The Promenade’s management is the property owner. It is clear that property owners owed customers a duty of care as it was decided in Australian Safely Stores Pity Ltd V Glazing. Therefore, the Promenade’s management owed Elsie a duty of care. If the Promenade’s management failed to exercise the proper standard of care, as in Donahue v Stevenson, the Promenade’s management breached the standard of care. It was reasonably foreseeable that certain visitors would slip due to the slippery floor.
Moreover, as Charles, the tour deader, told Elsie to be careful of slipping, it was clear that a reasonable person should have noticed the danger of the slippery floor. However, the arcade’s management didn’t do any things to prevent visitors from slipping. They could have organized cleaners to clean the wet floor and put a notice board or a sign to remind visitors. Thus, the breach of standard of care is established. Last but not the least, if Else’s losses were caused by the defendant’s negligence and were the losses reasonably foreseeable to prove the Promenade’s management is negligence.
It was evident that Else’s injure was caused by the negligence of the Promenade’s management. It is because slippery floor, which the Promenade’s management failed to have it clean by organizing relevant workers, that Elsie would fall and get injury. Elsie could have avoided the accident if the Promenade’s management exercise it’s standard of care(clean the wet floor and put a warning sign). And it is obvious that the damage was foreseeable. It is universal recognized that people would highly likely slip due to the wet floor, thereby, causing a physical injury.
Therefore, Elsie can sue The Promenade’s management for negligence. However, as it was demonstrated in Moore v Woodworker, if Elsie had known about the risk but still went up the floor, the responsibility should be shared by two parties. The tour leader had clearly reminded Elsie the danger of the wet floor, however, Elsie still chose to take the risk. Thus, the responsibility should be shared by two parties. However, the exact proportion of the responsibility should be decided with further details. Q: Does Trudy have any claim? The issue is whether an innocent bystander can sue for damages.
First, we can exam whether Trudy can sue the management for negligence. According to the criteria we explained above, The Promenade’s management owned Trudy a duty of care. As is was explained in Donahue v Stevenson 5, if the Trudy would closely and directly affected by the Promenade’s management’s act ,then the Promenade’s management owe Trudy a duty of care. Trudy is a lawful customer. The Promenade’s management is the property owner. It is clear that property owners owed customers a duty of care as it was decided in Australian Safely Stores Pity Ltd V Glazing.
Therefore, the Promenade’s management owed Elsie a duty of care. As it was shown in Modular Triangle Shopping Centre Pity Ltd v Nazis,7 if there is no a “high degree of certainty’ that harm will follow from a lack of action, the Promenade’s management have no standard of care to control persons from inflicting harm upon others. In Trusty’s case, however, no such “high degree of certainty’ exits. It is reasonable to say certain people could have slipped due to the wet floor. Yet, the probabilities of wet floor would cause a bystander’s injury is rather low.
Trudy didn’t faint or injured herself because of he wet floor. She saw the fall of Elsie and causing the following physical and psychological injuries. In addition, defendant is not always liable even it could have done differently to avoid the potential harm to plaintiff, as it was revealed in Romeo v Conservation Commission of the Northern Territory (1998) 192 CLC 431 (High Court). 8 . Lastly, the burden of preventing witness of the accident from faints and shocking are too high to exercise.
Therefore, the breach of standard of care is not applied in this case due to the unpredictability and high burden f preventing witness of the accident from shocking and faints. If Else’s losses were caused by the defendant’s negligence and were the losses reasonably foreseeable to prove the Promenade’s management is negligence. In Trudy case, although the lack of action is a necessary condition of Trudy loss, it is not appropriate to say the Promenade’s management is negligent because a reasonable person would not foresee the faints of Trudy.
Therefore, The Promenade’s management is not liable for Trusts accident because it didn’t breach the standard of care to Trudy and is not directly responsible for her mage. Q: Are Hans’ and Franc’s requirements able to be enforced as terms of the contract? It was obvious a commercial contract. So, the first question is whether the representation is a term of a contract, a mere representation or a mere puff. If a reasonable person would have regarded the representation as promissory, as it was held in Hospital Products Ltd v United States Surgical Corporations, it amounted to a term of the contract.
Scene’s Empire would therefore breach the contract. If it was a mere representation, as in Oscar chess Ltd v Williams, then it is not a term of the contract. Thereby, the band would have to rely on law of misrepresentation, if applicable. If the oral statement was a mere puff, then the band has no legal action against Scene’s Empire. In order to determine which group is the representation in , a reasonable bystander test should be introduced, as in Oscar chess Ltd v Williams 1 1 and Hospital Products Ltd v United States Surgical Corporation 12 . N my opinion, the oral statement of Scene’s Empire is a term of a contract. By accepting the additional requirement and offering to add those requirements into the contract, Scene’s Empire clearly wowed an intention to make them into the contract as terms. Besides, because the document had already been prepared and the oral statement was made on the same day prior to the signing of the document, the additional requirements are terms of the contract according to Van Den Searches v Chapel. 3 Therefore, the representation is a term of the contract. Then, the question would be the kind of terms the representation is. If a representation is promissory, As in J J Savage and Sons Pity Ltd v Blarneyed ,is not contradict the main contract, as in Hoot’s Pity Ltd v Spencer (1919)27 CLC 13315, and the contract is without exemption clause denying the existence of any collateral warranty, as in Agenda Ltd v Burgess (1984) 16, a representation is a collateral warranty.
By offering to add the requirements into the contract, Wolfs offer clearly is promissory. In addition, new requirements are not contracting the main contract. Lastly, there is not clear evidence showing the existence of exemption clause which denies no other collateral warranty exists. Therefore, the representation is a collateral warranty. However, the court should take other factors into account, as in Ross v Allis-Chalmers Australia Pity Ltd. Since there is a written contract, parole evidence should be presented, as Hope v RCA Videophone of Australia Pity Ltd illustrated, otherwise, the decision of the court should only be subjective to written contract. Wolf and Tome clearly reached an agreement over the phone and the fact was recognized by both two parties. In addition, no clear evidence of clarify ambiguities, correct errors and complicated background facts exists in the document.
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