Business &Employment Law Coursework U21764 & U24401 875839 Word Count: 1495 words I. Advise Simon if he has any contractual liability toFernando and/or Ali. The issue inthis case is if there was a contract formed between Simon and Fernando or Simonand Ali. If there was a contract formed between Simon and Fernando or Simon andAli, Simon is in breach of contract.
To determine this, it has to be establishedif there was an offer and acceptance between the parties. As established in Partridge VCrittenden 1968 2 All ER 4211, advertisements in magazines or newspapers areinvitations to treat (ITT). An ITT is not an offer that can be accepted, butmerely an invitation to open negotiations about the price. The postal rule states that acceptance occurs when theofferee has posted the acceptance.
Because an advertisement in a newspaper is an ITT, theoffer that Fernando put on the post does not have to be accepted because thepostal rule does not count for offers. Therefor there are no contractual liabilityto Fernando. Ali sent an email on Sunday evening with an counter-offerof 6500 pounds.
Because Simon did not accept this offer, the offer was terminated.Ali then made an offer of 7000 pounds through email, but the mail was not readby Simon. Because emails are instantaneous, the postal rule does not apply toemails. Ali his new offer was never read or accepted, so there are nocontractual liabilities towards Ali. II.
Advise Fern no any contractual and/or tortiousclaims she may have against Joe and/or Good Buys, including a discussion onwhether the notice will prevent her making any claim against Good Buys. The issue in this case is if Fern can sue Joe or GoodBuy for contractual and/or tortious claims. It has to be determined if there isa contract between Fern and Best Buys, if the notice at the parking lot appliesto Fern and if Joe or Best Buys have been negligent. To determine if Fern can sue for contractual claims, it has to bedetermined if there is a contract between Fern and Best Buys.
The case of Pharmaceutical Society Of Great Britain V Boots CashChemists 1953 1 QB 4012 explains that display of good is not an offer, but the customer makes anoffer when they bring their goods to the till, and their offer is accepted when the teller accepts the money.The Unfair Contract Terms Act 1977 section 2(1)3,says that a party cannot exclude his liability when they cause death orpersonal injury by using a term or notice. When this does happen, the term or noticewill be void.When Fern was on her way to Best Buys to purchasecoffee, she was hit by Joe, an employee of Best Buys. Fern had not yetpurchased coffee at Best Buys, so there was no contract formed. Therefore, she cannotmake any contractual claims against Best Buy. If there had been a contract, thenotice would still not have applied because the Unfair Contract Terms Act 1977section 2(1)4 statesthat a term or notice will be void when death or personal injury have occurred.
To determine if Fern can make tortious claims, there hasto be prove of negligence. To file a successful claim, it has to be proven thatthe following three essential negligence elements were present:1. The defendant owes the claimant a duty to take reasonablecare,2. The defendant is in breach of this duty by beingnegligent,3. Due to the defendant’s breach the claimant hassuffered loss or injury which is not too remote from the defendant’s actions.To determine if the defendant owes the claimant a dutyto take reasonable care, the courts will apply a 3 part test, called the Caparotest, which was established in Caparo Industries pIc vDickman 19902 AC 6055 .
The first part ofthe test tests if the harm caused by the defendant would have been foreseeable,the second part of the test tests if there was a sufficient proximity betweenthe defendant and the claimant and the third part of the test tests if it wouldbe just, fair and reasonable to impose a duty of care. When it is determined that there is a duty of care, abreach of duty of care has to be proven. The case of Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781, 156 ER 1047 6 explains that to determine a breach, ithas to be proven that the defendant failed to do something a reasonable manwould do. The specific principles that have been established in case law that haveto be taken into account in this case are the likelihood of injury (Bolton v Stone 1951 AC 850)7, seriousness of injury(Paris V Stepney Borough Council 1951 AC 3678) and lack of training ofthe defendant is not relevant (Nettleship v Weston 1971 3 WLR 370).9The last element to prove negligence is to establishthat the defendant’s breach of duty of care has resulted in loss or injury forthe claimant. (Barnett v Chelsea & Kensington Hospital 1969 1 QB 42810).
To determine if Joe is liable for Fern her injuries,the Caparo test will be applied (Caparo Industries pIc vDickman 19902 AC 60511). There is evidence that Joe was driving too fast toshow off to his friends. Because of his fast driving, harm was foreseeable.Since Joe and Fern were on the same parking lot when the accident occurred,there is sufficient proximity between them. Joe was driving too fast on apublic parking lot. Because the parking lot is a public place, the normal rulesfor motor vehicles apply. Therefore, it is just, fair and reasonable to imposea duty of care.
To prove that there is a breach of duty of care, it has to be determinedif Joe was acting like a reasonable man would. (Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781, 156 ER 1047).12A reasonable man would not have driven too fast because it is against the motorvehicle rules. Because Joe was driving too fast, the likelihood of injury isgreater (Boltonv Stone 1951AC 850). Because Joe was driving too fast, the seriousness of injury of greater,which means that the Joe should have done more to protect Fern (Paris V Stepney Borough Council 1951 AC 36713). Even though Joe only recently passed his forklifting operating test, the lack of training of Joe is not relevant because thestandard of skill is the same for everyone. (Nettleship v Weston 1971 3 WLR 370).
14If Joe had not driven too fast, he could have stopped,or Fern could have moved out of the way. Therefor is can be states that Fernher injuries were causes by Joe breaching his duty of care, and if he had notbreached his duty of care Fern would not have been injured. (Barnettv Chelsea & Kensington Hospital 1969 1 QB 428)15. Therefore, Joe isliable. Joe could claim that Fern her injuries would not havebeen as severe if she would have worn a helmet. Reynoldsv Strutt and Parker 2011 EWHC 2263 (QB)16 explainsthat when a cyclist is not wearing a helmet and their head hits the ground withless than 12 mph the cyclist can be found contributory negligent. In this case, it isnot clear if Fern hit her head with less than 12 mph, so it is not clear if Joecould use this argument in court.
Century Insurance V NI RoadTransport Board 1942 AC 50917 explains that becausedriving a fork lift is closely related to Joe his contractual employmentduties, Best Buy will be liable for the negligence and Fern can also sue BestBuy for the negligence.Fern has a strong case against BestBuys and Joe, but they may claim that Fern should have worn a helmet. They canonly use Reynolds v Strutt and Parker 2011EWHC 2263 (QB)18 ifFern was going more than 12 mph when she hit the ground. Fern still has a strongcase and can therefor sue for damages for her injuries and her bicycle. Bibliography:Cases:Barnettv Chelsea & Kensington Hospital 1969 1 QB 428Blyth v BirminghamWaterworks Company (1856) 11 Ex Ch 781, 156 ER 1047Boltonv Stone 1951 AC 850).Caparo Industries pIc v Dickman 1990 2 AC 605 Century Insurance V NI Road Transport Board 1942 AC 509Nettleship v Weston 1971 3 WLR 370Paris V Stepney Borough Council 1951 AC 367Partridge V Crittenden 1968 2 All ER 421Pharmaceutical Society Of Great Britain V Boots CashChemists 1953 1 QB 401Reynolds v Strutt andParker 2011 EWHC 2263 (QB) UK primary legislation The Unfair Contract Terms Act 1977 section 2(1)1 Partridge V Crittenden 1968 2 All ER 4212 PharmaceuticalSociety Of Great Britain V Boots Cash Chemists 1953 1 QB 4013The Unfair ContractTerms Act 1977 section 2(1)4 The Unfair ContractTerms Act 1977 section 2(1)5 Caparo Industries pIc vDickman 1990 2 AC605 6 Blyth v BirminghamWaterworks Company (1856) 11 Ex Ch 781, 156 ER 10477 Bolton v Stone 1951 AC 850).8 Paris V Stepney BoroughCouncil 1951 AC 3679 Nettleship v Weston 1971 3 WLR 37010 Barnett v Chelsea Hospital 1969 1 QB 42811 Caparo Industries pIc vDickman 1990 2 AC605 12 Blyth v BirminghamWaterworks Company (1856) 11 Ex Ch 781, 156 ER 104713 Paris V Stepney BoroughCouncil 1951 AC 36714 Nettleshipv Weston 1971 3 WLR 37015 Barnett v Chelsea Hospital 1969 1 QB 42816 Reynolds v Strutt andParker 2011 EWHC 2263 (QB)17 Century Insurance V NI Road Transport Board 1942 AC 50918 Reynolds v Strutt andParker 2011 EWHC 2263 (QB