Common Law: Contract and Essential Elements Report

Introduction

A contract is an agreement that outlines specifics details of an issue between different parties regarding a certain matter which is enforceable in a court of law (Meiners et al, 2006). A contract can take two other forms besides agreements i.e. based on promise or legal relationship. A contract must have more than one party who must either be an offeror, the person presenting the offer, or an afferee, the party accepting the offer (Meiners et al, 2006). For a contract to be considered valid it must contain five important elements: consideration, lawful subject matter, agreement, genuine consent and capacity to enter into contract (Turner, 2008). A contract must be valid to be upheld in a court of law; the validity of a contract is determined on the basis of five elements that have been outlined above. Where the conditions of a legal contract are met then it must be performed.

Rules of offer and acceptance

The rules of offer and acceptance that must be considered when forming a contract must be considered and include. (1) An offer must be clearly made and should be in such ‘a form that can be accepted by a reasonable person’, and must remain valid for reasonable time until it is either withdrawn or revoked (Turner, 2008). (2) For a contract to be valid, such an offer must be accepted and clearly communicated through actions or words, and ideally done in the same terms as the offer (Turner, 2008). (3) An offer can be withdrawn at any time as long as acceptance has not taken place (Turner, 2008). Finally, any counter offer made after an offer has been made has the effect of voiding any potential contract that could have resulted and a new acceptance must be obtained for every such new counteroffer.

Requirements to create legal relations

One of the conditions required to certify the validity of a contract is the ‘intention to create legal relations’ (Turner, 2008). This condition is usually determined by the court of law by looking at the nature of contract that was entered by the parties. For purposes of law, agreements are classified into two major categories; domestic contracts and commercial contracts (Turner, 2008). For domestic contracts the law presumes that parties to an agreement had no intention of being legally bound, and consequently terms of such an agreement cannot be enforced legally. The leading case for this legal precedent is Balfour v. Balfour where the court determined that the nature of agreement was domestic and therefore no intention to be legally bound existed between the parties (Meiners et al, 2006).

Consideration

Regarding consideration the law states that there must be exchange of benefits which must not be from the past (Turner, 2008). Additionally, consideration must certify the following rules; (1) it must be made by the person interested in obtaining the goods or services (promisee) and (2) consideration must have at least some monetary value (Turner, 2008). (3) The consideration must not be illusory, meaning it should not be “impossible to quantify or enforce in a court of law” (Turner, 2008).

Legal capacity

The capacity to contract must also be properly done with legally certified party’s that do not include three categories of persons; minors, intoxicated persons and insane persons (Turner, 2008). Additionally, the capacity to contract is also usually extended to other categories of persons or bodies based on current policies of the jurisdiction at the time. These may also include bankrupt entities, aliens, and enemy aliens (Turner, 2008). The intention in all these cases is to protect vulnerable parties, to exercise control of national resources and to sabotage actions of enemy parties by limiting legal agreements with such parties.

Question 1

Any contract between parties must have undergone two basis steps; offer and acceptance. This means that the distinction between an offer and acceptance must be very clear in any given contract, which must also have been made at the same terms. Besides, in the case of offer, “a reasonable person must believe it was intended as an offer and not merely as an indication of intention” (Turner, 2008). There are two other rules of acceptance that are relevant for this case scenario; (1) “acceptance cannot be made on a counter offer, and (2) acceptance must be communicated to the offeror by appropriate words or conduct” (Turner, 2008). So now that we have reviewed the specific rules that applies to this case scenario, let us now analyse the circumstances of this hypothetical agreement

Mary asks David “how much he will sell it for”, rather than how much David will sell ‘her’ the step-machine, to which he replies ‘probably 700 pounds’. There are several things that can be inferred from these statements which points towards the fact that Mary was merely making an indication of intention rather than categorically making an offer which must be the case for a contract to be determined to have been formed. Additionally, Mary’s offer to buy the step-machine at 650 pounds constitutes a counter offer which under contract law does not constitute acceptable offer. This is consistent with the ruling in the case of Harris v Nickerson (1873) where the court held that “the auctioneer’s advertisement was a statement that he intended to sell certain items; it was not an offer that he would sell the items” (Turner, 2008). And finally, acceptance if it was indeed made by David was not done and communicated in appropriate words as required by law. So under the circumstances, Mary’s offer does not constitute any offer at all and David acceptance is also not acceptable legally. The implication is that no contract was formed between the two parties and therefore no ground for legal suits exists

Question 2

For all cases that involve use of snail mail as the accepted or implied means of communication, then the Postal rule must apply. A cardinal rule of Postal rule states “an offer can be revoked (withdrawn) any time before it is accepted”; but in fact this too is a principle for all forms of contract (Gibson et al, 2005). But because postal mail presents special challenges, it becomes necessary to determine the time when offer and acceptance are deemed to have occurred. So two other rules regarding postal rule have been formulated which states “revocation is only complete when the offeree was informed or should have been aware” and consistent with the ruling made on Byrne v Van Tienhoven (1880), and Adams v Lindsell (1818), “Acceptance takes place when it is posted” (Gibson et al, 2005). Now with these rules in mind let us now review the circumstances of the case.

On 16^th October, Omar posts a letter of offer to Tariq and thereby sets the mean of communication as snail mail by doing so. The fact that Tariq does not propose a different mean of communication upon receiving the letter several days later, and in fact replies using the same means implies that snail mail is mutually accepted as the mean of communication. As such Postal rule will now apply. Since, an offer can be withdrawn as long as it has not been accepted, then it appears that Omar was indeed exercising his right to withdraw the offer before it was accepted by Tariq, so he sends another letter on 20^th the day that Tariq apparently also sends the acceptance letter. Now, that would have ideally prevented Omar from entering into a contract except that Postal rule states that “acceptance takes place when the letter is posted” (Gibson et al, 2005). So the fact that Tariq has already sent the acceptance letter implies that the time window that Omar should have withdrawn the offer has in principle elapsed and the contract is now in place.

In any case Postal rule also holds that revocation is assumed to have occurred when the other party “should have been aware” (Gibson et al, 2005). Now, Omar sends the letter on 20^th, practically this will mean it will be several days later before Tariq actually gets to receive the letter. So either way, Omar is too late in avoiding this contract from being formed and is now legally valid.

Question 3

This case scenario is very much similar to the one above except that in this case the mean of communication is telex. As a general rule, Postal rule cannot be applied where the form of communication is determined by the court to be instantaneous, usually through telephone, fax and telex. So foremost Postal rule will not apply under the circumstances. Now, for all forms of instantaneous means of communications the law as a matter of fact holds that “acceptance takes place when communicated” (Turner, 2008). This is consistent with the ruling made in the case of Entores v Miles Far East Corporation (1995), where the court in essence ruled that acceptance is made where the telex communication is sent, regardless of whether the telex was read by the offerer (Contract law, 2008).

Because in this case the parties have opted to use telex as the primary form of communication, then the court assumes that parties hoped to have instantaneous communication, and this indeed appears to have been so. Even if for the sake of argument, Ahmed rightly assumed that no telex messages will be incoming from Simon since it was lunchtime, then there was still enough time to check the telex for the next 1.5 hours when he returned to the office after lunch which Ahmed did not bother to. This raises the question of why Ahmed didn’t even at least check the telex messages before at least entering to another agreement. Lastly, since Simon second telex was a mere acceptance of the same offer, this second telex cannot therefore be interpreted as a counter offer and the original contract as previously formed should stand. So in this case a valid contract was indeed formed.

Meaning, significance and remedy

Condition

A condition is a provision within a certain contract which forms part of the contractual terms. In as far as contracts are concerned, conditions clauses forms the heart of the agreement between parties since their fulfillment are central to completion of the stated obligations by the various parties. For these reasons, conditions have been described as “terms that goes to the very root of a contract” (Contract law, 2008). Because of their importance as central tenets to the implementation of contracts, conditional clauses are of great significance since their breach will almost always lead to damages. This is because breach of a conditional clause by any of the parties will often cause the cancellation of the contract since the principal aim of the contract might no longer be tenable and therefore claim for damages are likely to be entered.

Warranty

Similar to conditions, warranty too is a contractual provision but which has less adverse remedy compared to conditional clauses. Warranty in a contract encompasses any guarantees provided by the parties within the scope of an agreement as assurances based on the intentions of such a contract (Contract law, 2008). Because warranty is merely an assurance of sorts as regard the implementation of contractual obligations, their breach alone would rarely if ever lead to breach of the contract since no fundamental terms of the contract might be affected. Consequently, failure to honor a warranty will rarely lead to damages being awarded since no actual grounds for termination of contract might exist, but injunctions might be entered.

Innominate term

This is another form of contractual terms which arose from the need to categorize clauses that are neither conditional nor warranty terms. This was necessary because the benchmark that is used by the courts in determination of the nature of contract terms is not all that clear, and tends to shift as well. So in order to address the weakness of the method used to categorize contractual terms, the court adopted a different approach that sought to determine the extent of the negative impact in an agreement towards the aggrieved party. Because of this flexibility that innominate terms have, they can encompass all contractual terms except warranties and conditions. This implies that their significance and remedy can consequently vary. So in determining the significance and remedy for breach of innominate terms, a court will view the impact that such violation of terms has towards the implementation of the whole contract, as well as towards the aggrieved party.

Price variation clause

A price variation clause is a term within a contract that allows a party, usually the seller to alter the selling price of goods or services prospectively based on certain circumstances. Because of their nature, price variation clauses are only crafted for particular agreements which often involve buying and selling of goods or services. However, there is a limit that a party to an agreement is allowed to vary price of goods or services, and circumstances under which such variation can be interpreted to be fair.

The Unfair Contract Terms Guideline states that “terms may be unfair if they have the object or effect of: providing for the price of goods to be determined at the time of delivery or allowing a seller of goods or supplier of services to increase their price without in both cases giving the consumer the corresponding right to cancel the contract” (Unfair contract terms, 2008).

So in principle, significance and remedy against breach of price variation clause in a contract is dependent on the extent of such a price range, and the view of a court’s interpretation on the same.

Force Majeure clause

This is a clause in a contract that seeks to exempt parties to a contract from fulfilling their obligations under special circumstances, and at least, for a given duration of time. The Force Majeure typically addresses issues that might interfere with implementation of the contract such as that caused by political instability and natural disasters usually referred to as acts of God. Normally, for an issue to qualify as a force majeure factor, three conditions of unpredictability, externality and irresistibility must be shown to have existed (Meiners et al, 2006). In theory, force Majeure clause does not provide for cancellation of the contract by a party, but rather tends to suspend the implementation of the contract by a party for certain duration of time during when such implementation of a contract is deemed to be impossible.

Force majeure is therefore an essential contract component in view of the range of possible happenings that might interfere with the implementation of contractual obligations and most contracts have this clause. Since issues qualifying to be force majeure are fairly straight forward and can easily be determined, this clause is rarely abused. However, the remedy when it is breached is suspension of the contract for the given duration, and rarely if ever do contract cancellation occur.

Scenario 1

Issue

There are two issues at the central of this case scenario that the court must determine. First, is whether Saer under the circumstances is entitled to damages paid by Omar in the aftermath of the accident that he suffered in the vicinity of Omar’s property? The second issue is determination of whether Hassan and Reem too are entitled to any psychiatrist damages due to their disturbed mental state after witnessing the same accident at the time.

Relevant laws

The relevant applicable laws as we shall see shortly in the discussion part of this case scenario is tort law, vicarious liability and Defective Premises Act (1972)

Discussion

Tort law holds all property owners liable for any injuries suffered by persons when at the vicinity of their property regardless of whether such persons were trespassers or not, as long as presence of such danger that might injure persons (trespassers or otherwise) was foreseeable (BPP Learing Media, 2010). So to determine if Omar who in this case is the property owner should be held accountable for injuries suffered by Saer in this case, the court will look at three key issues so as to determine the extent of Omar’s knowledge regarding such danger lurking in his property. One is whether Omar was aware of any risks within his premises, or if he should have reasonably known of such danger. Based on this case scenario this would seem so since Omar had hired Ahmed to undertake some work which could have been risky to passersby; and the fact that Ahmed was ‘inexperienced’ made such danger even more apparent.

Secondly, the court will look at whether Omar had knowledge of possible trespassers across his property, or if he was aware that just ordinary visitors might come by. Again in this case too, that would be found to be the case since its clear Omar was aware that people in fact trespassed through his plot on their way to other places which is what prompted him to display a ‘no trespassing notice’. Finally, the court will ask if “the risk is one against which he may reasonably be expected to offer that person some protection” (BPP Learing Media, 2010). Regarding this last issue, the answer would be yes considering that Omar must have anticipated that forklift works during that time must have presented heightened dangers to trespassers, and even authorized visitors.

Now despite this obvious duty of care which the law imposes on Omar, the law on the other hand offers Omar several avenues through which he could have discharged such liabilities. The law also in general tends to shield a property owner from possible suits emanating from scenarios such as this by stating “no duty of care if ‘visitor’ exceeds limits of permitted entry” (BPP Learing Media, 2010), as is the case since Saer was trespassing at the time. In this case however, what Omar failed to do was to appropriately discharge any duty owed to him by law since he failed in both avenues of doing so. First Omar did not provide warnings that accurately warned people of imminent danger of trespassing due to ongoing forklift works; instead Omar just provides a general warning which states that the property is private. Secondly, Omar does not put in place further protective measures to persons trespassing in the property in light of the imminent danger. Thus, based on the above discussion it is clear that Omar will be found liable and required to pay Saer damages for his injuries. Of course, as the employer, Omar will be liable for the actions of Ahmed who is his employee based on the doctrine of vicarious liability.

This brings us to the second issue in the case of whether Hassan and Reem are entitled to be awarded any damages. First, let us look at the case of Reem. For Reem to claim damages, then it must first be shown that Omar was negligent and owed a duty of care specifically towards her. Now that would not be possible to prove since Reem appears too remote from the defendant to claim duty of care was owed to her. In fact, her presence at the scene of the accident at the exact time was circumstantial and could not have been foreseen. Additionally, there are two other factors that will disqualify Reem from hoping to be paid nervous shock damages; (1) is because of the fact that the victim in this case, Saer was neither a close relative nor friend to Reem. (2) Reem did not in any way assist in rescuing Saer, but only watched from a distance without interfering. This is consistent in the judgment entered in Alcock v Chief Constable of South Yorkshire Police [1992] where the court declined to award damages because of the remoteness of the plaintiff from the victim (BPP Learing Media, 2010).

But while Hassan might not have been a close relative to Saer, he nevertheless participated in his rescue, and this is recognized by law as one of the grounds for claiming damages which is also consistent with court rulings in the cases of Chadwick v British Railways Board 1967 since in such a case Hassan might be considered as a primary victim by the law. In the case of Chadwick v British Railways Board 1967 for instance, the court ruled inter alia that “it was reasonably foreseeable in the event of such an accident as had occurred that someone other than defendants’ servants might try to rescue passengers and might suffer injury in the process; accordingly defendants owed a duty of care towards Mr Chadwick” (BPP Learing Media, 2010). So in conclusion it appears that only Hassan might be able to win damages for psychiatric care under the circumstances.

Scenario 2

Issue

There are two issues in this case that need to be determined. First, is whether Noura is entitled to any form of damages from the employer, Awesome Autos under the circumstances? Secondly, is determination of whether Noura’s husband and their family friend Abeer are entitled to damages due to their psychiatry conditions caused by the incident that they witnessed when they went to rescue Noura.

Relevant laws

Law of tort, employer common law duties and principle of contributory negligence

Discussion

Foremost, Noura and her husband have very good chance of obtaining damages from Awesome Autos if they were to claim, this is why. For the case of Noura, it is clear that Awesome Autos, the employer owed a duty of care to her which was clearly breached in this instance by employer who failed to provide safe working conditions in what appears to have been as a result of negligence. Given that the employer could have foreseen this danger of Noura working alone in the garage but did nothing to mitigate it shows negligence on the part of Awesome Autos. In this case Noura will have to prove that Awesome Autos was negligent by demonstrating the existence of the three conditions upon which tort of negligence is determined.

But under the law of tort, there is an aspect of contributory negligence which can be inferred from the case scenario since Noura was aware that the machine should not be lifted by one person, yet she still went ahead to lift it in clear disregard of safety precautions. So this action by Noura, will give the employer a probable ground of defense according to Law Reform (Contributory Negligent) Act (1945), and chances are that Noura’s damages will be proportionally reduced in tandem with her perceived contribution to the resulting accident.

Indeed, contributory negligence as defined in the case of Froom v. Butcher (1976) fits this description “a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonably prudent man” (Official documents 1993). Similarly, as previously discussed in scenario 1 above, Peter who is Noura’s husband has two clear grounds that he can use to claim damages due to the resulting nervous shock that he suffers in the process. (1) As demonstrated in the ruling of the case McLoughlin v O’Brien 1982, a nervous shock victim might claim damages where the relationship between victim and him/her is so close (BPP Learning Media, 2010). This is clearly the case in this scenario since Noura is wife to Peter and would therefore be considered as a primary victim. (2) Even on the second ground as a rescuer, Peter can still win damages since consistent with the judgment made on Chadwick v British Railways Board 1967, a person might claim damages if such a person was involved in rescuing victims of an accident (BPP Learning Media, 2010).

For the same reason Abeer too stands a good chance of being awarded damages due to his psychiatric condition, on at least one ground. In tort law Abeer is considered by the court as a primary victim since he was in this scenario discharging his duty as a rescue fireman, in such a case the law considers that such an outcome is “perfectly foreseeable” (BPP Learning Media, 2010). Secondly, as a close family friend to the family, the court might even be more inclined to award this damage since that would be evidence of even more close relationship with the victim in this scenario. Thus, consistent with the court ruling in the case of Chadwick v. British Railways Board [1967] which stated inter alia that “it was reasonably foreseeable in the event of such an accident as had occurred that someone other than defendants’ servants might try to rescue passengers and might suffer injury in the process”, and then again that “injury by shock to a rescuer, physically unhurt, was reasonably foreseeable” (BPP Learning Media, 2010).

So in conclusion, there is good chance that the court will award damages payable by Awesome Autos to all of the subjects discussed above, albeit perhaps of different amounts.

Scenario 3

Issue

The issues to be determined in this case scenario is whether Majid and Mary can claim any damages under the circumstances, the extent of such damages if any and finally determine the party who should be held accountable in that case given that more than one party is involved in this case

Relevant laws

Consumer Protection Act, 1987 and Misrepresentation Act, 1967.

Discussion

There are several issues to consider in this case scenario, let us review each at a time. First, let us consider possible claims that Mary might successfully lodge against the shop attendant. In this case we see the shop assistant misinforming Mary on why the electric drill is being sold at such a cheaper price for purposes of influencing her decision. We know this to have been a deliberate misinformation because of two reasons; (1) because 4 weeks later the company is still operational and is in fact recalling the same model, albeit for different reasons. So for this reason we surmise that it is unlikely that such a company was really about to get bankrupt, since no such company will bother to recall faulty electric drills anyway. (2) The second reason is because of the way that both products sold by the shop attendant malfunctioned shortly after they were bought by Mary, this for some reasons will make any reasonable person doubt the authenticity and quality of both products, especially in light of the “cheap” price that the shop attendant was selling these products. The result of the shop attendant claims was that Mary made her decisions based on these facts and buys the two items.

It is based on these reasons that the conduct of the shop attendant can be interpreted as ‘negligent misstatement’ under tort law. To claim damages on this premise of negligent misstatement, Mary will have to prove two things; that the shop attendant was “(1) acting in a professional or expert capacity making it likely others will rely on what said, (2) must have foreseen it is likely to be relied on by the other person (BPP Learning Media, 2010). These two conditions are clearly seen in this case scenario and is consistent with the judgment entered in the case of Esso Petroleum Co Ltd v Mardon [1976]; in this case the court held that “the divide between a statement of opinion and fact becomes more factual if one holds himself out as having expert knowledge” (BPP Learning Media, 2010). So either way it appears that Mary is in a very strong position to claim for damages from the shop establishment which is provided by law considering the strength of the case. Most often, the court will be inclined to reverse the transaction process instead of awarding damages where events of such transactions have not been overtaken. This now brings us to the claims that Majid might be entitled under the same circumstances.

Based on the case scenario, it appears that Majid might be entitled to several types of damages, at least from the electric drill manufacturer. However, we need to establish the extent of claims that he might be able to successfully obtain. There are two types of damages that Majid can claim under the Consumer Protection Act, 1987; personal injury and damage to property (BPP Learning Media, 2010). Besides these two, no other form of damages might be claimed under the circumstances including the loss of the product itself, which means in this case that Majid cannot claim for the actual loss of the electric drill itself. But there are several issues to consider, first Majid cannot claim damages under the reasons for which the manufacturer are recalling the product for the obvious reason that the manufacturer is allowed under the law to claim for ‘limited state of art technology’ that could have existed at the time that prevented the discovery of the hazard posed by the electric drill casing until then. So for Majid to claim damages from the manufacturer then he should use other grounds to do so.

Under Consumer Protection Act, 1987, Majid might be able to claim damages due to breach of strict liability by the manufacturer through supply of defect product (BPP Learning Media, 2010). A product is described as defective under this Act when “the safety of the product is not such as persons generally are entitled to expect” among other considerations (BPP Learning Media, 2010). Additionally, it must be shown that the product was in fact, purchased and intended for personal use as was the case in this scenario. Since the type of liability here is strict, there is no need for Majid to go to extra lengths to demonstrate existence of negligence by the manufacturer. Additionally, the time limit within which damage claims can be made is still valid as far as this case scenario is concerned, so Majid cannot be disqualified on this condition either.

However, of much importance is for Majid to demonstrate that the explosion of the electric drill was probably caused by defects in manufacturing as opposed to the casing which the manufacturer is claiming to possibly pose certain hazard. Notable to mention is that there are various factors such as whether Majid read and complied with the operational manual of the electric drill before proceeding to use it that will be considered by a court of law, or if the explosion was caused by irregular power voltage among other issues during the trial. Unfortunately, these issues have not been mentioned in the case scenario. All in all, there is a fair chance that Majid will be able to obtain damages from the manufacture for his damaged computer and wall as long as the total costs arising from this two damages amounts to at least 275 UK pounds: as well as damages resulting from his injuries which will be determined separately. So in conclusion, both Mary and Majid have good chance of obtaining damages from the shop establishment and the manufacturer respectively.

Scenario 4

Issue

There are two issues that will require determination in this case scenario. First is the extent and nature of damages that Wood and his son John can claim from the bus owner, if indeed there are any damages to claim. Secondly, there is need to establish if the doctor’s actions in the aftermath of the accident where John’s treatment is delayed amounts to negligence upon which damage claims can also be based. Finally, this discussion will look at whether Mrs. Wood can claim nervous shock damages because of the depression suffered after knowing the permanent condition of her husband and son.

Relevant laws

Laws of negligence, doctrine of res ipsa loquitur, vicarious liability and liabilities for nervous shock

Discussion

Negligence is defined in law as “conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm” (BPP Learning Media, 2010). Because the circumstances of the accident in this case scenario is said to be caused by negligence on the part of the bus driver, then the issue of whether negligence was the cause of the accident is not a question. Additionally, breach of duty of care is an important element that must be established before any negligence claim can be instituted by both John and Wood. But since the question here is not whether the accident was caused by negligence, but rather if damages due to injuries suffered should be claimed, then it is not important to dwell on whether negligence was the cause. Consequently, chances of both Wood and John being able to collect damage claims is almost certain since tort of negligence states that “causing loss by a failure to take reasonable care when there is a duty to do so” must be rectified by payment of damages (BPP Learning Media, 2010). In fact, the remedy in this case is almost always award of damages.

Now let us look at the second issue of whether John is entitled to another form of damage, resulting from probable negligence that appears to have taken place at the hospital. First, let us review the facts of this second hypothetical scenario. Standard procedure in a hospital setting ideally would have required that the doctors at the King’s Hospital where Wood and John were immediately taken after the accident undertake two obvious actions, unless there are clear reasons not to. (1) To institute immediate treatment for accident victims, which is the reason why all accident victims are usually taken to emergency section of the hospital. (2) To carry out X-ray on possible areas that the doctor has good reasons to think might have been fractured, especially since this was a case of accident. Based on the case scenario, none of these two standard procedures appears to have been done by the hospital when John was taken there for treatment. As a result, John’s fate is sealed by the fact that his disability is a condition that he has not even the slightest chance of recovering from, only because his treatment of the injuries suffered was overseen in what appears to have been medical negligent. And since there are no special circumstances such as power failure or excessive patient influx at the time that John was booked in at the hospital that could have prevented this, then this deviation from the expected procedure by the hospital staff can only be interpreted as negligence.

As such, from the laws perspective the doctrine of res ipsa loquitur is the best shot that John has in claiming damages from the hospital for two reasons. (1) First because the facts in this case speaks for themselves as stated above, which is all that John needs to demonstrate to the court so as to compel the court to award him damages. (2) Secondly, because consistent with the principal of res ipsa loquitur, John case also clearly can be shown that the “causation”, which is John’s certain disability would not have been so has the hospital staff not been so negligent. And two that there existed “actual legally recognizable harm suffered by the plaintiff who did nothing wrong” such as by contributing towards it (BPP Learning Media, 2010). All these conditions which are prerequisite in proving res ipsa loquitur are present in John’s case, and damages would therefore most likely be awarded by the court payable by King’s Hospital. So in theory, John is in a position to claim two forms of damages; from the hospital due to his disability, and from the bus owner due to general injuries suffered during the accident.

The second issue has to do with whether Mr. Wood, who was also involved in the accident, can claim damages from the hospital due to the delayed treatment. Since, the delay in treatment has not been singled out as to have contributed to his permanent injuries; it is not prudent for Mr. Wood to claim damages from the hospital. This is because, even if the delay in treatment was to be found to have been negligent, no actual damage will be found to have occurred specifically as a result, except perhaps the physical pain suffered by him as he awaited treatment. So I will not advise Mr. Wood to lodge claims against the hospital; instead, claims of damages from the bus owner should be made.

Finally, let us review the third issue in this case scenario which is whether Mrs. Woods should claim damages arising from her nervous shock condition evident in her depression. Consistent with rulings made in the case of McLoughlin v O’Brien 1982 and elsewhere, a person described as a primary victim can claim damages arising from nervous shock even if that person did not witness the actual accident, but rather comes to learn of it later (the aftermath) (BPP Learning Media, 2010). In this case, Mrs. Wood qualifies as a primary victim, and will consequently get damages either payable by the bus owner or the hospital, or by both parties prorated in both instances.

References

BPP Learning Media. 2010. Business Essentials – Finance: Auditing and Financial Systems and Taxation. BPP Publishing. London.

Contract law: Chapter 2 Offer and acceptance 2009, Web.

Gibson, A., Rigby, S. and Tamsitt, G., 2005. Commercial Law: In Principle. 3rd edition, Thomson Law Book Co. Sydney.

Meiners, R., Ringleb, A., & Edwards, F. 2006. The Legal Environment of Business, 9th ed. Thomson. Ohio.

Official documents: Contributory negligence as a defense in contract law 1993, Web.

Turner, C. 2008. Australian Commercial Law, 27th edn. Thomson Reuters. Victoria.

Unfair contract terms: Unfair contract terms guidance 2008, Web.