for my law homework make up question

Introduction
A contract is defective if an aspect of the terms and conditions fall under one of the following categories:
Misrepresentation
Mistake
Duress or undue influence
Illegality
Contractual Incapacity
Defective contracts can result in either a void or a voidable contract

Misrepresentation
Conduct which amounts to an active attempt at concealing a fact.

Types:
Innocent
Negligent
Fraudulent
Makes a contract voidable with recession as a remedy

Walters v Morgan (1861) – Nod, wink, shake, smile
Gordon v Selico (1986) – Homeowners covered up dry-rot in the house.
Compare: Horsfall v Thomas (1862) – The gun was not examined before the purchase.

Opinion
Bisset v Wilkinson (1927) – B purchased land to raise sheep. W said it would hold about 2000 sheep, but he had never raised sheep to know for sure. When B tried, it was not close to 2000.

A person who gives an opinion about something will not be liable unless he had special skill to cause them to rely on that opinion – Esso v Mardon (1976)
“This washing powder washes whiter than white.” Sales talk – Dimmock v Hallett (1866)

Future Intention
Edgington v Fitzmaurice (1885) – Company claimed that proceeds from the sale of debentures would go towards improving the business, but they knew the money was going to be used to pay off company debts

Will not be misrepresentation as long as the intention was honest at that time, even if it changes.
Change in circumstances:
With v O’Flanagan [1936] Ch 575

Duty of Disclosure
Caveat emptor (buyer beware)
No general duty to disclose, so keeping silent is not misrepresentation. – Turner v Green (1895)
Exception:
Latent defects, which a buyer could not reasonably discover for himself by inspecting
See: Sykes v Taylor-Rose [2004] EWCA 299 – Murder at house

Partial Revelation
Dimmock v Hallett (1866) LR 2 Ch App 21

Seller said the land was “fertile and improvable”, but approximately ¼ of the land was useless.

Reliance
Redgrave v Hurd (1881) – Offer to check books
Doyle v Olby [1969] 2 QB 158 – No offer to check books

Sabrina went to buy a perfume shop in Aboutique Mall from David for 50k. David said, “This store brings in about 75k business a month. You can check for yourself if you think I’m lying.” Sabrina, not wanting David to feel bad about her not believing his numbers, she said, “No I believe you.” and concluded the transaction.
After the first month, Sabrina barely made 10k and sued David. The accounts clearly showed that the business was declining and if Sabrina had checked, she would have noticed that before buying the business. Is David liable for misrepresentation?

Fraudulent Misrepresentation
Once there is fraud, the fraudster will be liable for all loss, whether foreseeable or not
Doyle v Olby (1969)
Honest Mistake:
Hedley Byrne v Heller (1963)
Maker of careless, honest mistake may be liable if there is a special relationship

Negligent Misrepresentation
Only when there is a breach of a fiduciary duty*
Usually dishonest statement, but now careless misstatement
Hedley Byrne v Heller [1964] AC 465
*Fiduciary: An individual in whom another has placed the utmost trust and confidence

Remedies
Rescission enables both parties to be restored to the original positions.
Will not be ordered by court where there is:
Affirmation – Long v Lloyd (1958): Accepted repairs, but more faults showed up
Lapse of time – Leaf v International Galleries (1950): Fake painting that was not noticed until 5 years later
Impossibility of restitution – Clarke v Dickson (1858): Bought shares right before the company was liquidated
Third party rights affected – Car v Caldwell (1965): Car was sold to a third party

Mistake
Jamille Broome

Mistakes
An “erroneous belief”

Categories :
Common Mistake – The parties make the same mistake
Mutual Mistake – The parties are mistaken about the same fact under different misapprehensions. “Offer and acceptance” mistake
Raffles v Wichelhaus [1864] EWHC Exch J19
Unilateral Mistake – One party makes a mistake
Hartog v. Collin [1939] 3 AER 566

Fundamental Common Mistakes
Mistake to title – cannot buy something you already own: Cooper v Phibbs (1867)
Subject Matter does not exist
Couturier v Hastie [1856] UKHL J3 – C was shipping corn from Greece to UK and during the voyage, H agreed to buy it when it arrived. The corn decayed and H refused to pay.
Mistake by Identity –
Mistake of identity makes the contract void ab initio and therefore title was not passed to fraudster, so it cannot pass from fraudster to third party.

Mistake by identity: third party rights
Cundy v Lindsay (1877–78) LR 3 App Cas 459 – Man sent letter imitating a reputable company to buy goods from Lindsay. They knew the company well, so shipped goods. He then sold goods to Cundy. Lindsay never received payment.
Compare to:
Phillips v Brooks Ltd [1919] 2 KB 243 – Crook claimed to be Sir Xxx at a jewellery store. They checked the phone book to confirm his address and took £3000 cheque that bounced. He then pawned jewellery for £350. Jewellery store sued pawn shop
Ingram v. Little [1961] 1 QB 31 – Cheque payment for car rejected by sisters until the man said who he was : Pearce LJ “… an individual of apparent standing and respectability”. Car later sold to Mr. Little

Frustration
Legal termination of a contract due to unforeseen circumstances that
Occurs after the contract has been formed; render its performance illegal
Is not due to the fault of either party; and
e.g. Change in law or injury
When a frustrating event occurs the contract is automatically discharged and the parties are excused from their future obligations.
Frustration is not acceptable as an excuse where the circumstance was foreseeable, and is not applicable to certain types of contracts such as insurance policies.

Impossibility of performance

McRae v Commonwealth Disposals Commission [1951] HCA 79

Australian contract law case, relevant for English contract law

Frustration not available when:
An alternative method of performance is possible
The contract is merely more expensive to perform
The event is brought about through one of the parties’ own conduct
The parties have made express provision for the consequences of the particular event which has occurred

Non Est Factum
“That is not my deed”
Can be relied upon if at the time of entering the contract, the person was:
Tricked
Disabled
Not Careless

Non Est Factum
L’Estrange v Graucob [1934]
Not reading fine print was not an excuse
Saunders v Anglia Building Society [1970]
78 year-old lady was tricked into signing a document without reading because she had just broken a glasses

Misrepresentation
Conduct which amounts to an active attempt at concealing a fact.

Types:
Innocent
Negligent
Fraudulent
Makes a contract voidable with recession as a remedy

Opinion
Bisset v Wilkinson (1927) – B purchased land to raise sheep. W said it would hold about 2000 sheep, but he had never raised sheep to know for sure. When B tried, it was not close to 2000.

Will not be misrepresentation as long as the intention was honest at that time, even if it changes.
Change in circumstances:
With v O’Flanagan [1936] Ch 575

Partial Revelation
Dimmock v Hallett (1866) LR 2 Ch App 21

Seller said the land was “fertile and improvable”, but approximately ¼ of the land was useless.

Reliance
Redgrave v Hurd (1881) – Offer to check books
Doyle v Olby [1969] 2 QB 158 – No offer to check books

Mistake
Jamille Broome

Mistakes
An “erroneous belief”

Impossibility of performance

McRae v Commonwealth Disposals Commission [1951] HCA 79

Australian contract law case, relevant for English contract law

Non Est Factum
“That is not my deed”
Can be relied upon if at the time of entering the contract, the person was:
Tricked
Disabled
Not Careless

Duress & Undue Influence
Duress: Forced into contract through threat of violence
Undue Influence: Pressure to contract, which prevents the contracting party from exercising independent judgement
Makes contract voidable

Types of Duress
Physical Duress
“Your money or your life”
Economic Duress
Wrongful or improper threat: A threat to breach a contract “in bad faith” or threaten to withhold an admitted debt “in bad faith”.
Reasonable alternative (but to accept the other party’s terms): an available legal remedy, an available market substitute (in the form of funds, goods, or services), or any other sources of funds this element is not met.
The threat actually induces the making of the contract. This is a subjective standard, and takes into account the victim’s age, their background (especially their education), relationship of the parties, and the ability to receive advice.
The other party caused the financial distress. The majority opinion is that the other party must have caused the distress, while the minority opinion allows them to merely take advantage of the distress.

Threat of violence
Actual or threatened violence causing death or bodily harm, or actual or threatened unlawful imprisonment against the contracting party or member of his/her family.
Three tests for physical duress:
Illegitimate means of persuasion was used
Illegitimate means used was a reason, not the reason
Evidence is ‘honest and accepted’.

Duress can be “a” reason
Barton v Armstrong [1975]
A threatened B with death if he did not agree to purchase A’s shares in the company. B, also thinking that it was a wise decision, entered into the contract, but subsequently changed his mind.

Duress Requirements
The threat must be of serious bodily harm or death
The threatened harm must be greater than the harm caused by the crime
The threat must be immediate and inescapable
The defendant must have become involved in the situation through no fault of his or her own

Duress to goods

Skeate v Beale (1840)
Landlord threatened to sell furniture if he did not receive the rent.

Economic Duress refined defined
Economic duress forces the other to vary the contract based on a monetary disadvantage.
Pau On v Lau Yiu Long [1980]
Lord Scarman: “a coercion of will, such that there was no true consent… it must be shown that the contract entered in to was not a voluntary act.”

Economic Duress
The Sibeon and The Sibotre [1976]
Kerr J: “…if I should be compelled to sign a lease or some other contract for a nominal but legally sufficient consideration under an imminent threat of having my house burnt down or a valuable picture slashed through without any threat of physical violence to anyone, I do not think that the law would uphold the agreement… The true question is ultimately whether or not the agreement in question is to be regarded as having been concluded voluntarily.”

Tests for economic duress
Was there objection by victim?
Was there an alternative course of action other than to give in to the pressure?
Was the victim independently advised?
Did the victim take steps to avoid it?

Affirmation
North Ocean Shipping v Hyundai Construction (The Atlantic Baron) [1979] QB 705

The defendants agreed to build a ship for the claimants for a certain price specified in US dollars. After entering the contract the US dollar was devalued by 10%. The defendants threatened not to complete unless the claimants paid an additional 10% on the contractually agreed price. The claimants had a valuable charter lined up so agreed to pay the additional sums and did pay them without protest. 8 months after delivery of the ship the claimants brought an action to recover the additional sums paid.

Undue Influence
Taking advantage of a position of power over another person.
Makes a contract voidable

Royal Bank of Scotland plc v Etridge [2001]
Husband convinced wife to put the house up as security for a loan to pay off business debt. Husband lied about amount needed and how badly the business was doing.
Constructive notice?

Williams v Bayley (1866)
Son forged father’s name on promissory note for loan. The bank put pressure on father to put up his property for payment.

Positions of Power and Trust

Parent/child
Priest/member of parish
Lawyer/client
Doctor/patient

Illegality
A contract to commit crime, tort or fraud
Everet v Williams (1725)
Everett claimed he was in the business of selling silver, rings and watches. When Williams asked to be taken into partnership, Everett agreed. After dealing together for some time, they had a disagreement over their respective shares of the profits. Everett claimed that Williams was not keeping to the contract and was holding onto more than his proper share.

Illegality (2)
Cowan v. Milbourn (1867)
Contract to lease a lecture-room was breached when the landlord discovered that the lectures were going to be against Jesus.
Blasphemy was illegal at that time and the Courts said, “Christianity is part of the laws of England”

Contractual Incapacity
The inability to understand that a contract is being made and to understand its terms, due to mental or physical reasons.

Minors
Insanity
Intoxication (rare)

Minors
Generally can’t enter into contracts
Was 21 until 1969… now 18

Three types of contracts for minors
Enforceable – Contracts which are binding on minors.
Voidable – Contracts which are binding on minors unless the minor repudiates the contract.
Unenforceable – Contracts not binding on minors unless ratified.

Enforceable contracts
A minor is only liable for a contract of necessaries, and for a beneficial contract of service.
Necessary goods: “Goods suitable for his condition in life, and to his actual requirements at the time of sale and delivery”
Necessary is NOT necessity
E.g., Latest Apple student for Business of Graphic Design student

Necessary Test
To identify whether something is a “necessary” one has to ask two questions:
Is the article capable of being a “necessary” in the eyes of the law
Is the article a “necessary” for this minor.
If the first question must first be answered in the affirmative

Minors
Chapple v Cooper (1844)
A young widow was sued successfully for the funeral expenses for her late husband, as these services were regarded as necessaries

Unenforceable Contracts
Fawcett v Sethurst (1914)
Well-off 20 year old hired a car to transport his luggage
Terms of contract stated that the minor would be held absolutely liable for any damage to the car, regardless of how the damage was caused
Held: Onerous contract

What is an Agency?
An agency is “a legal relationship whereby one person acts for another.”
The person from whom the agent gets authority is the principal
The person who acts for another is the agent

Features of an Agency

This relationship binds third parties
Competency is only applicable to the principal. The principal must have the contractual capacity to employ an agent
Consideration is not necessary
Agents do not need contractual capacity as they could be minors or persons of unsound mind

Agency Test
Necessary authority
Every person who acts on someone’s behalf is not an Agent

Delicious is a lap-dancer at Jiggle Gentleman’s Club. She had to work a minimum number of shifts per week and was paid per shift and per private room session. The owner of Jiggle never paid taxes on the dancers’ services, so the government went after them.
Are they agents or employees?
Spearmint Rhino Ventures (UK) Ltd. v Revenue & Customs Commissioners (2007)

Creation of Agency
Agency can be created by:
Contract (express or implied, oral or written)
Hely Hutchinson v Brayhead (1968)
The Chairman and Chief Executive of a company acted as the de facto Managing Director although he had never been formally appointed to that position. He entered into a contract on behalf of the company which attempted to bind a third party and the company. The third party tried to enforce the contract, but the company claimed that the chairman was acting outside the scope of his authority
Held: Though the director had no authority as chairman, he DID have implied authority as the CEO, and thus the contract was binding on the company. As such the director COULD bind his company on the basis of implied authority.

Implied v Expressed Instructions
The implied authority can exceed the expressed authority ONLY if it does not contradict an expressed limitation that is communicated to a third party

Watteau v Fenwick (1893)
Facts: the new owners of a hotel continued to employ the previous owner as manager. They expressly forbade him to buy certain products including cigars. However, the manager did buy cigars from a third party, who then sued the new owners as the manager’s principal for non-payment
Held: that the buying of cigars was WITHIN the usual authority for a manager of such an establishment, and that if that authority was limited then it MUST be communicated to the third party

Creation of Agency
Ratification (Principal confirms and accepts unauthorised acts by the Agent)
An agent who was appointed has exceeded his authority or
A person who has no authority to act for the principal has acted as if he has the authority.
Estoppel (a person allows another to act for him/her to such an extent that a third party reasonably believes that an agency relationship exists)
Barrett v Deere (1828)
Necessity (a person acts for another in an emergency situation without express authority to do so)
Sachs v Miklos (1948)

Requirements for necessity
While one party has possession of another party’s goods an emergency occurs
This forces that party to take action regarding the goods for the benefit of their owner
It is impossible to communicate with the owner first (constructive notice)

Classification of Agents
Universal Agent – Unlimited authority

General Agent – Authorised only to act within the trade or business of the principal

Special Agent – Only authorised for a specific transaction

Examples of Agents
Power-of-Attorney
Estate Agents
Insurance Brokers
Sports Agents
Sales Staff?

Powers of Agents
To enter into a binding contract with a third party
To buy goods
To hire
To sell goods or property
To agree contractual terms

Duties of Agents
Unless modified by contract, agents generally owe the following duties to their principals:
Duty to obey instructions provided by the principal
Duty to notify and give information
Duty to act with skill
Chaudhry v Prabhakar [1988]: Prabhakar was trusted with choosing a car for Chaudhry that was not in an accident.

Duties of Agents (2)
Duty to protect confidential information
Duty of Personal Performance – cannot delegate duties to third party
Duty to account for monies spent
Duty of loyalty and to avoid conflicts of interest
Boardman v Phipps [1967]: Lawyer of family trust and a beneficiary made a good business choice to save company left in will.

When Principal won’t be liable
Where the terms excludes agency relationships
Said v Butt [1920] – Theatre owner refused his entry

Third party wanted to contract with agent personally
Greer v Downs [1926]

What is Tort?
A Civil wrong, as opposed to a Criminal wrong
Tortious Liability is based on the “fault” of the defendant, so the liability arises out of a wrongful act or wrongful omission (when there is a duty to act)
The claimant must prove that the defendant committed or omitted an act either intentionally or negligently

The Aims of Tort Law (1)
Compensation (Corrective Justice) –

Livingstone v Rawyards Coal Co (1880)
Lord Blackburn: compensation should be “…that sum of money which will put the party who has been injured in the same position as he would have been if he had not sustained the wrong for which he is now getting his compensation…”

The Aims of Tort Law (2)
Retributive Justice – The idea is that the imposition of tortious liability will satisfy the claimant’s need for revenge
Deterrence – The idea is to deter others from doing the same thing.
But what about Vicarious Liability and Workmen’s Compensation Insurance?

Duty of Care
Negligence – Failure to take proper care

Requirements to prove negligence:
A duty of care was owed
There was a failure to perform this duty
The claimant suffered damage (must not be too remote)
Omissions
The law will not generally impose liability for omissions

Donoghue v Stenvenson (1932)
A bottle of ginger beer was bought for Mrs. Donoghue by her friend at a café. After drinking some, she noticed the decomposing remains of a snail in the bottle. She suffered shock and contracted gastroenteritis.
She could not sue for breach of contract against the café owner because her friend paid (privity of contract)
She sued the manufacturer for negligence
The fact that the ginger beer was sold in an opaque bottle meant that no one else had an opportunity to see inside the bottle before it was sold

The Caparo Test
Caparo Industries plc v Dickman [1990]
Reasonable foreseeability – The law will impose a duty of care if a “reasonable man” could foresee that committing or omitting an act can result in harm to another

Proximity – The relationship between the defendant and claimant must be close
Fair, Just and Reasonable

Breach of Duty
A breach is determined by two questions:
How should the Defendant have behaved in the circumstances of the case
Did the Defendant fall below the appropriate standard required

Negligent Mistatements
Hedley Byrne & Co Ltd v. Heller & Partners Ltd (1964)

Lord Reid stated that any reasonable man, knowing his skill and judgement were being relied upon, would have a number of options open to him:
1. he could keep silent and not give any advice or make any statement
2. he could give an answer, but qualify it as being made without responsibility
3. he could give an answer without any such qualification

A duty of care would not exist if…
It involves a public body
Police: Hill v Chief Constable of West Yorkshire [1988]
After her daughter was murdered, a mother sued the police force, claiming that they should have solved the case earlier because he had already had committed 13 murders and 8 attempted murders over a five year period and they had enough evidence to arrest him

No duty of care
Fire Brigade: Capital & Counties v Hampshire County Council and Others [1997] – There is no duty for the fire service to respond to a call and even if they do, there is no duty of care to the owner(s)
Ambulance Service: Kent v Griffiths [2000] – After calling 999, the Ambulance took 40 minutes to arrive

Rescue situations
Wagner v International Railway (1926) NY
The person responsible for the initial situation, will also be responsible for injuries to the rescuer

Causation
Once there has been a breach of an established duty of care, there is still no liability unless there is a casual link.
The question the Courts will ask is: “Was the D’s conduct the cause of, and in any way relevant to C’s loss?”

Remoteness
Even after showing causation, the act must not have been too remote
Foreseeability: The Heron II [1969] – “the tortfeasor is liable for any damage which he can reasonably foresee may happen as a result of the breach, however unlikely it may be, unless it can be brushed aside as far fetched”

Likelihood of Accident
Bolton v Stone (1951)
A man was injured by a cricket ball which was hit over a 17 foot fence and travelled 80 yards from the wicket
Hilder v Associated Portland Cement (1961)
Children usually played on vacant land owned by the defendant, which was close the road and bordered by a 3 foot fence. A motorcyclist was killed when the ball went into the road

Legal Duty v. Moral Obligation to Act
Legal duty can result in a civil claim
Failure to fulfil a moral obligation can only make the negligent party feel bad

“But for” test
Barnett v Chelsea and Kensington [1969]
Mrs. Barnett’s husband went to the hospital suffering arsenic poisoning. The casualty officer turned him away without any examination, telling him to visit his doctor in the morning. The man died a few hours later

“Thin Skull” Rule
Must take your victim as you find him!
Smith v Leech Brain [1962]
The victim’s lip got burned on the job, which became ulcerated and developed cancer and died three years later. The victim was already on his way to getting the cancer because of a condition.

Volenti non fit injuria
“To a willing person, injury is not done”
The defence of volenti non fit injuria requires a freely entered and voluntary agreement by the Claimant, in full knowledge of the circumstances, to absolve the Defendant of all legal consequences of their actions

Nettleship v Weston [1971] 3 WLR 370
Weston was a learner driver. She was taking lessons from a friend. The friend checked that the defendant’s insurance covered her for passengers before agreeing to go out with her. On one of the lessons Mrs Weston turned a bend, Mr Nettleship told her to straighten the wheel but Mrs Weston panicked and failed to straighten the wheel. She approached the pavement and Mr Nettleship grabbed the handbrake and tried to straighten the wheel but it was too late. She mounted the pavement and hit a lamp post. Mr Nettleship fractured his knee..

Nettleship v Weston [1971]
The defendant argued that the standard of care should be lowered for learner drivers and she also raised the defence of volenti non fit injuria in that in agreeing to get in the car knowing she was a learner, he had voluntarily accepted the risk
Held: A learner driver is expected to meet the same standard as a reasonable qualified competent driver. Volenti did not apply as he had checked the insurance cover which demonstrated he did not waive any rights to compensation. His damages were reduced by 50%

Res ipsa loquitur
“The thing speaks for itself.”
Used as evidence to show that the instrumentality or condition causing the injury was in the defendant’s exclusive control and that the accident was one that ordinarily does not occur in the absence of Negligence

The Aims of Tort Law (1)
Compensation (Corrective Justice) –

Duty of Care
Negligence – Failure to take proper care

Proximity – The relationship between the defendant and claimant must be close
Fair, Just and Reasonable

Breach of Duty
A breach is determined by two questions:
How should the Defendant have behaved in the circumstances of the case?
Did the Defendant fall below the appropriate standard required?

Negligent Mistatements
Hedley Byrne & Co Ltd v. Heller & Partners Ltd (1964)

Rescue situations
Wagner v International Railway (1926) NY
The person responsible for the initial situation, will also be responsible for injuries to the rescuer

Causation
Once there has been a breach of an established duty of care, there is still no liability unless there is a causal link.
The question the Courts will ask is: “Was the D’s conduct the cause of, and in any way relevant to C’s loss?”

Legal Duty v. Moral Obligation to Act
Legal duty can result in a civil claim
Failure to fulfil a moral obligation can only make the negligent party feel bad

“But for” test
Barnett v Chelsea and Kensington [1969]
Mrs. Barnett’s husband went to the hospital suffering from arsenic poisoning. The casualty officer turned him away without any examination, telling him to visit his doctor in the morning. The man died a few hours later

Common Defences
Contributory Negligence
Volenti non fit injuria (consent)
Limitation
Novus Actus Interveniens (new act coming inbetween)
Ex turpi causa non oritur actio (illegality)
Exclusion of Liability

1. Contributory Negligence
Only a partial defence
Apportionment – s 28 of the Supreme Court of Judicature Act 1962, as amended

Jones v Livox Quarries [1952] 2 QB 608 Court of Appeal

Lord Denning MR:
“Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself: and in his reckonings he must take into account the possibility of others being careless.”

Contributory Negligence cont’d…
It has nothing to do with whether or not the Claimant’s carelessness was a cause of the accident, but rather it contributed to his damage
Owens v Brimmell [1977] – UK
Gunness v Ramdeo (2001) – Trinidad & Tobago
In both cases, the Claimant sued the driver with whom he was drinking , and then willingly got into the car for a ride home.

Webb v Rambally (1994) – Jamaica
The courts will hold negligent cyclist and pedestrians partially responsible for their injury.

Children
Lynch v Nurdin (1841)
Nurdin left a horse and cart unattended in the street and young Mr. Lynch climbed onto the cart with a friend and went for a joy-ride until he eventually fell off.
Perch v Transport Board (1981) –Barbados High Court
Child can be guilty of contributory negligent if he does not display the degree of alertness and perception expected from a child his age.

2. Volenti non fit injuria (consent)
Complete defence
No liability if the person voluntarily agreed to partake in activity having full knowledge of both the nature and extent of the risk

Drunk drivers
Dann v Hamilton [1939]
The Claimant was injured when she was a willing passenger in the car driven by the Mr Hamilton. He had been drinking and the car was involved in a serious crash which killed him. In a claim for damages the Defendant raised the defence of volenti non fit injuria in that in accepting the lift knowing of his drunken condition she had voluntarily accepted the risk.
Held:
The defence was unsuccessful. The claimant was entitled to damages.

Drunk drivers cont’d…
Asquith J:
“There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff. It is not necessary to decide whether in such a case the maxim ‘volenti non fit injuria’ would apply, for in the present case I find as a fact that the driver’s degree of intoxication fell short of this degree”

Volenti case law
Conden v Basi [1985] – A football player was injured from a tackle, which was described by the referee as “reckless and dangerous” and “serious foul play”.
Morris v Murray [1991] – After drinking all day, both parties decided to go for a plane ride. Morris drove to the airfield and Murray flew the plane. Plane crashed and Morris died.
Blake v Galloway [2004], CA – The claimant was injured whilst playing about with other members of his band throwing sticks at each other. The defendant appealed a denial of his defence on non fit injuria.

3. Limitation
According to the Limitation of Certain Actions Act 1997, as amended:
A claim must be brought within 4 years…
5(2)(a) from the date of tort
5(2)(b) from the date the injury was noticed
5(3)(a) from the date of death

4. Novus Actus Interveniens
Where there is a new intervening act this may break the chain of causation removing liability from the defendant. The legal test applicable will depend upon whether the new act was that of a third party or an act of the claimant.
If the act of the third party was foreseeable, the defendant remains liable and the chain of causation remains in tact. If the act of a third party is not foreseeable this will break the chain of causation and the defendant is not liable for the actions of the third party

Baker v Willoughby [1970]
B was hit by W’s car and suffered a sprained ankle. B later got shot in his leg, which resulted in amputation.
Held: W remained liable for the loss of amenity and lower earning capacity even after the amputation.
The fact that the sprained ankle put B in a vulnerable position, and that the thief escaped, the courts wanted to give some kind of compensation for B’s subsequent hardship, even though novus was clear.
Lord Pearson – although the argument of novus seemed to make logical sense, it would produce a “manifest injustice” if it were allowed to succeed.

Novus – Act of the claimant
If the claimant’s actions are deemed reasonable the chain of causation remains in tact and the defendant is liable for the actions of the claimant. If, however, the claimant’s actions are unreasonable in the circumstances the chain of causation is broken and the defendant is not liable for the actions of the claimant

Reeves v Commissioner of Police of the Metropolis [2000]

McKew v Holland [1969]
McKew sustained an injury at work due to his employer’s breach of duty. He strained his back and hips and his leg was prone to giving way. Whilst in this state he attempted to climb down a steep concrete staircase without a handrail unaided. He got part way down and felt his leg give way so he jumped 10 steps to the bottom. He suffered a fractured right ankle and was also left with a permanent disability.
Held:
The claimant’s action amounted to a novus actus interveniens because his action in attempting to climb the steps unaided knowing that his leg might give way was unreasonable. The defendant was therefore not liable for the injuries resulting from the incident on the stairs.

Rescuers
Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Court of Appeal
Mr Ward and Mr Wileman were employed by the defendant, Hopkins. They had been called to clean out a well. Hopkins tested the atmosphere in the well by putting a lighted candle down the well. The candle returned still lighted and thus he concluded the atmosphere was fine. He and Ward then took a petrol motored pump down the well started it up and left the well leaving the engine running on its own. The motor ran for 1 1/2 hours before it stopped of its own accord. Before leaving the site Mr Hopkins told Mr Ward and Mr Wileman not to go down the well until the fumes have cleared. The following morning Hopkins again told the two not to go down the well until he had arrived on the site. In breach of these orders Mr. Ward went down the well and was overcome by fumes. Mr Wileman called for assistance and went down the well after him. The claimant, Dr Baker, then arrived on the scene. He too went into the well to seek to rescue the two. Unfortunately all three died of carbon monoxide poisoning.

Rescuers cont’d…
Held:
The doctors actions were not a novus actus interveniens. It was foreseeable that if a defendant by his negligence places another in peril that someone may come to his rescue and the doctor’s actions were not unreasonable in the circumstances. The Claimant’s action was not defeated by volenti non fit injuria. He was and as such his actions did not count as freely and voluntarily accepting the risk.

Morris LJ:
it was said that Dr. Baker had been “unreasonably” brave. If a rescuer acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that any injury to him was not the result of the negligence that caused the situation of danger. Dr. Baker tied a strong rope round his body and arranged for the rope to be held by those on the surface, and arranged to maintain oral communication with them. He in no way acted recklessly or negligently.

5. Ex turpi causa non oritur actio (illegality)
Ashton v Turner and Anr. [1981]
After a car robbery, the getaway driver crashed the car. The other thief sued for his injuries

Revill v Newbery [1996]
R tried to break in to Mr. N’s house and was shot. He sued for injuries.
Only successful because of the duty of care owed under Occupier’s Liability.

6. Exclusion of Liability
“Do so at your own risk” is a complete defence
This will then result in consent

White v Blackmore [1972]
A spectator at a car racing event was injured when a car ran into the fence and sent the posts flying.

Sign said: Jalopy racing is dangerous and the organisers accept no liability for any injury including death howsoever caused

Features of an Agency

Agency Test
Necessary authority
Every person who acts on someone’s behalf is not an Agent

Implied v Expressed Instructions
The implied authority can exceed the expressed authority ONLY if it does not contradict an expressed limitation that is communicated to a third party

Classification of Agents
Universal Agent – Unlimited authority

General Agent – Authorised only to act within the trade or business of the principal

Special Agent – Only authorised for a specific transaction

Examples of Agents
Power-of-Attorney
Estate Agents
Insurance Brokers
Sports Agents
Sales Staff?

Powers of Agents
To enter into a binding contract with a third party
To buy goods
To hire
To sell goods or property
To agree contractual terms

When Principal won’t be liable
Where the terms excludes agency relationships
Said v Butt [1920] – Theatre owner refused his entry

Third party wanted to contract with agent personally
Greer v Downs [1926]

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