Causation
If the breach of duty could be proved, did it lead to the damages? According to the s3 of the Compensation Act 2006, what if Ploymart could provide a better security services, the staffs of supermarket could pay more attention on Emma and gave help, the injury would not occur (Cork v Kirby MacLean). Therefore the negligence of Ploymart did cause the injury. Moreover, because Emma accidentally dropped her handbag and caused the fault, so we cannot presume that whether the fault would occur if she paid attention on buggy. Nonetheless, if Emma braked the buggy in time, the injury would not happen. In this case, the court would apportion the blame between two parties on a fair basis.
Whether the type of injury was reasonably foreseeable
With regard to this case, the injuries also need to be proved which was reasonably foreseeable. Did Ploymart provide a safety shopping environment for customers, in particular disabled people? In fact, a disabled people are more likely to have accidents because of the inconvenience. Hence Ploymart ought to take preventive measures in advance for Emma even in the absence of such an accident happened in the past. Let Emma shopping alone in the buggy would make herself or other customers possibly be reasonably foreseeable injured (Overseas Tankships (UK) Ltd v Morts Dock Engineering Co Ltd). Besides, in such a crowded place Emma should foresee that there might be some danger with a buggy. Moreover, maybe the speed of buggy is not very fast (8 miles per hour) but there was nothing to prove that the injury of Olivia became worse since a pre-existing condition. According to the “eggshell skull” rule, Polymart and Emma still are liable even if the severity of the injury was unreasonable foreseeable (Smith v Leech Brain).
Whether Ploymart or Emma is liable?
As stated previously, Ploymart and Emma owed Olivia duty of care and the duty was breached, which resulted in a reasonably foreseeable injury for Olivia. However, even though the action of Emma was accidental but she did not master driving skills and did not brake. As a result, Emma would be primarily liable for the injury of Olivia and Ploymart shall assume the joint liability. In addition, Emma has to pay the claim by herself since “Invalid carriages do not have to be insured and Emma's carriage wasn't insured”.
Part 2
The relevant law
First of all, the relevant law is the Contract. In this case, the buyer (Tom& Megan) made a payment which could be called the “price” but the subject matter of the contract was a house which is an interest in land. House could not be regarded as goods. (Maclntyre, 2008) The case did not meet the requirements hence we cannot say there was a contract of sale of goods (Sale of Goods Act (SGA) 1979). Nonetheless, there was a contract of sale of land between buyer (Tom& Megan) and seller (James& Alice), and the buyer could be protected by Sale of Land Act 1962.
Moreover, due to the fact that there was a legally binding agreement between James& Alice and estate agent, the agreement is bilateral where there are exchange of promises in the offer and acceptance. Hence there was another contract between James& Alice and estate agent (Unfair Contract Terms Act 1977).
The first arguable issue between sellers and buyers
As mentioned above, there was a contractual relationship because Tom& Megan bought a house from James& Alice though estate agent. Obviously, the sellers provided an offer to sell their house and buyers accepted it. The contract was made because the deal (payment) was done (Maclntyre, 2008).
There are two arguable issues between the sellers and buyers. First, the sellers concealed the fact that there was a murder at this house 20 years ago. Instead, “the standard questionnaire only mentioned some other aspects of house’s history, such as past disputes with neighbours”. However we do not know whether the buyer had asked something like “Have any unpleasant things or disasters happened in this house before?”
The first situation is the buyer did not ask. According to the case of Fletcher v Krell 1872, the seller had no obligation to disclose everything if the buyer did not ask about it. Accordingly, no untrue statement of fact existed in the contract. Under this situation, there was no misrepresentation in this contract. (Maclntyre, 2008)
On the other hand, if the buyer did ask that question, there was an actionable misrepresentation in this contract. Even though the statement was literally true it did not reveal the whole truth therefore made the statement misleading. Obviously, such behaviour could be regarded as an actionable misrepresentation (half-truths) since the statement concealed the fact to induce buyer to enter contract (Maclntyre, 2008). (Nottingham Patent Brick & Tile Co. Ltd. v. Butler 1886). Moreover, we cannot learn that whether or not sellers know the murder so that there are two different situations. If the seller really did not know the fact of murder, a negligent misrepresentation was existed. Firstly, an actionable misrepresentation caused a loss for the buyer. Since the local newspaper reported the murder, the buyer could only sell the house at £20,000 below the market price. Secondly, the seller could not (almost impossible) prove that they did not know the fact of murder (Misrepresentation Act 1967 S 2.1). On the other hand, if the seller knew the fact of murder but did not mention it in standard questionnaire. It is a concealed fraud so that there was a fraudulent misrepresentation in this contract.
The second arguable issue between sellers and buyers
The second arguable issue is about the garden. The garden was described as “beautiful” in the sales brochure, whereas the truth is that the garden “floods from time to time and the water is slow to drain away”. If the seller lived in that house before, they must know that the garden was a far cry from “beautiful” due to the big defect. Therefore this action could be regarded as a misrepresentation. Maybe the scenery of garden was nice but the sales brochure did not disclose the defect. This is a statement misleading to induce the buyer to enter into the contract (half-truths). On the other hand, if the seller did not know the garden had such a problem and just expressed an opinion, which cannot amount to a misrepresentation (Bisset v Wilkinson 1927).
The arguable issue between seller and estate agent
According to the analysis from first part, there was a contract between James& Alice and estate agent. Because of the contract said James& Alice need to pay higher commission rate if they could not pay the invoice within two weeks. The fact is they settled the invoice exceed the contract requirement of a week because of carelessness.
Advise for Tom and Megan
As we have already analysed, the possibility of misrepresentation was existed in the contract. Moreover, the buyer entered into the contract due to the induction of misrepresentation and might lose £20,000 if they sell the house. A finding of misrepresentation could be regarded as breach of contract and allows for a remedy from breaching party. In this case, if the negligent or fraudulent misrepresentation can be proved, Tom& Megan have rights to sue James& Alice to “rescind the contract and claim damages which will be assessed on a tort basis” (Maclntyre, 2008). In addition, Tom& Megan also could ask the court to force James& Alice to bear the maintenance of the garden or pay the cost of repairs.
Advise for James and Alice
As presented in the section 2 (25) of Unfair Contract Terms Act 1977, “Liability for other loss or damage in negligence can be excluded but only where the reasonableness test is satisfied.” In the second case, since James& Alice had not settled the invoice in time because of carelessness, therefore they should comply with the contract requirement to pay more fees. However, there are other advices for James& Alice. In order to minimize loss, they could pay 1.5% of the selling price first and renegotiate with estate agent about the concrete fees (between 1.5% and 3%). As a last resort, they must abide by the contract and pay 3% of selling price to estate agent.
Bibliography
Statutes
Compensation Act 2006 Section 3
Misrepresentation Act 1967 S 2.1
Occupiers’ Liability Act 1957 Section 2, subsection 2
(Sale of Goods Act (SGA) 1979
Sale of Land Act 1962
Unfair Contract Terms Act 1977 section 2 (25)
Cases
Bisset v Wilkinson 1927
Blyth V Birmingham Waterworks Co Ex 1856
British Railways Board v Herrington 1984
Caparo Industries plc v Dickman HL 1990
Cork v Kirby MacLean 1952
Donoghue v Stevenson HL 1932
Fletcher v Krell 1872
Glasgow Corporation V Muir, HL 1943
Nottingham Patent Brick & Tile Co. Ltd. v. Butler 1886
Smith v Leech Brain & Co Ltd HC 1962
The Wagon Mound PC 1961
Books
Bermingham V Tort 8/e London: Sweet and Maxwell, Nutshell series, 2008
Bermingham V Tort 5/e London: Sweet and Maxwell, Nutcases series, 2008
Duxbury R Contract Law 8/e London: Sweet and Maxwell, Nutshell series, 2009
MacIntyre Business Law 4/e London: Pearson, 2008
