Practice Test week 6-Negligence Question

Practice Test
• Hopefully everybody has had the chance to read and attempt
the questions that were posted in the announcements on 3rd
April.
• If not I suggest you pause the recording here, complete the twi
questions timed (spend about 25 minutes per questions) and
then resume the recording to see how you went.
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Practice Test: Negligence Question
QUESTION 1 – Negligence
Daniel and Melissa are employed by a postal service company that is responsible for
delivering mail and parcels in Melbourne. Melissa usually drives the delivery van and they
both go from house to house to do the actual deliveries. From doing hard manual labour for
many years, Daniel has had an issue with his ankle that means that he sometimes loses
balance and is prone to leg injuries, however, this doesn’t interfere much with his delivery
work.
To avoid the need for Melissa and Daniel to cross the street when they are delivering mail and
parcels, workplace health and safety regulations state clearly that they must do two trips to
cover both sides of a street. On their morning trip, they must therefore do one side of all the
streets on their route and upon returning in the afternoon, they do the other side. Further, in
their employment contract it is stated, that they are not allowed to listen to music when
delivering the mail, however, Daniel and Melissa regularly ignore these regulations to save
time and to make their work more enjoyable.
Unfortunately, one morning as Daniel is running across the street to do a delivery whilst
wearing AirPods, he is struck by a car driven by an intoxicated driver, Shanae. Daniel suffers
serious physical injuries to his body and especially his left leg requires extensive surgery. He
is therefore taken to the hospital.
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Practice Test: Negligence Question
REQUIRED:
Please advise Daniel if he might be successful
in suing Shanae under negligence. Please
explain fully, using relevant legal authority.
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Marking guide…
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How to start
Read the question
• Advise Daniel as to whether he would be successful in negligence against Shanae.
• Please explain fully, using relevant legal authority.
• Laws, case law
IRAC
• Issue (1 sentence)
• Rule (2 sentences)
• Application (this is where you should spend most of your time)
• Conclusion (short and precise 1-2 sentences)
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Overview of how the remaining part of your answer
could be structured – Rule, application, conclusion

1. Issue
2. Main rule (of negligence)
3. Rule of DOC (case law)
   • Apply
   • Mini conclusion
4. Rule of Breach (case law)
   • Apply
   • Mini conclusion
5. Rule of Causation and damages (case law)
   • Apply
   • Mini conclusion
6. Rule of Defences (case law)
   • Apply
   • Mini conclusion
7. Main conclusion: answer the question posed  can A successfully hold C liable under
   negligence???
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   ISSUE and main rule
   Issue: The issue at hand is whether Daniel would be
   successful in a negligence claim for his physical
   injuries sustained and hospital bills against Shanae.
   Main rule: In order to be successful in a negligence
   claim, the defendant must prove, DOC, breach and
   causation as per Donoghue v Stevenson
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   Establishing DOC: Recognised DOC
   • Rule: In certain relationships it is recognised that a duty
   of care exists. On the facts, relevant here is that car
   drivers owe a duty of care to other road users:
   • Imbree v McNeilly
   • Application: As a a car driver on the road Shanae owes
   other road users such as Daniel a DOC
   • Mini conclusion: this supports that a DOC is owed by
   Shanae to Daniel.
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   Establishing DOC: Rule and Application
   Discuss the two tests:
   • The “neighbour test”:.
   First, it is necessary to show that the risk of injury to Daniel was reasonably foreseeable to Shanae.
   This follows from the “neighbour” test under Donoghue v Stevenson, requiring reasonable
   foreseeability of injury to the plaintiff through the defendant’s failure to take care. The “neighbour”
   principle should be discussed by way of definition. As stated in Donoghue, a duty of care is owed to
   “persons who are so closely and directly affected by my act that I ought reasonably to have them in
   contemplation as being so affected.” The neighbors of Shanae are anyone who uses the roads which
   includes Daniel as a pedestrian crossing the road.
    Who is the neighbour of Carlos as a road user? the neighbours of S are anyone who
   who uses the roads which includes Daniel as a pedestrian crossing the road. as he is
   so closely and directly affected by the actions of S that S should reasonably have
   contemplated that they would be affected when S drove on the road whilst
   intoxicated.
    Is D included in this group of people: D is included as a neighbour of S’s because D
   is a road user ( this includes pedestrians). A reasonable person would hence have
   had foreseen the possibility of harm to D.
   Mini conclusion: The above analysis supports that D is a neighbour of S
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   Establishing DOC: Rule and Application
   Discuss the two tests:
   • The “Salient features”:.
   Secondly, as shown in Sullivan v Moody, the salient features of the case are taken into account to
   determine whether the defendant owes the plaintiff a duty of care. Relevant factors here are (a) the
   nature and degree of Shanae’s control over the risk of harm; and (b) the degree of Daniel’s
   vulnerability and his reliance on the proper exercise of reasonable care by Shanae. Shanae, as
   driver, had control over the risk of harm to Daniel who was using the road for delivering mail.
   Shanae’s intoxication made the danger of hitting Daniel even greater. Daniel was vulnerable to the
   way Shanae drove. Shanae therefore owes Daniel a duty of care. However, as a counterargument, it
   may be claimed that Daniel was not sufficiently vulnerable or reliant in that he was told of the danger
   of running across the street due to the regulations.
   Mini conclusion: The above analysis supports that S owed a DOC to D.
   ur of
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   Breach of DOC: Rule and application
   Did Shanae breach the duty of care owed to Daniel?
   • A failure by S to live up to the standard of care that a reasonable person would adhere to in the
   circumstances as seen in Wyong Shire Council v Shirt.
   • Has Shanae acted as a reasonable person  objective test (Imbree v McNeilly)?
    Set the standard – what would a reasonable person have done in the position of S: Not drive intoxicated
    application: A reasonable person would have not been intoxicated while driving and this could
   lower reaction time. Shanae drove while intoxicated so mostly likely breached her DOC.
    Compare this standard to the actions of S?  apply
    No, she drove intoxicated and therefore lowered her reaction time
    Any relevant factors?
    The court may consider relevant factors to help determine breach, such as the probability of
   harm (Bolton v Stone), common practice (Mercer’s case) and the cost of eliminating the risk
   (Latimer v AEC).
    probability of harm (Bolton v Stone): high probability of a pedestrian being hit on the raod 
   apply
    gravity of harm (Paris v Stepney Borough Council): potentially serious harm  apply
    cost of eliminating risk (Latimer v AEC):  apply: Don’t drive intoxicated!
    common practice (Mercer’s case): Road laws and regulations
   • Mini conclusion: The above analysis suggest that S did breach her DOC owed to D
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   Causation: rule and Application
   Did Shanae’s breach cause Daniels’s harm: as per 51 of the Wrongs Act
   Discuss the two different damages separately.
   • For causation, use “but for” test (Yates v Jones):
    But for the actions of Shanae’s, Daniel would have not suffered a physical
   injury, there was no break in the chain of causation (no one else interfered
   etc.)
    Loss of income and medical expenses: but for Shanae’s breach, Daniel
   would have not suffered loss of income or medical expenses for his injury,
   there was no break in the chain of causation (no one else interfered etc.)
   For remoteness, use reasonable foreseeability (Wagon Mound case); (Yates v
   Jones
    Anthony’s injury is not too remote or too far fetched it is reasonably
   foreseeable that when a pedestrian is hit by a car they will suffer a physical
   injury.
    When someone is physically hurt, it is not too remote that they will not be
   able to perform work that is physical and that they will incure medical
   expenses.
   • Mini conclusion: The above analysis suggests that S did cause the physical injuries
   and the loss of income.
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   Causation: Eggshell skull rule
   The damages suffered might be more severe because of Daniel’s
   preexisting condition.
   However, under the eggshell skull rule Shanae will be liable for the
   full extent of the harm suffered by Daniel.
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   Defences: Rule and Application
8. Voluntary assumption of risk (100% defence) as per Rootes v Shelton and Wrongs Act (Vic)
   ss 53-54
   (1) Plaintiff had full knowledge and appreciation of the risk, and;
   (2) the plaintiff freely and willingly agreed to the precise risk that eventuated.
   If successful, liability of D is reduced by 100%
   Application: no voluntary assumption of risk (Agar v Hyde): Shanae may claim that Daniel
   voluntarily assumed the risk of running across the street in that he was warned of the danger of
   doing so and that it is a matter of experience and common sense to know of the risk of running
   across streets. This is unlikely as courts re reluctant in granting voluntary assumption of risk if
   voluntary assumption.
9. Contributory negligence (partial defence) (p.238): plaintiff contributed in some way to their
   own loss or injury as per Ingram v Britten; s 26 Wrongs Act 1958 (Vic)).
   If successful, claim will be reduced (shared between D and P)
   Application: YES: Shanae may claim that Daniel contributed to his injury in that he was not
   looking after his own safety in that he ran across the street – this is because he went against the
   regulations and listened to music.
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   Conclusion
   As all the elements of negligence are
   established, Shanae would be liable to
   Daniel for the loss he has suffered but
   the claim might be reduced due to one
   of the defences.
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   It’s all about practising… a few tips…
   • Provide the rule with support in case law: To owe a DOC it must be provided that
   the P was the neighbour of D in legal context, see Donoghue v Stevenson
   • You don’t have to write out the case law in full – e.g. putting Donoghue v Stevenson
   is good enough
   • Underlining case law makes it easier for your marker 
   • IRAC:
    Rule: we don’t want a summary of the case law, we want the legal principle that
   can be derived rom the matter (ratio decidendi) – see my example above
    Application – write out full sentences bringing out as many facts that support
   that a rule applies/ does not apply
   • Type so someone else can read it. I know you are in a hurry, but your tutor has to be
   able to understand your work to give you marks
   • Spend the same amount of time on each question – if you are running out of time,
   you can put down a few bullet points – they wont give you full marks but maybe you
   can get a point for them which is better than nothing.
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   Contract
   Formation
   Question
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   Practice Test: Contract Formation Question
   QUESTION 2 – Contract
   On 14 April, Rebecca rings her close friend Geoff and offers to sell him her 2009
   Mercedes convertible for $90,000. Geoff asks for a little time to think it over and is
   told by Rebecca, “sure, I will leave the offer open until Wednesday 19 April”.
   On Monday 17 April, Geoff posts a letter to Rebecca agreeing to buy the Mercedes
   at the specified price subject to Rebecca’s assurance that the car is in top
   mechanical condition.
   Later that Monday Rebecca is approached by her work boss, Cathy, who wishes to
   purchase her Mercedes. Cathy offers $95,000. Rebecca immediately accepts and
   leaves a message on Geoff’s mobile phone message bank telling him that she has
   decided to sell to Cathy instead.
   Geoff hears Rebecca’s message on Tuesday 18 April and Geoff’s letter to Rebecca
   is not delivered until Thursday 20 April.
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   Practice Test: Contract Formation Question
   REQUIRED
   Advise Geoff of whether he can enforce the
   contract against Rebecca. Please explain fully,
   using relevant legal authority.
   (20 marks)
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   Marking guide…
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   ISSUE and main rule
   Issue: : The legal issue at hand is whether a contract
   has been formed with Rebecca and Geoff and or
   Rebecca and Cathy.
   Main rule: To establish a binding contract, three
   elements must be proven: agreement, intention and
   consideration: (Carlill v Carbolic Smoke Ball).
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   Contract between Geoff and
   Rebecca???
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   • On April 14 Rebecca offers Geoff to sell him her car
   for $90,000. This is a definite undertaking to be
   bound. It has been communicated. It is therefore a
   valid offer (Carlill v Carbolic Smoke Ball).
   • Rebecca’s offer was not an option as no
   consideration was paid by Geoff to keep it open till
   Wednesday April 19 (Goldsborough Mort v
   Quinn). It is therefore a revocable offer and she is
   not bound to keep it open.
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   • As they are close friends, there may be no intention
   to be bound (Balfour’s case).
   • However, this presumption can be rebutted given
   the amount of money involved and the use of
   written communications: Wakeling v Ripley.
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   • Geoff posts his acceptance of Rebecca’s offer on
   Monday April 17. However, his acceptance is
   conditional upon Rebecca’s assurance that the car is in
   top mechanical condition. Since his acceptance
   embodies a new term, it amounts to a counter offer, and
   this destroys Rebecca’s original offer (Hyde v Wrench).
   Also, qualified acceptance is inadequate (Masters v
   Cameron).
   • However, his counter offer is only effective when it is
   communicated to the offeree, Rebecca. This is
   supported by the rule in R v Clarke which states that an
   offer can only be validly accepted when the offeree
   knows about and acts in reliance on the offer.
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   RULE & APPLICATION: ACCEPTANCE
   (Postal Rule?)
   • If Geoff’s letter had been unconditional acceptance, there
   would still not be a contract between Geoff and Rebecca.
   Geoff’s acceptance letter was not provided within the offer
   period. Under the postal rule, acceptance occurs on the
   sending of the letter of acceptance (Adams v Lindsell).
   • However, the use of the post is not an appropriate means of
   acceptance here as the offer was made by phone – post is a
   slower means of communication. Geoff’s acceptance
   therefore occurs when Rebecca receives notice of his
   acceptance which is April 20 and this is outside the offer
   period (until April 19). There is therefore no binding contract
   between Rebecca and Geoff.
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   RULE & APPLICATION: ACCEPTANCE
   (Postal Rule?)
   • If Geoff’s letter had been unconditional acceptance, there
   would still not be a contract between Geoff and Rebecca.
   Geoff’s acceptance letter was not provided within the offer
   period. Under the postal rule, acceptance occurs on the
   sending of the letter of acceptance (Adams v Lindsell).
   • However, the use of the post is not an appropriate means of
   acceptance here as the offer was made by phone – post is a
   slower means of communication. Geoff’s acceptance
   therefore occurs when Rebecca receives notice of his
   acceptance which is April 20 and this is outside the offer
   period (until April 19). There is therefore no binding contract
   between Rebecca and Geoff.
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   Contract between Cathy and
   Rebecca???
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   RULE & APPLICATION: OFFER & ACCEPTANCE
   • On Monday April 17 Rebecca accepts her boss
   Cathy’s offer to purchase her car for $95,000.
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   • Intention is not at issue as Rebecca and Cathy are
   not friends or family members (Balfour v Balfour)
   and even if the presumption that there is no
   intention to create legal relations extends to the
   worker/boss relationship, the amount of money
   involved suggests that Rebecca and Cathy did
   intend to be contractually bound (Wakeling v
   Ripley).
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   Consideration is present: Cathy promises Rebecca
   $95,000 in exchange for which Rebecca promises
   Cathy her car. There is therefore a binding contract
   between Rebecca and Cathy.
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   Rebecca revoking her offer
   to Geoff – Is this valid?
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   RULE & APPLICATION: Revocation of offer to Geoff
   • On April 17 Rebecca leaves a message on Geoff’s mobile
   to let him know she sold her car to Cathy.
   • However, this revocation of her offer is not effective until
   April 20 when it is received by Geoff: Byrne v Van
   Tienhoven.
   • The timing of the revocation if irrelevant on the facts as
   Geoff had not accepted Rebecca’s offer, but made a
   counter offer effective when Rebecca received Geoff’s
   letter. The principle of revocation of offer is not
   applicable on the facts.
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   • There is no contract between Rebecca and Geoff
   as Geoff had not unconditionally accepted
   Rebecca’s offer.
   • Rebecca has, however, entered into a binding
   contract with Cathy.
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