circumstances (e.g 8/10 supporters not 2/10)

BREACH OF CARE

Bolton v stones factors: likelihood of harm (miller v Jackson = high) seriousness of harm (paris v Stepney (1 eyed
mechanic)), cost+practicability, social usefulness (fire service transporting liftin jack)

CAUSATION AND REMOTENESS

Factual causation “but for test” not happen apart from act or must materially contribute to harm)

Causation in law “wagon mound test”. Kind / type of damage must be reasonably forseeable (e.g. oil damage, physical
injury, (just a general idea)) (Hughes V Lord Advocate type (burn) foreseeable

Manner of infliction doesn’t need to be foreseeable, just that some harm was foreseeable

Extent of damage needn’t be foreseen (Hughes v Lord Advocate burns foreseen but severe burns occurred)

Egg-Shell Skull Rule = D liable for full extent of damage if C has particular susceptibility even if it wasn’t reasonably
foreseeable Smith V Leech Brain

DEFENCES

Contributory negligence = Froom v Butcher (didn’t wear seatbelt)

Consent = must have knowledge of risk AND freely + voluntarily agree to risk (expressly or implied)

Sport spectator / participant IMPLIEDLY consents to the incidental risks

Rescuer / public policy doesn’t consent to normal required act

Illegality = if the harm arose due to illegal activity (Joyce V O’Brien)

Limitation Act 1980 = 3 years for injury / knowledge of injury, children’s time commences from 18

VICARIOUS LIABILITY

Must prove employment relationship (ready mixed concrete v MPNI, factors of: own equipment? Can substitute work?
Does employer have control? Worker have financial risk?)

Employee must be acting in the course/scope of their employment (Rose v Plenty (Milkman boy work)

Mustn’t be on a “frolic of his own”

Mohamud v Morrisons = the general fields of activities entrusted to employee so if they abuse it then fair to hold employee
liable for compensation
PURE ECONOMIC LOSS

Spartan steel v martin = consequential economic loss claimable

p.e.l almost like potential loss (not attached to a physical injury/damage)

NEGLIGENT MISSTATEMENT

Prove Caparo v Dickman first then Hedley Byrne special relationship = 1) d had special skill (mutual life assurance case) 2) d
knew statement would be communicated to c (identifiable) 3) statement relates to identifiable transaction 4) c reasonably
relied on d’s statement to c’s detriment (Morgan crucible takeover bid case)

PSYCHIATRIC INJURY

Must be a medically recognised psychiatric illness (white v cc Yorkshire). Primary victim = fear for own life, secondary
victim = fear for someone else’s.

Page v Smith:1) Primary victims only need to show some personal injury foreseeable (not psychiatric) foreseeable) 2)
primary + secondary victims can have egg-shell skull personality

Rescuers not automatically primary victims (white v cc). Bystanders not any type of victim

ALCOCK criteria for secondary victims: 1) close ties of love + affection (spouses + parent / child presumed, prove others) 2)
sufficiently proximate geographically at scene, build up or aftermath 3) suffered recognised psychiatric illness due to
“sudden / immediate attack on senses” (psychiatric illness caused gradually over time not recoverable (Liverpool women’s
hospital case = gradual)

For secondary victims psychiatric injury must be reasonably foreseeable primary = any injury

CONTRACT

Offer must be clear (guthing v Lynn ‘lucky horse’) and communicated (bloom v switch watch co)

Mustn’t be: statement of intent, mere puff / boast, statement of supplying info (Harvey v Facey ‘house lowest price?’),
invitation to treat (Gibson v Manchester) (fisher v bell = shop window knife) (PSGB v Boots), generally adverts = I.T.T
(partridge v Crittenden ‘birds’) exception = carlill v carbolic smoke (unilateral offer to world)

Offer may be revoked any time before acceptance (Routledge v Grant) but must be communicated to offeree (Byrne v Van
Tienhoven) and can be communicated via reliable third party (Dickson v dod)

If unilateral then reasonable steps needed to notify of revocation, if unilateral offer accepted and started performance
(with definite end) then obliged to not withdraw offer (Errington v Errington)

If no time stated then offer expires after ‘reasonable time’, death of offeree terminates, death of offeror only terminates if
was required performance by them, rejection + counter offer means old offer ceases to exist so can’t be accepted (Hyde v
wrench) (request info isn’t a counter offer)

Acceptance must be mirror image (new terms = counter-offer) (butler machine = business standard forms each = counter
offer), must be unconditional (STC or provisional aren’t legally binding), and must be communicated to offeror (except
unilateral or postal rule)

Postal rule (Adams v Lindsell) acceptance is when posted if addressed properly not when received

Silence can’t be acceptance (felthouse v Bindley). Acceptance can be verbal, written, conduct.

Past consideration isn’t good consideration (roscorla v Thomas) unless 1) original act requested by D 2) understood /
implied C would be paid for act 3) promise of payment must’ve been enforceable if made before or at time of act (Stewart
v Casey)

Consideration must be provided by prmoisee

Consideration must be sufficient (financially measurable, real etc) (white v bluet) but need not be adequate value (Thomas
v Thomas)

Existing public duty not sufficient consideration unless goes beyond duty (glasbrook bros)

Existing contractual duty not sufficient consideration unless promisor gains benefit and no duress or fraud (Stilk = 2 sailors,
Hartley = 50% crew)(Williams v Roffey for extra payment for original work)

Part payment at due date can’t be consideration for whole debt (Pinnell’s case = earlier date or other item can be for full
debt) (foakes v beer) UNLESS Promissory Estoppel (if promised not to pursue for remainder if paid less then equitable
remedy) (CL property trust) (D&C builders = duress so can’t use)

Can’t enforce / be enforced contractually if not privity of contract (Dunlop v Selfridge), can enforce if contract for benefit of
group (Jackson v horizon holidays), can enforce collateral contract (Shanklin v detel)(induced via detel so collateral)

Domestic / social not normally legally intended (balfour) but (parker v Clarke and simkins v pays) was

Husband + wife binding if separated, commercial / business normally legally binding (unless say not)

If really!!! drunk / mentally impaired and other party knows this then no contractual capacity

If u18 only bound contracts for necessaries and if contract has no harsh detrimental terms.

TERMS (express)

false representation = remedy for misrepresentation, broken term = breach of contract

term or representation = objective test, would reasonable person consider it an intend term or not?

If a key reason for entering contract then term (bannerman v white), if lengthy gap between statement and contract then a
representation (routledge v mckay), if special skills and speak to someone not specialist then term (dick Bentley), if no
special skills then representation (Oscar chess)

INCORPORATION (term must be incorporated to have effect)

Bound by signature even if havent read (L’estrange), except for misrepresentation (Curtis v chemical)

Via notice: 1) notice must be before or at time of contracting (Thornton v shoe Lane), 2) terms must be on document
intended to have contractual effect (chapelton v barry), 3) reasonable steps must be taken to notify other party (Thompson
v LMS Railway) (RED HAND TEST in Interfoto v stiletto)

Via course of dealings (kendall v lillico (regular + consistent dealings) or trade custom (British crane hire)(standard term use
in the trade)

Terms (implied)

Statute = CRA 2015 = satisfactory quality, fit for purpose, match description, Custom = (Hutton v Warren), By court as
matter of fact (parties would have intended if thought of at time) (moorcock)

By court as matter of law (generally present in certain contract types to prevent exploitation) (Liverpool v Irwin) (in both,
court can’t make fairer or improve contract, only spell out what the contract was reasonably to be understood to mean)

CRA 2015 = trader (purposes of their business) and consumer (can’t be a company)

Goods + digital content must be: 1) satisfactory quality 2) fit for purpose 3) as described

Services to be performed with reasonable skill and care

Regulates vs unfair terms via: for above 4 liability can’t be excluded and neither can death / personal injury through
negligence. S.62 requires the terms need to be fair (not cause significant imbalance in partys rights/obligations to
consumers detriment) and if not then not binding. Decided on case facts.

If equal bargaining power businesses deal, court doesn’t get involved (unless try exclude negligence)

Conditions = most important terms (end contract or continue AND damages)

Warranty = minor term (damages only) Innominate = depends on seriousness so classed as either warranty or condition
based on the consequences

(poussard = condition so can end contract) (bettini = warranty so can’t terminate (only rehearsal))

(Hansa Nord = innominate and ended up as warranty based on consequences) established 1) if contract states breach
entitles to terminate then that’s conclusive(Lombard) 2) described as warranty or condition isn’t always conclusive(Schuler
AG) 3) if statutory right to terminate due to breached term then is a condition 4) consistent commercial practice can
determine the term status (Mihalis Angelos (readiness to load) 5) can only terminate contract if damage resulting is so
extensive it substantially deprived them of the contracts benefit (reardon v Hansen)

VITIATING FACTORS (invalidating factors)

Misrepresentation (fraudulent = knowing false) (negligent = believe true without reasonable) (innocent = believe to be true
on reasonable grounds)

Must be FALSE STATEMENT OF FACT from the other party

Statement of OPINION if no better position than other party to know (Bissett v Wilkinson)

Statement by expert is likely a statement of fact (Esso v mardon), statement of future intention isn’t statement of fact
unless no intention in first place (edgington v Fitzmaurice), incorrect statement of law about how applied to contract then
misrepresentation (pankhania v hackney lbc), silence / failure to volunteer info not misrepresentation (Sykes v Taylor rose)
unless a half-truth (Dimmock v Hallett) or circumstances changed a lot (with v Flanagan)

Mus be INDUCED by false statement: can be Via conduct (spice girls v apeilli), oral or written.

So must know about the misrepresentation (Horsfall Thomas) and rely on it (Attwood v small)

Remedy = rescission (voidable so must make other party aware) except if 1) c affirms contract after knowledge of false
statement 2) good faith third party gains good title 3) lapse of time (non-fraud) 4) can’t be restored to pre contractual
position (consumables) 4) damages in Lieu for non- fraud via misrepresentation act 1967 (William sindall) if try to escape
bad contract

MISTAKE (only invalid / void if such a fundamental mistake (operative))

Common = both make same mistake (couturier v hastie = subject matter existence) (cooper v phibbs = ownership of
subject matter) (bell v lever = quality of subject matter only if fundamental diff)

Unilateral = only 1 party mistaken, normally binding terms (centrovincial estates) unless clearly obvious to other party
(Hartog v colin)

Rogue: written contracts void for mistake if intend deal with someone else (cundy v Lindsay) if not intend then valid (king
Norton metal = no Hallam-co existed to can’t intend to deal with them)

Face-to-face = intend to deal with person present (phillips v brooke)(lewis v averay)

Signed document by mistake = bound (saunders v Anglia) unless unaware of true meaning and taken all reasonable care

Duress = violence (barton v Armstrong) economic duress (atlas expresso v kafco)

Undue influence = not violence (williams v bayley)

DISCHARGE

Bilateral agreement (neither has completed all obligatins) (consideration = each party promise not to insist performance)

Unilateral agreement (one party completed obligations) (uncompleted party must provide consideration for release or it
must be by deed) (accord and satisfaction)

Generally only complete performance discharges contract so can’t sue otherwise (cutter v powell)

Exceptions: divisible contracts (Ritchie v Atkinson), prevention of completion by other party (planchet v colbron),
acceptance of part performance freely for appropriate price of work done discharges other party (sumpter v hedges),
substantial performance (recover price of work done less amount to cover uncompleted work) (Hoenig v Isaacs)
Frustration = between formation and performance, become impossible, illegal or radically different from agreed

Subject matter destroyed (Taylor v Caldwell), personal incapacity (condor v Barron knights), event of contract basis fails to
happen (Krell v henry)(only for the event so no other reaosn), subsequent illegality (gamerco sa v icm), government
intervention (re Shipton Anderson) (government may requisition goods / property in national emergencies or war)

Frustrating event must take place after contract (otherwise void for mistake). Parties mustn’t have reasonably foreseen the
event unless outbreak of war), force majeure clause for specific event is valid (Metropolitan water v dick (wasn’t specific))

Frustration mustn’t be self-induced (maritime national fish), more onerous isn’t frustrated (davis contractors v Fareham)

Law reform act 1943, money owing ceases to be payable, prepayments are recoverable, court discretion to retain or
recover some money to cover expenses incurred before frustration, if provided valuable benefit to other party before
frustration can claim its value (Atwal v Rochester)

BREACH OF CONTRACT

Repudiatory breach = justified breach for termination (can ‘elect’ to or not) must notify other party, terminates
prospectively only (not retrospectively like rescission of misrepresentation)

Anticipatory breach = before stated performance date state can’t / won’t perform obligations (normally repudiatory)

Notify terminate and sue straight away (Rochester v de la tour) or affirm contract and sue when breached (white + carter)

DAMAGES

Can only claim damages for losses that aren’t too remote (or didn’t know of)(Hadley v baxendale)

Loss must be financially quanitifbale even if an opportunity (chaplin v hicks)

Building contract is is normally cost of correcting defect, unless disproportionate to loss of value (ruxley electronics) so loss
of value awarded instead

Can claim distress and disappointment in consumer contracts (Jarvis v swan)

Duty to mitigate loss (brace v calder)

Liquidated damages = pre agreed amount reasonable (Dunlop v new garage) , penalty = unreasonable, if liquidated less
than actual then tough luck, if more then keep it

Specific performance: EQUITABLE, not if damages adequate remedy, or court can’t supervise performance, or employment
contract

Prohibitory / mandatory injunction: EQUITABLE, not if damages adequate remedy (page one v britton)