I am currently in my first year of LLB at the University of Nottingham and I have just completed two practice essays: one on agreement in Contract law and one on causation in Tort. I was just wondering if anybody would be able to provide some feedback and maybe even a rough percentage mark? It would be greatly appreciated and don't be afraid to be harsh.
Thank you so much in advance!
TORT QUESTION AND ESSAY:
1. Over a period of many years, Phil, had a series of jobs with different firms that manufactured metal goods. From 1960 to 1965 he was an employee of Alpha Metals Ltd, and from 1965 to 1970 an employee of Brassware Ltd. From 1970 to 1975 he worked as a self-employed contractor (doing similar work) for Chem Eng Ltd. All through this period he was an occasional smoker. It is established that the work methods adopted by Alpha Metals and Brassware (and subsequently by Phil himself) in each case negligently exposed him to a particular kind of dust that contained chemicals that were known to carry a risk of causing lung cancer. Smoking is also known to be a cause of lung cancer. There is expert evidence that it is not possible to say in relation to any individual cancer which exposure caused the disease and that the exposures do not operate cumulatively. There is statistical evidence that shows that the exposure by Alpha Metals and Brassware each independently generated 40% of the risk of Phil’s developing lung cancer, the period of self-employment with Chem Eng 10% and smoking 10%. Phil develops lung cancer and wishes to sue Alpha Metals and Brassware.
In order to be awarded damages in tort, Phil must claim through negligence. To gain damages through the tort of negligence, Phil must first establish that each employer owes him a duty of care. According to, Wilsons & Clyde Coal Company Limited v English, employers owe a duty of care to employees, in which the employer must take reasonable care for the safety of his own workmen. This is because the courts want to encourage employers to ensure a safe system of work. This means that, according to the facts, Alpha Metals ltd and Brassware ltd do owe Phil a duty of care to take reasonable care in providing a safe working environment as they are both Phil’s employers.
Having established that the two proposed defendants indeed owe Phil a duty of care, Phil must then establish whether these employers had indeed breached this duty. As stated in the case itself, “work methods adopted by Alpha Metals and Brassware (and subsequently by Phil himself) in each case negligently exposed him to a particular kind of dust” This infers that both employers had indeed been negligent by allowing for their employees, including Phil, to be exposed to this dust. This means that it is likely that Alpha Metals ltd and Brassware ltd did breach their duty owed to Phil as, by negligently allowing him to be exposed to dust which can cause cancer they have failed to provide a reasonably safe working environment for their employee.
However, in order to establish a claim in negligence, a causal link must also be found that demonstrates the defendants’ negligence caused the plaintiff’s harm. Phil should therefore prove causation in fact. The primary method for considering causation in fact is the ‘but for test’. This is a test that asks, if the negligence had not occurred, would the injury still have occurred. For example, in Barnett v Chelsea and Kensington Hospital Management Committee, a causal link was not established because the patient would have died regardless of the doctor’s negligence. Therefore, no causal link was established and the defendant, although found liable for breach of duty, was not liable to pay compensation. However, the but for test may not be an appropriate method of ascertaining causation within the facts of this case. This is because the issue here is that this is an indivisible injury where are multiple possible defendants whose negligence may have triggered Phil’s injury. Therefore, each defendant could potentially argue that if it wasn’t for their negligence, the injury may still have occurred due to the negligence of another defendant. Therefore, it would be inappropriate to apply the but for test for causation based on the facts of this case. Since it is impossible to decipher which defendant in particular caused the harm, the issue we must now consider is how to establish a causal link where there a number of possible defendants. This issue may be resolved through applying exceptions to the test for but for causation.
A notable exception to the but for test for causation is that established in Fairchild v Glenhaven Funeral Services Ltd . The legal principle discussed within this case concerned a form of cancer that was triggered by asbestos. However, just as in this case, the cancer may have been triggered under the employment of a number of defendants and it was impossible to prove which defendant’s negligence actually triggered the disease.The House of Lords unanimously held that proof that negligent conduct increased the risk of an injury was sufficient to establish the causal requirement in respect of liability. The Fairchild exception applies where there are multiple defendants in breach of a similar duty because it would be unjust as a matter of policy to deprive a claimant of compensation simply because he is unable to prove the impossible. Therefore, since the case at hand also involves an indivisible diseise, which could have been triggered by any one of multiple defendants in circumstances where it is impossible to find which one, it may be concluded that, under Fairchild all of the employers’ should be liable for Phil’s harm. Howeer, a major criticism of Fairchild is that they did not establish how this liability for the harm should be shared out between the defendants. Assuming that the courts were to accept the analysis taken in Fairchild, the next issue that must be considered is therefore how the liability and damages would be divided between the defendants.
This question has been discussed by the courts in Barker v Saint-Gobain Pipelines plc . Here, it was concluded that damage should be apportioned between the defendants according to how much they materially increased the risk of the harm occurring. This is because, based on the facts of the case, it would be unfair that the claimant should lose all damages due to a period of self employment whilst it also seemed unjust to make one defendant pay all damages whilst another, whose negligence could also have triggered the cancer, could pay nothing. Therefore, applying the facts in Barker, te damages would most likely be apportioned between the defendants according to the probability that the cancer was triggered under their employment. Therefore, based on the facts, Brassare ltd would pay 40% and Alpha metals would also pay 40%. The 10% probability that this was triggered under self-employment would therefore also deducted from the damages payment.
However, both Barker and Fairchild were concluded based on the development of mesothelioma caused by exposure to asbestos, however, the case at hand does not mention any asbestos exposure. Therefore, this difference in facts may mean that the Fairchild exception could not be extended and applied to the case at hand. It is far more likely that the courts will not extend the reasoning in Fairchild to Phil’s case because, despite the similar situation, mesothelioma caused de to exposure to asbestos takes far longer to develop after the cancer has been triggered than other cancers, such as lung cancer, therefore, the courts are reluctant to extend the principle where it may be easier to prove which defendant is liable.
Therefore, to establish a causal link and be able to claim damages through negligence, Phil must also consider other exceptions to the but for causation rule. One arguably suitable exception may be that established within McGhee v National Coal Board .Here, the defendant was found to bel liable for materially increasing the risk of developing the disease (dermatitis). Within this case, it concluded that it was not necessary to affirmatively establish that the defendant’s negligence caused the harm, just that they significantly contributed to the development of the disease. This is because the court felt it was unjust to prevent damages where the defendant had obviously been negligent simply because the claimant could not affirmatively prove that the negligence caused the diseise. However, dermatitis, the diseise involved within Mcghee, is a divisible diseise, which can get worse over time as the claimant is exposed more the dust. However, Phil’s injury is indivisible, and can only actually be caused by one claimant. Therefore, the issue in Phil’s case is not whether one defendant’s negligence helped cause the diseise, but which defendant;s negligence triggered the cancer. Therefore, it is likely that the principles established within Mcghee that states it is enough for the claimant to simply establish a material contribution to the diseise could not be applied to the facts of Phil’s case.
Another approach Phil may be able to take, is the doubling the risk approach. This has been established in Heneghan v Manchester Dry Dock & others . Here the court found that causation could be established with multiple possible defendants if it could be proven that e defendant’s breach of duty doubled the risk of veloping the diseise or by Establishing that the defendant’s breach of duty made a material contribution to the disease in accordance with Bonnington Castings Ltd v Wardlaw , in which exposure to dust caused by a hammer was found to provide a causal link as it materially contributed to the disease. What this means is that a causal link will not be established if it cannot be proven that there is a significant likliehood that this caused the diseise Therefore, since Phil’s smoking only contributed a 10% probability towards the development of the diseise, this would probably be disregarded. This is because 10% is likely to be considerd negligible and would most likely not be considered to have materially increased the risk of the diseise’s development. Therefore, it is also likely that, according to his analysis, the 10% probability concerning Phil’s period of self employment would also be disregarded and not be deducted from the damages because this 10% may also be considered to have no materially contributed to the risk. Although some may argue that neither Alpha Metals and Brass Aware significantly contributed to the risk either, because the probability that the injury was acuird under their employment was only 40%. This is because they may take the analysis that, in order to prove a significant probability of causation, the probability must be 51% or over. However, given that this would mean Phil would likely receive no compensation, despite knowing that one of these defendants did cause his diseise, this would seem like a particularly unjust outcome. Furthermore, 40% is still a significant figure and therefore I would argue that, assuming this analysis, both Brassaware ltd and Alpha Metals ltd most likely caused the diseise and therefore they are both equally liable to have caused Phil’s lung cancer. Furthermore, the Heneghan case also involved lung cancer and therefore, unlike Fairchild and Barker, it is unlikely tha the court would disregard this analysis based on the facts. Therefore, either Phil would choose a defendant to sue and that defendant would sue the other for the difference of 50% to share the damages equally , or Phil would probably sue both defendants for 50% of the damages.
CONTRACT QUESTION AND ESSAY:
1 By email, Alexander Ltd, a supplier of office equipment, sends its new electronic catalogue to all potential customers on its mailing list.
Advise Alexander in EACH of the following SEPARATE situations-
(a) Brutus is interested in acquiring a new Colossus computer, listed in the catalogue as available at a price of £2,500. By email, Brutus orders a Colossus for £2,000. For two weeks Alexander does not respond, but then replies saying that it is happy to accept Brutus’s order “in accordance with the catalogue”. Brutus maintains that he has a binding contract to purchase a Colossus for £2,000.
(b) The catalogue includes a Babylonian desk at a price of £1,000. This is a mistake; the price should be £1,750. Crassus, who has previously seen Babylonian desks for sale elsewhere at prices ranging between £1,500 and £2,000, orders three of the desks “as per the catalogue” Alexander confirms that the order has been accepted. After delivery, Alexander invoices Crassus for the supply of three desks at £1,750 each.
(c) Diarchus Ltd responds to the catalogue by placing an order for 200 desk chairs at £100 each. At 8.00pm on Thursday evening, Alexander responds by email to say the order is accepted. Early on Friday morning, Alexander realises that it cannot fulfil Diarchus’s order and immediately sends Diarchus a further email apologising but stating that it must decline the order. Neither email is read until about 12.00 noon that day, when the second email is read shortly before the first.
(d) Elinor responds to the catalogue by posting a letter placing an order for a Camelot meeting table. The latest in a series of short postal strikes is, however, called shortly after the letter is posted. The strike results in the letter being delayed in delivery by three days. One day before the letter is delivered, Alexander sells the last Camelot table it has in stock to another customer. Alexander is unable to obtain any more Camelot tables.
a. We must first clarify whether there has been an agreement between Brutus (B) and Alexander ltd (A) regarding the sale of the computer and for what price. The first issue we must consider is whether there has been a valid offer. In order to clarify this, we must first consider the listing of the Colossus computer within a catalogue and whether this can constitute an offer. According to Gringer & Son v Gough (surveyor of Taxes) (1986) advertisements in catalogues are not offers, but invitations to treat. This is because if this were to be an offer, if someone was to accept when the stock had run out, this would mean that when the offeror could not provide the item due to a lack of stock, this would be a breach of contract. This is entirely inappropriate since it is almost impossible to change a copy of catalogue when it is someone’s possession to notify of a lack of stock. Since this is an advertisement in a catalogue, A’s advertisement is likely to be an invitation to treat as opposed to an offer. This would mean that Brutus’ email stating he wished to purchase a computer could not be classed as an acceptance as no offer exists and therefore, at this point, there has been no agreement.
We must therefore look elsewhere for an offer in order to determine whether there has been an agreement and whether A must therefore sell the computer. The next issue we must therefore consider is whether B’s email could classify as an offer. It does seem that B’s email to purchase the computer for a price of £2,000 is an offer, in which Gringer & Son v Gough (surveyor of Taxes) (1986) also asserts that notifying the company that you wish to purchase the product substitutes an offer. Therefore, having distinguished an offer, we must now consider whether an acceptance exists to form an
agreement. Firstly, we must consider the time delay of two weeks following Brutus’ offer and whether this can clarify an acceptance or a rejection. This is an important legal issue to consider because if this time delay is found to be an acceptance, this would mean that A would have to sell the Colossus to Brutus for £2,000 in accordance with his offer as an agreement would have been formed. If B had set a time limit of below two weeks for A’s response, then A’s delay would be classed as a rejection. However, there has been no delay in this case and it is therefore unlikely that this delay in response could clarify a rejection to the offer. However, this delay can also not constitute an acceptance, in which it would be wholly impractical to suggest that every offer one does not reply to can be regarded as an acceptance, for example in the case of spam emails this would lead to lots of unwanted agreements. Therefore, one may suggest that this two-week delay Is not an acceptance.
However, we must also consider whether A’s eventual reply could be classed as an acceptance. If so, an agreement would be formed and A would be forced to sell at the price of £2,000 as outlined in B’s offer. However, this does not seem to be the case, in which A’s reply stating he would accept the order in accordance with the catalogue is not in fact an acceptance, but a cross offer. According to Brogden v Metropolitan Railway (1877) cross offers cannot be classed as an acceptance as they cancel out the original offer. This is because an agreement cannot be found if all of the terms of a contract have not been agreed upon. Therefore, if someone changes the terms of an offer, for example as in this case by stating they agree to sell but for a different price, there has been no meeting of minds because the original party has not agreed to this variation. Therefore, as A replied stating “in accordance with the catalogue’ this would seem to be a cross offer, because he has agreed to sell at a price of £2,500 instead of the £2,000 offered by Brutus. Therefore, there has been no agreement regarding this price and therefore, no acceptance. Thus, it seems to me that Alexander is not liable to sell the computer to Brutus for £2,000 and there has been no acceptance of Brutus’ original offer, simply a second cross offer which has cancelled out B’s original offer. There would only be an agreement here if B was to reply to A’s new counter offer stating he would purchase the product for £2,500. This would satisfy an acceptance and therefore an agreement which would be binding.
b. As previously established, according to Gringer & Son v Gough (surveyor of Taxes) (1986), advertisements in catalogues do not constitute offers but invitations to treat. Consequently, the advertisement in the catalogue of the desk at the price of £1,000 does not constitute an offer but an invitation to treat. It seems clear that Crassus’ (C) intention to purchase the desk constitutes an offer. However, the issue here concerns whether this offer was for the catalogue price of £1,000 as opposed to the intended price of £1,750. According to Lucy v Zehmer, an undisclosed intention when negotiating a contract is immaterial. Therefore, according to the facts of the case, even though A didn’t intend the price to be £1,000 in the catalogue, as the intention to sell at £1,750 was undisclosed, it seems the offer to sell according to the catalogue would be for £1,000. Furthermore, according to Gibson v Manchester City Council, an offer is to be construed objectively as to what a reasonable person would view it to mean so as to place the onus on the offeror to ensure they are clear in negotiations and to avoid hidden agendas. Thus, since the price was stated to be £1,000 instead of £1,750, it would be entirely reasonable to suggest that C’s offer according to the catalogue would constitute a price of £1,000 instead of £1,750. Therefore, Alexander’s confirmation that the order has been accepted is a clear acceptance of this offer to purchase the product as per the catalogue (at £1,000). Therefore, he would not be entitled to send the invoice as he has already accepted an offer to sell the product for £1,000, despite the intended price being £1,750. invoice for the intended price of £1,750
c. It is clear that Diarchus’ placement of an order constitutes an offer, however, in order to see if A is bound by an agreement, we must also consider if an acceptance has taken
place. Alexander is entitled to revoke his acceptance, however only if his revocation reaches the offeree before the acceptance. This is the legal issue we must consider. It could be established that according to the postal acceptance rule, acceptance is received as soon as it is sent. This is because, according to Adams V Lindsell, an acceptance is to be confirmed as soon as it is sent in post in order to prevent delays in the postal service preventing the formation of the contract. If the postal rule is to be applied here, then Alexander would be bound by the agreement as he sent the acceptance of the offer before his revocation and therefore, due to the postal acceptance rule, his initial acceptance would be binding. However, whether email can be distinguished under the postal acceptance rule is still debatable. This is because the entire method of the postal acceptance rule is to mitigate issues with communication that is not simultaneous where the post may be lost on the way to the offeror which may not be the case with seemingly immediate communication through email. However, others have argued that email is not simultaneous as emails could still be lost through the server and therefore the issues concerning post which the postal acceptance rule aims to tackle still apply. Although I approve of the former analysis more, in which I feel there are no issues with the email being lost as one is notified immediately if any issues occur so the acceptance could still be resent, this is still being debated in the courts. Therefore, we must consider A’s options if the postal rule is found not to apply and email is found to be instantaneous.
In Entores Ltd v Miles Far East Corporation, Lord Denning examined that in cases of instantaneous communication, the offer is only accepted when the acceptance is received. One may therefore argue that Alexander had successfully revoked his acceptance because he received the revocation email before the original acceptance. However, this is not necessarily the case. Brinkibon Ltd v Stahag Stahl establishes that it is the responsibility of the offeror to man their machines, which means that acceptance can be taken to have been received in appropriate business hours. Therefore, the acceptance isn’t necessarily when the email is opened but when the email should have been opened. However, in this case the acceptance email was sent late on Thursday night whilst the revocation was sent early on Friday morning. Since ordinary business hours do not span the night time, it would be inappropriate to suggest acceptance could have taken place before Friday morning, when the revocation was sent. This has been re-affirmed by Mondial Shipping and Chartering BV v Astarte Shipping Ltd where an email sent on Friday night was not found to be received until Monday morning. Therefore, since both the acceptance and the revocation of the acceptance could be reasonably seen to be accepted at the same time, where 12 noon could be a reasonable time to open emails, it seems to me that the more appropriate analysis to adopt would be to suggest that acceptance was received at the time the email was actually opened. Therefore, since the revocation was opened first, I would argue that the agreement does not stand as the acceptance was received after the revocation took place. However, if the courts were to find that the postal acceptance rule does apply to emails, then the acceptance would have been binding as soon as it was sent on Thursday night and therefore the agreement would be binding and the revocation of the offer would be entirely irrelevant.
d. As previously argued, according to Gringer & Son v Gough (surveyor of Taxes) (1986) advertisements in catalogues constitute invitations to treat and not offers. Therefore, Elinor’s (E) postage of an intention to purchase a meeting table in response to the catalogue could not be classed as an acceptance and therefore should be construed as an offer. Therefore, since A does not have to accept any offers, and has not accepted this offer by accepting payment or by other means, there exists no binding agreement here and therefore no breach of contract for failing to supply another Camelot table for E.
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