Business Law

Pracash and Kali are angry about the Membership fee

Pracash and Kali became members of UMH fitness centre on purchasing membership under special offer. They completed and submitted the application form by post before the due date but were not given membership under the special offer due to delays in postal service; UMHH received their post after the due period.

This raised the issue whether Pracash and Kali are entitled to the special offer. Firstly, we need to discuss if there was an offer made by UMH fitness centre. An offer is a proposition put by one person to another that is capable of immediate acceptance. It must be clearly communicated to the offeree (Taylor v. Laird). The case clearly shows that UMH fitness centre had posted an advertisement in the newspaper, and the General rule says that advertisements are ‘Invitations to Treat’ for example the case of ‘Partridge v. Crittenden’ – where an advertisement of ‘wild birds for sale’ was not held to be an offer capable of acceptance. As well as there are other cases that could also give authority to this rule (Gibson v. Manchester city) and (Fisher v. Bell). A great contrast can also be drawn with the American case of (Lefkowitz v Great Minneapolis Surplus Stores) here, an advertisement by ‘Great Minneapolis Surplus Stores’ was given in the newspaper that three milk coats were available at a special price on ‘first come first served basis’. However, the case of (Carlill v Carbolic Smoke Ball) was considered a unilateral offer, where the advertisement was quite certain in its term and was also held to be communicated to all the people who read it and was also capable of immediate acceptance by performing the stipulated conduct.

[14:15:31] says: Hitherto, there can be three possibilities to the advertisement posted by the UMH fitness centre – an Offer, an Invitation to treat or a Unilateral offer. So before going any further than this we have to first figure out whether there was an acceptance by Pracash and Kali. In the case it is given that Pracash and Kali completed and submitted the form by post on 12th June and the advertisement article clearly mentioned the last date that was, 17 June. The General Rule for acceptance is that ‘an offer should always be communicated to the offeror’. There are many more cases that could be used in favour of the General Rule, like of, (Felthouse v Bindley); (Brogden v Metropolitan Railway Co) and others. If we base the argument of the (Carlill v Carbolic Smoke Ball(1893) Q.B 256 (1) in which a lady was awarded 100 pounds as advertised, as she fell sick from the smoke balls, then we can say Pracash and Kali are fully entitled to the special offer because we accept it under the general postal rule. If Pracash and Kali are prove that the advertisement was not an invitation to treat but an offer, then they fully entitled to the special offer of 50% discount on their membership fee as they had accepted it on 12th of June as they posted.

[14:15:46] says: however, if UMH fitness centre can prove that an offer was never made and the article that was advertised was merely an Invitation to treat or a unilateral offer, then Pracash and Kali are not entitled to the special offer since Postal Rule does not apply to unilateral offer or invitation to treat. As well as UMH fitness centre can also say that the offer was never communicated until the last date i.e. 17th June. As stated in (Ramsgate Victoria Hotel Co. Ltd v Montefiore) – an ‘Offer’ will automatically lapse at the end of the fixed period.

In conclusion, I would say that the article advertised in the newspaper was just an invitation to treat as stated in the cases of (Partridge v .Crittenden; Fisher v Bell; Gibson v Manchester City) so the Postal Rule cannot be a taken under consideration. The letter had reached UMH fitness centre two days later than the last date and moreover, since Pracash and Kali knew that only five days were left, they should have posted the letter using the first class post to avoid any delays.

Pracash wants compensation for his back injury;

In this case Pracash injured his back due to the breakdown of the machine in the gym of Mill House Hotel as he was doing his regular exercise and was also left unattended since he was a frequent and experienced member. The machinery of the gym was of a high standard and the company ‘Pro-Fit had given a warranty of 6 months; they also mentioned that no liability of the equipment will be taken after the warranty period.  When the incident happened, it had already been two months more than the warranty period. So certainly neither Mill House fitness centre nor Pracash can accuse Pro-fit under any circumstance.

Now, the issue remains that whether it is a fault of the Uxbridge Mill House fitness centre or was it negligence on Pracash’s side as well as whether Pracash is eligible for the compensation for his back injury. It is clearly visible in the case given that Pracash’s injury was caused because of the faulty equipment, so Pracash is likely to sue Uxbridge Mill House fitness centre, under ‘Duty of Care’ that they did not carry out their services with reasonable care or he can sue Mr. Dean, the duty manager, under tort as he is acting in the course of his employment duties and not on a frolic on his own.

To behave negligently is to be careless which means the damages caused by negligent conduct is generally actionable irrespective of the kind of activity out of which the damage arose.

In order to win the case in tort Pracash must prove fault.

According to the law of tort subsection the tort of negligence is said to consist of three essential elements. Firstly, a ‘duty of care’ that Uxbridge Mill House fitness centre failed to comply by leaving them unattended. Secondly, a ‘breach of that duty’ by not extending the warranty of their equipment and lastly, the damage to the plaintiff caused by that breach of duty which in this case, the plaintiff, Pracash suffered back injury.

In light of a past case of ‘Davis Contracters v Fareham UDC 1976 where the Lord Redcliffe gave judgement that a reasonable duty of care is must. As well as there was a breach under ‘Health and Safety Act of 1974’ that says ‘all the businesses are supposed to take safety minimum precautions’.

Another issue which arises is that the application form stated right at the bottom in small print, “Whilst the equipment is maintained to a high standard and guidance and supervision are provided, the Uxbridge Mill House Hotel can accept no liability for injury, or for loss of, or damage to, any property, that occurs during the use of the facilities.” There are number of statutes which support the case in Pracash’s favour such as Unfair Contract Terms Act 1977. According to the Unfair Contract Term Act 1977 ‘a person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence’.

Another section of unfair contract terms of act 1977 section 5 subsection 1 clause A argues that a manufacturers guarantees where a loss or damage arises from the goods proving defective while in consumers are using it. These statutes clearly support the argument in favour of Pracash because section 5 clause A fits in the situation when Uxbridge Mill House Hotel Fitness Centre kept the machinery for 8 months while its guarantee expired after 6 months.UMH fitness centre is completely liable for Pracash’s injury. To explain more in depth we can use the case of (White v John Warwick 1953) which stated that company should not be liable to the consumer under any circumstances but when the judgement of this case was passed it went in the favour of the claimant as it was argued that the cause ‘Contractual Duty’ is owed to the company but not in the case of common law or in the Law of Tort. As well as the case of (Chapelton V Barry 1940) supports claimants argument where a rented chair on the beach broke while it was in use. The rented company backed out by saying that they are not liable as it was given on their notice. In the end, the court judgement was in favour of Chapelton.  Another case (Haseltine v. Dall 1941) was also in the favour of the plaintiff as a company owes a minimum level of duty towards its own product.

In conclusion, keeping all the statutes and the past references in mind, Pracash can sue UMH fitness centre and is liable to get compensation for the cost of the treatment of his back and the loss of his earnings.

Footnotes

• Chapelton V Barry UDC (1940)
• White V john Warwick(1953) 2 ALL E.R. 1021; 1 W.L.R. 1285, C.A.
• Haseldine V Daw(1941) 1ALL E.R. 156; 2 K.B. 343, C.A.        
• Herschtal V Stewart & Ardern(1939) 4 ALL E.R. 123; (1940) 1 K.B. 155, Tucker J.
• Steer V Durable Rubber Co. (1958) The Times, November 20; C.L.Y. 2250, C.A.
• Holmes V Ashford(1950) 2 ALL E.R. 76; W.N. 269, C.A.
• A.C.Billings V Riden(1957) 3 ALL E.R. 1; (1958) A.C. 240, H.L.

Donogbue V Stevenon (1932) A.C. 562

Dean feels that he has been unfairly dismissed;

In this case, Dean, the duty manager was fired on a short notice; he’s been working with Uxbridge Mill House Fitness centre for two years now. He’s been dismissed for leaving the members in the mini gym unattended.

On his defence Dean claimed that it was a momentary error done by him and he should not be blamed for Pracash’s injury as it happened due to the breakdown of the equipment and even if he would have been there, the results, more or less would have been the same.

Now, since we’ve got the overview of the case, only one question arise, i.e whether Dean was dismissed fairly. Dean argues that he did not breach the contract since Pracash’s injury did not happen because of his negligence.

The UMH fitness centre accuses Dean for breach of contract under common law for leaving the members of the mini gym unattended because Dean was given the staff handbook that clearly mentioned that the mini gym should never be left unattended when they are clients working out. Dean can argue that his dismissal was unfair by taking the past cases of ‘Arcos Ltd v Ronaasen & Pepper v Webb 1969 under consideration and on the other hand there is a case ‘British Broadcasting Corporation v Beckett 1983 where it is said that negligence can lead to dismissal.

In order to support the case of Dean Statutes like SGA 1979, ss 13-15. Any failure to perform or match the contractual terms or conditions is a breach of contract and EAR 1966 Part 9; Section 86; Rights of Employer and Employee to minimum notice. Subsection 1A; a notice should be given at least a week in advance if the employer has been continuously employed for two years or longer but less than 12 years. According to UMH fitness centre the following Statutes apply which are EAR 1966 Part 9; Section 86; Any provisions for shorter notice contract of employment with a person who has been continuously employed for a month or more has an effect subject to subsection 1 & 2; but this section does not prevent either party from waiving his right to notice on any occasion or from accepting a payment in lieu of notice. EAR 1966 Part 9; section 91; subsection 5; says if an employer fails to issue a notice required by section 86, the rights conferred by section 90; this section should be taken into account in assessing his liability for breaching of the contract. Ear 1966 Part 9; section 93; subsection 2A&B; Where an employment tribunal finds a complaint under this section well founded the tribunal may make a declaration as to what it finds the employers reason were for dismissing the employee and Shall make an award that the employer pay to employee sum equal to the amount of two week’s pay. EAR 1966 Part 10; Chapter 1; Section 98; subsection 2B; A dismissal is fair if it relates to the conduct of an employee.

 The dismissal was unfair and he should be reinstated.

Footnotes

CASES

• Arcos LTD V Ronassen
• Pepper V Webb 1969
• Cerberus software LTD V Rowley 2001
• British Broadcasting corporation V beckett 1983
• Gallagher V Dorman Long(1947) 2 ALL E.R 38; 177 L.T 143, C.A
• Hopwood V Rolls Royce(1947) 176 L.T 514, C.A
• General cleaning contractors V Christmas(1952) 2 ALL E.R 1110;(1953) A.C. 180 H.L.
• Pead V Furness Withy(1956) 2 Lloyd’s Rep. 149, slade J.
• Branett V Chelsea & Kensington Hospital Management committee(1968).

Statutes

SGA 1979, ss 13-15 see 6.4.2.4,

EAR 1966 Part IX; Section 86;

EAR 1966 Part IX; section 86; subsection 3;

 EAR 1966 Part IX; section 91; subsection 5;

EAR 1966 Part IX; section 93; subsection 2A&B;

EAR 1966 Part X; Chapter 1; Section 98; subsection 2B;

REFERENCE:

•  See, e.g., Shadwell v. Shadwell (1860) 9 C.B.N.S. 159.
•   (1989) 16 NSWLR 582
•  e.g. P.S. Atiyah, 'Consideration: A Restatement' in Essays on Contract (1986) p.195, Oxford University Press
•   [1947] KB 130
•   [1919] 2 KB 571
•  Merritt v. Merritt [1970] 2 All ER 760; [1970] 1 WLR 1211; CA
•  in Australia it is known as the Sales of Goods Act in most states, and in Victoria the Goods Act 1958
•   [1934] 2 KB 394
•   [1951] 1 KB 805
•   (1906) 4 CLR 379
•   (1953) 2 D.L.R. 817 (B.C.S.C)
•   (1932) 147 LT 503
•   (1968) 118 CLR 445
•   (1967) 111 Sol. J. 831
•  Martin, E [ed] & Law, J [ed], Oxford Dictionary of Law, ed6 (2006, London:OUP).

• Arcos LTD V Ronassen
• Pepper V Webb 1969
• Cerberus software LTD V Rowley 2001
• British Broadcasting corporation V beckett 1983
• Gallagher V Dorman Long(1947) 2 ALL E.R 38; 177 L.T 143, C.A
• Hopwood V Rolls Royce(1947) 176 L.T 514, C.A
• General cleaning contractors V Christmas(1952) 2 ALL E.R 1110;(1953) A.C. 180 H.L.
• Pead V Furness Withy(1956) 2 Lloyd’s Rep. 149, slade J.
• Branett V Chelsea & Kensington Hospital Management committee(1968).
• Statutes
• SGA 1979, ss 13-15 see 6.4.2.4,
• EAR 1966 Part IX; Section 86;
• EAR 1966 Part IX; section 86; subsection 3;
• EAR 1966 Part IX; section 91; subsection 5;
• EAR 1966 Part IX; section 93; subsection 2A&B;
• EAR 1966 Part X; Chapter 1; Section 98; subsection 2B;