Contract: Formation For contract to be valid: 1. Offer 2. Acceptance 3. Consideration 4. Intention to create legal intentions 1. Offer – expression of one’s definite willingness to make an agreement with promissory intent. Carlil v Carbolic Smoke Ball Co. (offer made with promissory intent, with sincerity) Partridge v Crittenden (invitation – advertisements, catalogues) Harvey v Facey (provision of information – not offer) S14 ETA (web-based advertisements are invitations) Termination of offer – revocation only effective when offeree1 receives notice of revocation) Postal rule not applicable. Byrne v Van Tienhoven (valid contract, withdrawal not effective because acceptance communicated first) Communication of revocation by reliable third party okay Dickinson v Dodds (reliable third party communicated withdrawal, revocation effective) Cannot withdraw once offeree starts to act in unilateral contracts. Counter-offer – equivalent to first offer is rejected. Hyde v Wrench (no offer, counter-offer extinguished first offer) Lapse of time – acceptance after that period of time not effective, offer lapsed. Ramsgate Victoria Hotel Co v Montefiore (offer lapsed, more than 6 months) 2. Acceptance – MUST be unconditional expression of assent. “Subject to changes” – conditional acceptance, not accepted yet. Rejection – effective only when communicated to offeror. Communication of acceptance – physically received or be heard by offeror2. *Silence – both parties must agree to arrangement Felthouse v Bindley (no contract, no communication of acceptance, D3 did not agree to silence agreement) *Postal Acceptance Rule – acceptance effective when letter is posted, regardless if reached offeror. Adams v Lindsell (contract formed, acceptance communicated when P4 posted letter) If method of communicating acceptance is not logical, then postal rule cannot be used. E.g. offer send by email, logically is use email to reply acceptance. *Instantaneous Communications 1
Offeree: party who receives offer Offeror: the party who makes offer 3 D: defendant 4 P: plaintiff 2
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Telephone/fax: receipt rule (acceptance effective only when offeror receives) Entores Ltd v Miles Far East Corporation (contract made only when fax is received by offeror, communication of acceptance received) Email (not real-time) S13(2) ETA (Receipt of acceptance only when email is capable of being retrieved at electronic address designated by offeror, not necessary to read) 3. Consideration – can be price/compensation for the promise. Essential for all contracts, makes agreement enforceable5. Executory (consideration yet to be performed) Executed (consideration performed) *Past (consideration performed prior to promises being exchanged, performed without contemplation of/in response to promise) – Generally not sufficient to be enforceable. Pao On v Lau Yiu Long (past consideration becomes executed, there is consideration) Conditions: • Act done at promisor’s request • Parties understood act is to be remunerated • Contract must be otherwise enforceable *Consideration MUST move from promisee6 but need not go to promisor7 - promisee must show consideration has moved to enforce promise. Tweedle v Atkinson (consideration never move from P. Privity of contract) Consideration need not benefit promisor. *Need not be adequate but must be sufficient – not about matching value for value (adequacy). But has to be of some value in eyes of law (sufficiency). Chappell & Co Ltd v Nestle Co Ltd (not about the amount of value) Moral obligation not sufficient. Eastwood v Kenyon (insufficient consideration) Vague/Insubstantial promise not sufficient, consideration has to be tangible. White v Bluett (insufficient) Existing public duty not sufficient, targeted at law enforcement officers. Collins v Godefroy Unless, did more than required of existing public duty. Glassbrook Bros Ltd v Glamorgan City Council (exception: sufficient) Existing duty to promisor not sufficient. Stilk v Myrick (contractual duty, insufficient) Unless, doing more than required under contract, Hartley v Ponsonby (exception: sufficient) or when “practical benefits” gained. Williams v Roffey (sufficient, but very exception) 5
Offer & acceptance form contract. Promisee: person who receives promise 7 Promisor: person who makes promise 6
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Pinnel’s Case: partial fulfillment does not discharge8 promisee’s obligations. Applies to debts. E.g. If owe $10, but pay $9 even if creditor okay, debtor still have obligations. Unless, part payment made at request of creditor at earlier date Promissory Estoppel (P.E) – doctrine that promisee have valid defence against promisor’s claim even without consideration given by promisee. (benefits promisee) Only temporary where original agreement is suspended. Only for defence against P’s claim. Central London Property Trust v High Trees House Ltd (promise is enforceable even though no consideration) To establish P.E: • Promisee relied upon promise and altered position (gave up other options) • Inequitable for promisor to be allowed to go back on promise • Parties must have existing legal relationship (landlord/tenant, debtor/creditor) • Promise must be clear and unequivocal, intended to affect relationship 4. Intention to create legal relations – Ensure promise has binding obligation for both parties to follow. Use objective test to see if a reasonable person would consider promisor to intend his promise to have legal consequences. Social & domestic agreements – between family and friends, generally no intention. Balfour v Balfour (no intention, domestic agreement “out of love and affection”) Coward v Motor Insurance Bureau (no intention, social agreement) Merritt v Merritt (intention to make agreement binding is present) Commercial agreements – generally intention is present Edwards v Skyways Ltd (intention present, promise legally enforceable) Except honour clauses (expressly stating agreement not legally binding) Rose & Frank Co v J R Crompton (not binding due to clause) Privity of contract – general rule that no one, other than party to contract, may be entitled to enforce or be bound by contract’s terms. Tweedle v Atkinson Unless, S2(1) CRTA/Carriernet Global Ltd v Abkey Pte Ltd Contract: Terms Puffs – exaggeration, immeasurable. Representations – not integral part of contract. If untrue, sue under misrepresentation, no breach of contract. Terms – form part of contract. 1. Terms vs. Representations • When statement made – closer to conclusion of contract, more likely to be term. Routledge v McKay (not term, time interval too long) • Maker’s emphasis – greater emphasis, more likely statement is term. 8
Discharge: dismiss 3
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Bannerman v White (term) Maker’s special knowledge – maker of statement has greater knowledge, more likely is term. Oscar Chess Ltd v Williams (not term) Dick Bentley Productions Ltd v Harold Smith (term) Invitation to verify statement – maker of statement invites other party to verify statement’s truth, more likely to be representation.
Written vs. Oral statements If oral statement made but not formalized in agreement, oral statement likely to be representation. *Parol Evidence Rule – giving precedence to written contracts. 2. Express vs. Implied terms Express – written/oral Implied – not expressly agreed but implied into contract. Through statues or court (custom & usage or business efficacy) Business Efficacy – court supply term as having been intended by parties. Together with officious bystander test The Moorcock (there is implied term of jetty being safe to use) 3. Condition vs. Warranty terms Conditions – important, essential and go to root of contract. Breach of condition, injured party can affirm or discharge and claim damages. Warranties – secondary obligations. Breach of warranty, injured party can only claim damages. Poussard v Spiers (a term, so discharge and claim) Bettini v Gye (not a condition, so can claim damages only) 4. Innominate term – condition + warranty. If breach of term deprives injured party of substantially the whole benefit, then can terminate the contract. Hongkong Fir (innominate term)9 Exemption Clauses (E.C) – term in contract which seeks to exclude liability of party relying on clause. Must establish 4 points to rely on clause: • Incorporation of clause, by signature or notice, does not matter if clause is not read. Cannot have unusual factors (fraud etc) in the case. L’Estrange v Graucob (incorporated through signature) If no written contract, must give reasonably sufficient notice about clause. Reasonably sufficient notice: contemporaneity or sufficiency Olley v Marlborough Court Ltd (contemporaneity, too late. Cannot rely on E.C.) Thornton v Shoe Lane Parking Ltd (not sufficient. Cannot rely on E.C) • Construction of clause, wider the clause, more protection. Main Purpose Rule – general presumption that parties do not intend a E.C to defeat the main purpose of contract. E.C ineffective if involves fundamental breach. Photo Production Ltd v Securicor Transport Ltd (E.C invalid, fundamental breach of contract) 9
Use RDC approach if condition-warranty and Hongkong Fir approaches do not work. 4
If any unusual factors present to limit the effectiveness of contract. Collateral contracts (contract implied by court and runs parallel with main contract) can defeat E.C. Evans v Merzario Ltd (E.C neutralized due to collateral contract, so cannot rely) • Clause cannot contravene the Unfair Contract Terms Act (UCTA) – unreasonable clauses will be invalid no matter what. S11(5) UCTA: burden of proving reasonableness falls upon party seeking to rely on E.C. S2(1) UCTA: Liability for death or personal injury cannot be excluded S2(2) UCTA: Liability for other loss or damage, financial loss or property damage, can be excluded if clause reasonable. Misrepresentation (Unusual factors) – can seek protection for misrepresentation only if E.C is reasonable. Must consider factors in Second Schedule of UCTA: • Bargaining position of parties. If party relying on E.C has strong bargaining power, more likely to be unreasonable. • If customer received inducement to accept E.C, likely to be reasonable. • If business gets insurance for liability, E.C likely to be reasonable. • Compliance with clause’s conditions must be practicable. • If customer knew of E.C, likely to be reasonable. • Goods manufactured to customer’s specifications cause damage, clause is reasonable. •
Contract: Vitiating Factors Vitiating factors – affect enforceability of contract. 1. Misrepresentation 2. Illegality 3. Incapacity 4. Duress – contract can be void or voidable 5. Mistake 1. Misrepresentation – false statement of fact made by representor10 to representee11, which induces and is relied upon by representee to alter position, resulting in representee suffering loss. False statement of fact – of past/existing fact, cannot be opinion/future action. Edgington v Fitzmaurice (misrepresentation, false statement of fact) Bisset v Wilkinson (not misrepresentation, statement of opinion) *Silence not misrepresentation unless partial non-disclosure becomes half-truth. Dimmock v Hallett (unsaid facts made stated facts into half-truths, misrepresentation) Inducement – must induce in entering contract. Need not be the only reason. Opportunity to investigate truth of statement does not automatically remove possibility of reliance/inducement. Unless, innocent party knows of misrepresentation before contract and does not rely on misrepresentation to enter. Redgrave v Hurd (misrepresentation, but no damages because is innocent misrepresentation)
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Representor: person who makes the misrepresentation Representee: person who listens to the misrepresentation 5
Fraudulent Misrepresentation – false statement made with intention to deceive. Tort of deceit. Burden lies on innocent party to prove dishonesty on representor’s part if not, not fraudulent. Innocent party can rescind12 and claim damages. Derry v Peek (no fraudulent) *Negligent Misrepresentation – did not intend to deceive but did not believe statement to be true. S2(1) MA13: award damages, S2(2) MA: court can order damages instead of rescission. S2(1): Burden lies on representor to prove that he has reasonable grounds to believe and did believe the statement to be true. Howard Marine (negligent misrepresentation, representor has no reasonable grounds to prove is not) Innocent Misrepresentation – false statement without fraud and fault. Can rescind or claim damages, or indemnity. Rescission MUST be communicated to guilty party. Is unavailable when: • Lapse of reasonable time Leaf v International Galleries (right to rescind lost, reasonable amount of time lapsed) • Parties cannot be restored to original position before contract, restitutio in integrum impossible • Court uses its discretion to award damages in lieu of rescission S2(2) MA • Affirmation made expressly or impliedly after discovery of misrepresentation 2. Illegality – gaming & wagering, contrary to public policy, contrary to statute, restraint of trade. Gaming and wagering – generally void by statute. S5 Civil Law Act Contrary to public policy – Void, contravene with public policy. (committing crime, promoting sexual immorality, benefits foreign enemy/country) Contrary to statute – statutes prohibit certain contracts (illegal at inception), void. Re Mahmoud and Ispahani (illegal at inception) *Or penalize certain conduct without rendering the entire contract void (illegal in performance) St John Shipping Corporation v Joseph Rank Ltd (illegal as performed, method of carrying out contract’s obligations is illegal) Restraint of trade (ROT) – agreements which business/person agrees to refrain from undertaking certain types of trade/employment, prevent/minimize competition. General rule is void. Unless fulfill 3 criteria: • Protect legitimate interest of the covenantee14. Usually goodwill, trade secrets/contracts. Stratech Systems Ltd (ROT invalid, unable to show legitimate interest) • Reasonable scope in terms of time period, geographical scope, subject matter. Too long, void. *Blue Pencil Rule – If clause unreasonable, court can amend by deleting but no addition of words. Goldsoll v Goldman (use Blue Pencil Rule sever other parts of clause, allow it to be valid) *If clause fulfills above 2, then is prima facie reasonable.
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Rescind: representee elects to terminate, contract is voidable MA: Misrepresentation Act 14 Covenantee: person benefitting from restraint 13
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Not contrary to public interest. If has impact on trading arrangements, reduce competition, void.
3. Incapacity – contract unenforceable by reason of incapacity if lack of capacity by contracting party. Minors’ (below 21 years in Singapore) contracts not enforceable. Unless attained age of 18 years, S35, S36 Civil Law Act. Valid contracts (with minors) – contracts for necessaries (goods/services reasonably required by minor at that point of time) or contracts of employment. S3 Sale of Goods Act (define necessaries) Nash v Inman (contract not enforceable, cannot prove goods were necessaries) Valentini v Canali (not necessaries but cannot claim money back because used goods) De Francesco v Barnum (employment contract not enforceable, not to benefit of minor) Voidable contracts – contract binds the other party, minor can repudiate contract without liability during infancy or within reasonable time after attaining majority. Ratifiable contracts – neither valid nor enforceable against minor unless ratifies after attaining majority. Still binds the other party. Contracts: Discharge 1. Performance 2. Breach 3. Agreement 4. Frustration 1. Performance – perform obligations fully and precisely (f&p). Cutter v Powell (obligation not completed fully, contract not discharge) Exceptions: De Minimis Rule – deviation in performance microscopic, deemed to have been performed f&p. Arcos Ltd v E A Ronaasen & Son (deviation insignificant, contract performed f&p) Substantial Performance – substantially performed obligations, can claim money (contract price – cost of rectification to make good the defect). Still breach of warranty. Hoenig v Isaacs (fulfill 90% of obligation, so can get payment but less of cost to rectify defect) Bolton v Mahadeva (not substantially performed) Divisible Contracts – contracts paid in segments Acceptance of Partial Performance – promisee chooses to accept partial performance. Promisor entitled to reasonable remuneration on quantum meruit basis but still liable for claim in damages. Sumpter v Hedges (no choice to accept/reject, partial performance fail) 2. Breach – actual (already transpired) or anticipatory (not yet). Breach not necessary results in discharge of contract. Must be repudiation to claim damages and/or elect to end contract. If non-repudiatory, then damages only. Repudiatory actual breach: • Renunciation – by words or conduct with intention to not go on with contract, must be clear intention. • Failure to perform – must be fundamental and goes to root of contract. Hongkong Fir Shipping (repudiatory breach) • Impossibility to perform 7
If not, use RDC Concrete: contract says can discharge, renunciation, breach of condition, substantially deprive innocent party of whole benefit. Repudiatory anticipatory breach – non-performance substantially deprives innocent party of whole benefit. Hochster v De La Tour (substantially deprive, repudiation) Mersey Steel v Naylor Benson (non-performance is not repudiation) Affirmation after anticipatory breach – to continue with contract but only allowed if: • Innocent party show legitimate financial interest • Innocent party does not need cooperation of guilty party to perform contract White & Carter v McGregor (can affirm, don’t need guilty party) 4. Frustration – supervening event occurs which neither party responsible for, causing radical change in circumstances. No damages payable since no breach. Davis Contractors v Fareham (no frustration, no radical change in circumstances) Frustrated contracts occur: • Destruction of subject matter Taylor v Caldwell (discharged by frustration) • Non-occurrence of event Krell v Henry (contract frustrated) Herne Bay Steamboat v Hutton (contract not frustrated) • Outbreak of war, hostilities Tsakiroglou (no frustration) • Personal Incapacity Poussard v Spiers (frustration due to illness) Limiting factors: • Foreseeability – more foreseeable, more unlikely to be frustrated. • Force Majeure Clause (FMC) – clause expressly provides for occurrence of events but party relying on FMC must take all reasonable steps to mitigate results. Holcim v Precise Development (contract frustrated, took all reasonable steps to mitigate) • Self-induced frustration Maritime National Fish v Ocean Trawlers (self-induced so no frustration) Effects of Frustration – automatically discharges contract. Effective at point in time when frustrating event occurs, require no communication. Frustrated Contracts Act (FCA): • All future obligations cease. • S2(2) money paid prior is recoverable. • S2(2) money payable ceases to be payable. • S2(2) expenses incurred prior recoverable. • S2(3) benefits (not money) conferred prior can be compensated with amount court considers just. Contract: Remedies 1. Common law: Damages 2. Equitable: Specific Performance 3. Equitable: Injunction 4. Quantum Meruit – claim as much as injured party has earned 8
1. Common law: Damages – monetary compensation. General rule that injured party always have right to claim damages even if cannot terminate contract. Damages intended to place injured party in same position if contract performed properly. 4 aspects to establish when deciding to apply damages: • Causation – cause of loss must be dominantly due to breach. “But-for” test. Ensure that loss can be recoverable. • Remoteness – Hadley v Baxendale with 2 limbs; 1st limb covers normal damages that arise naturally, 2nd limb covers unusual loss, actual knowledge is needed to be effective. Knowledge of the usual practices of P The Heron II (can claim damages under 1st limb) Knowledge of likely loss suffered by P: imputed knowledge under 1st limb, actual under 2nd limb. Victoria Laundry v Newman Industries (can claim for loss of profits under 1st limb, but not for loss of lucrative profits by special order, no actual knowledge, 2nd limb) Knowledge of P’s likely loss is a real possibility • Mitigation – cannot recover loss that P could have avoided. Must take all reasonable steps to mitigate loss. If take mitigation steps but increase losses instead, can recover additional loss: Melachrino v Nicholl & Knight. • Assessment – assessing damages. General rule is to put injured party in position that he would be in if contract performed. Expectation/Reliance loss – can only claim either one unless calculate as net figure exclusive of expenses. Expectation loss is loss of profits. Reliance loss is wasted expenditure incurred by injured party. Anglia Television Ltd v Reed (claim reliance loss because cannot calculate expectation loss) *Non-percuniary loss: hurt feelings, anxiety. No damages awarded usually. Addis v Gramaphone (non-percuniary loss not awarded) Jarvis v Swan Tours Ltd (exception where disappointment awarded with damages, contract’s aim to provide enjoyment but did not) Farley v Skinner (exception) Ruxley Electronics v Forsyth (exception) Liquated damages vs. Penalties – inclusion of clause specifying amount of damages. Liquidated damages clause generally enforceable but if amounts to penalty, not enforceable. MUST follow guidelines from Dunlop v New Garage: i. Liquidated damages extravagant, likely to be penalty. ii. Single lump sum payment penalty. If penalty, amount stipulated higher than actual loss, obtain damages for actual loss suffered. If amount less than actual loss, can sue on clause recover no more than amount stipulated or sue for breach and recover damages full. 2. Equitable: Specific Performance – party seeking equitable remedies must come “with clean hands”. Order of court requiring party to perform obligations as specified in contract, especially subject matter is unique and damages not adequate remedy. Enforces positive obligations, supposed to do something to compensate. 3. Equitable: Injunction – court order requiring party to abide by negative covenant in contract. Enforces negative restriction. Can be temporary or permanent. 9
Warner Brothers v Nelson (injunction valid) Agency Agency relationship – A15 through authority conferred by P16, is empowered to establish legal relations on P’s behalf with T17. Resulting contract binds P to T, A is not bound. • P disclosed, A without authority. A liable under breach of warranty of authority, can be avoided by ratification. • P disclosed, A with authority. P liable. • P undisclosed, A with authority. T decides who to be liable, cannot use sometimes if it’s unfair. • P undisclosed, A without authority. A liable to T under breach of warranty of authority. P cannot ratify: Keighley v Durant Creation of agency: 1. Actual authority 2. Ostensible authority 3. Ratification 4. Operation of law 1. Actual authority – Granted through agency contract. Scope of authority granted is actual authority. Can be express or implied. Implied actual is agent’s power to do all acts within reasonable customs and usages of particular trade A is engaged in, or reasonably incidental to his discharge of duties. 2. Ostensible authority – A no actual authority but can still bind P. Only if prior to A’s act, P held out to T that A has authority. Complete silence is not representation. From the perspective of T. Freeman v Buckhurst (apparent authority present) shows 4 conditions to establish ostensible authority: • Representation that A has ostensible authority made to T. • T induced by representation to enter contract. • T does not know A lacks authority (restrictions placed b P on A’s authority has no effect unless T knew) Need to dispel ostensible authority: Summers v Soloman 3. Ratification – P retrospectively confirms A ‘s act, make it binding to T, implied through use/consumption of item. Only when A has no authority. Contract deemed to be concluded between P and T on date when A entered into the contract, not date of ratification. If A accepts with “subject to ratification”, then cannot because is conditional acceptance. Bolton Partners v Lambert (ratification successful, T cannot revoke) 4 conditions for ratification to be possible: • P must be disclosed or be ascertainable. Keighley v Durant (P undisclosed, cannot ratify. No contract) 15
A: agent P: principal 17 T: third party 16
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P must exist. Kelner v Baxer (P not in existence, cannot ratify so no contract) P must ratify within reasonable time
P-T relationship – fiduciary, characterized by requirement of good faith. Duties of A: • Duty to follow instructions. If unclear, must clarify. If not, at risk of negligent resulting in breach of agency contract. Bertram v Godfray (A never follow, P claim damages) • Duty to use care and skill. Standard is reasonable person would expect from A. Keppel v Wheeler (P claim damages, no care/skill) • Duty to avoid conflicts of interests. Cannot accept bribe, P can claim bribe from A. Cannot make secret profit, even if acted in good faith and no damage to P. Cannot be counterparty in transaction with P, in direct conflict to protect P’s interests. Yuen Chow Hin v ERA (counterparty is A’s family/friend also cannot) • Duty to not delegate. Except for co-broking. Rights of A: • Right to remuneration. Can claim fee only after fulfilling duties under agency contract. • Right to indemnity. Must have acted within scope of authority given. A-T relationship – general rule A is not liable as long as acted within scope of authority or has been ratified. Unless: • A agrees to be liable. • Trade Usage, custom and trade usage established A’s contract entails personal liability. • Breach of warranty of authority. A’s representation taken as warranty, if broken there is breach. T can claim damages from A. • Undisclosed P Torts Torts – set of rules specifying certain actions as wrongs resulting in civil liability. Fraudulent misrepresentation is under tort of deceit. Protects person’s rights from being violated by tortfeasor’s18 wrongful acts. Tort of negligence: tort + criminal offence. Negligence – doing something should not have done (malfeasance) or not doing something when he should have (misfeasance). 3 elements that tort of negligence must have: 1. Duty of care 2. Breach of duty 3. Resulting damage from breach 1. Duty of care (DOC) – Test for establishing DOC. Spandeck: • Factual foreseeability (FF). Threshold requirement, if can show that D19 ought to have known that claimant would suffer damage from D’s carelessness. • 1st prong: legal proximity, referring to closeness and directness of relationship between parties. Directness of action and injury can be linked especially for secondary victims. 18 19
Tortfeasor: person who commits tort D: defendant 11
“Neighbour principle” Donoghue v Steveson (did not take reasonable care to avoid acts which would be likely to injure neighbour”) If proximity established, prima facie DOC exists. • Policy considerations. If impose DOC, detrimental to public interest or result in opening of floodgates, then would negate the prima facie DOC. 2. Breach of duty – when standard of care (SOC) not met, then breach. Factors determining SOC: • Level of skill. ↑ level of skill, ↑ SOC. Wells v Cooper (D not liable, met SOC) • Likelihood of injury. ↑ likelihood of injury, ↑ SOC. Bolton v Stone (SOC met, no breach) • Seriousness of injury. ↑ serious injury, ↑ SOC. Paris v Stepney (SOC not met, breach) • Cost of avoiding risk. ↑ cost, ↑ risk, take precaution. ↓ cost, ↑ risk, take precaution. Latimer v AEC Ltd (take precaution, no breach) Res Ipsa Loquitur – breach so self-evident, the fact that event occurred itself is a breach. Used by P20. Scott v London (falling object) 3. Resulting damage – plaintiff must show he suffered damage from breach. Causation: “But-for” test must be fulfilled Barnett v Chelsea (“but-for” test not satisfied, no resulting damage from act of negligence) Break-in-the-chain Mckew v Holland Remoteness: “reasonable foreseeability” test whether a reasonable man would have foreseen that kind of damage to injured party. Wagon Mound (damage not reasonably foreseeable) If damage suffered by P more severe than reasonably be foreseen, D still liable under “egg-shell skull” rule. Smith v Leech Brain & Co. (“egg-shell-skull” rule) Defences for D must first establish the DOC, breach, resulting damage: • Volenti Non Fit Injuria: argue that P consented to risks involved. Complete defence. • Contributory Negligence: S3(1) CNPIA21, where P’s injury party contributed by P’s own fault. Court apportion liability between parties, partial defence. Tan Hun Hoe v Harte Denis Mathew • Disclaimer: can negate DOC but to be effective must fulfill UCTA. Psychiatric Harm – from secondary victims. Still need to consider Spandeck test. Must be recognizable psychiatric harm not claims for grief/sorrow. Need to fulfill all 3 conditions: • Circumstantial proximity: P have close ties of love and affection with victim (spouses, parent-child). 20 21
P: plaintiff CNPIA: Contributory Negligence and Personal Injuries Act 12
• Physical proximity: time and space. P witnessed accident itself or the aftermath. • Causal proximity: P witnessed accident with own sight and hearing. McLoughlin v O’Brien Pang Koi fa v Lim Djoe Phing Ngiam Kong Seng v Lim Chiew Hock (no FF, no legal proximity, cannot recover damages) Defamation – statement published which tends to lower person’s reputation. Can be written (libel) or oral (slander). Passing off – person seeks to pass-off goods as those of another, riding on reputation of an established company. *Vicarious Liability (when there is employer-employee relationship) – employer vicariously liable for torts committed by employee if employee acting within scope of authority. Koh Get Kee v Low Beng Hui (liable) Samin v Government of Malaysia (not liable)
Answering questions 1. Identify the issue of the question. 2. State the relevant laws. 3. Apply the laws in the context of the question. (just throw everything) 4. Raise any alternatives 5. Come to a logical conclusion.
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