Discuss about the Business Law for Negligence,Liability and Damages.
A temporary ride, Chair-o-lift was set up by the Mid Show organizers at Paynesville as they did at the previous year’s show. Yiming urged Fatima to join him as he had been on such rides several times before. When they purchased the tickets, the attendant forgot to tell them but he did get both of them to sign the tickets. Yiming and Fatima did not paid attention towards the terms and conditions of the tickets before signing the tickets assuming the information to be as ordinary as in case of any other ordinary tickets. On the central pylon, there was a notice with terms and conditions of travelling on the chair-o-lift; however, it was partly covered by some advertising posters. During getting ready to get off from the chair-o-lift, Yiming’s foot got caught in the strap and he fell about two metres off the platform and got severely injured. Yiming wishes to sue the organizers of the show for his injuries and organizers argue that they are not liable because of exclusion clause at the back side of the ticket and the notice on the central pylon as well.
The issue here is that that whether Yiming can successfully sue the show organizers for the injuries caused to him or not?
Contract law of Australia is applicable in this case. In this context, it has been explained in paragraph 1 of Law Hand Book, that a contract is considered as an agreement between two people with offer and acceptance, intention to form a legally binding agreement, paid, legal ability to enter a contract with a free will, and proper consideration and permission of what is implicated.[1]
It has been explained in the paragraph 3 of ACL that the contract can be considered as illegal and void because of false statements, threat or constraint, excessive influence, or unconscionable dealings.[2]
For the purpose of a contract, an offer made by one party must be accepted by the other party. An offer must be distinguished from just a deal or negotiation. An offer is considered as a promise that is required to be bound in a case the offer is accepted. It has been described in the statutory prohibition category of Contract law in ACCL that an offer can be withdrawn before the order is accepted, for which, the offer must be communicated.[3]
Acceptance of the offer occurs when the party agrees to the offer through statement or act. It has been explained in paragraph 4 of Law Hand Book that acceptance must be explicit and communicated to the offer because it has not been expressly rejected.[4]
As per the Contract law of Australia, it becomes possible to claim compensation for various kinds of injuries received while driving or at work, as a sufferer of crime, or when a person who has the liability of care did careless or dangerous acts and caused the injury and it has been specified in page 169 of Shodhganga also.[5] Negligence should be established because the cause of injury, responsibility, consent, and the conduct of parties, and the predictability of the injury are taken into consideration by the court in such cases as mentioned in Negligence and injury section of Law Hand Book.[6]
Taking into consideration, the points of agreement, express terms are stated to be in writing or speech. In case of written contract, the assumption is that the document must contain all the terms and conditions of the contract as mentioned in 2nd paragraph of Express terms of contract.[7]
Contract law of Australia is applicable in this case because providing a ticket and get it signed by the other party can be considered as entering into a contract. As a contract is considered as an agreement between the two parties with offer and acceptance of each other, it establishes the intention of both the parties to form a legally binding agreement, for which the party entering into the contract has paid the ticket prices, and entered into the contract with a free will, and proper consideration and permission of what has been implicated.
For the purpose of a contract, an offer made by one party must be accepted by the other party and Yiming has entered into the contract with the organizers by showing acceptance by signing the contract. The offer was distinguished as the attendant got the ticket signed by both of them. However, it was negligence on the part of attendant that he forgot to tell them that the conditions of using the chair-o-lift were printed on the ticket. Thus, it can be analysed that there was lack of effective communication between the two parties, particularly from the side of attendant.
Acceptance of the offer occurs when the party agrees to the offer through statement or act and it is well established that Yiming and Fatima signed the tickets, which exhibits their total consent to agree to the terms and conditions of the contract. In order to convert the agreement into contractual form, they have paid an appropriate amount of charges for purchasing the tickets, which establishes their consent to the contract.
Acceptance must be explicit and communicated to the offer but in this case, both of them took the information on the ticket negligently and assumed it simply as their entry tickets.
As per the Contract law of Australia, Yiming can claim compensation for the injuries he received as a sufferer, or when an attendant who has the liability of care acted careless which became the reason of injury. However, to sue a company considering their negligence is required to be established as the cause of injury, liability, consent, and the conduct of parties, and the predictability of the injury are taken into consideration by the court in such cases as mentioned in 1st paragraph of Negligence section in Law Book.[8]
If the points of contract are taken into consideration, express terms are stated to be in writing or speech, which was clearly stated by the organizing party in the printed form in the ticket as mentioned in 3rd paragraph on page 5 of the report.[9] In addition to it, the ticket contains all the terms and conditions along with the exclusion clause at the back side of the ticket. It establishes their seriousness towards the contract and their legal binding with the procedures as mentioned in 6th paragraph on page 13 of the report.[10]
Tentative Conclusion
After analysing the rules in Australia and their applicability to the case, it can be concluded that the acts done by both the parties are negligent. The organizers have acted negligently as their attendant did not explained the rules to Yiming and Fatima before getting the ticket signed, in order to keep the communication effective to enter into the contract. However, he got the tickets signed by both of them without telling them the conditions. Yiming and Fatima are also at fault because they have signed the ticket without examining it inside out assuming that it was simply an entry ticket. It becomes their responsibility to examine the document whatever it is carefully, before signing it for a purpose. Above all, they have seen the notice in the central pylon but, it was faded and partially covered by some advertisements. The organizers claimed that there was an exclusion clause at the back of the ticket but, it was not informed to the injured party and the notice on the central pylon contained the same exclusion clause, which was faded and partially covered. It shows greater degree of negligence on the part of organizers and their liability towards the people who might suffer severe injuries just like Yiming due to their acts.
Therefore, Yiming can sue the show organizers but, he will also be considered as negligent because of the lack of reasonable conduct before entering into the contract.
Simpsons Solicitors. (2000). The Principles of Contract. Simpsons Solicitors.
Australian Contract Law. (2016). Australian Contract and Consumer Law. Retrieved September 19, 2017, from https://www.australiancontractlaw.com/
Clarke, J. (2013). Terms of a contract. Retrieved September 19, 2017, from https://www.australiancontractlaw.com/law/scope-terms.html
Ellinghaus, M. P. (1989). An Australian Contract Law.
Shodhganga. (2012). Award of Compensation to the Victims of Motor Accident in India: Judicial Trends. Retrieved from https://shodhganga.inflibnet.ac.in: https://shodhganga.inflibnet.ac.in/bitstream/10603/7253/12/12_chapter%204.pdf
Law Hand book. (2016). Negligence, liability and damages. Retrieved September 19, 2017, from https://www.lawhandbook.org.au/2016_10_01_01_negligence_liability_and_damages
Law Handbook. (2016). Elements of a contract. Retrieved September 19, 2017, from https://www.lawhandbook.org.au/07_01_02_elements_of_a_contract/
Law Handbook. (2017). Negligence and injury. Retrieved September 19, 2017, from https://www.lawhandbook.org.au/2017_10_01_00_negligence_and_injury
Legal Services Commission. (2017). Contracts. Retrieved September 19, 2017, from https://www.lawhandbook.sa.gov.au/ch10s02.php
Motto, M., & Schuck, R. (2012). Australian Contract Law. Consult Australia.
Radan, P., Gooley, J., & Vickovich, I. (2010). Principles of Australian Contract Law: Cases and Materials. LexisNexis Butterworths.
The Law Society of NSW Young Lawyers. (2012). Australian Government Review of Australian.
Utz, C. (2015). Australian Contract Law. Retrieved September 19, 2017, from https://www.acc.com/legalresources/quickcounsel/australian-contract-law.cfm
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