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Tort Of Negligence Case Summary

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Question 1 (a): Can Barbara recover damages for personal injury and loss of possessions, ignoring the fact that she has signed the deed?

Issues
The question is whether Barbara (B) can recover damages for her losses and injuries from Aegean Shipping (the company). Before investigating damages recovery, the court would consider whether the company is liable in negligence. To succeed in negligence, the plaintiff must show that there is duty of care, breach of that duty, and damage that is caused by the defendant’s breach. The plaintiff should prove on the balance of probabilities. Further, the court would look at whether the conditions on back of the ticket are representations or terms that could exclude liabilities in damages recovery. …show more content…

The test for the existing duty is the ‘neighbour’ principle that was indicated by Lord Atkin in Donoghue v Stevenson. In Donoghue, a decomposed snail was found inside the bottle, causing Ms. Donogue shock and illness. It was held that the manufacturer was liable in negligence even there was no contract between them. The decision was based on the foresight of a reasonable manufacturer should examine the drinks before these were delivered to public and the injury was foreseeable. Secondly, breach of duty is being considered. Reasonably foreseeable of risk of injury, significant of risk and precautions by the defendant are taken into consideration. Thirdly, factual causation in Strong v Woolworths and remoteness in The Wagon Mound (No.1) needed to be considered in determining the link between the duty’s breach and damage. Finally, Voluntary assumptions of risk and contributory negligence are defenses for defendant.

Objective test
The statements on the back of the ticket can be representations or terms. These depend on the intention and the courts will apply ‘Objective test’ which considered the parties’ intentions and the intent of the statements. In Hopkins v Tanqueray , it was indicated that the statement was an inducement, and not intended to form part of the contract …show more content…

That is, ‘would (B) suffer the damages if the company took a reasonable step to examine the electrical functioning? ’ In this case, the company fails to do so. The situation is similar to Strong v Woolworths where the shop fails to have a reasonable cleaning system, causing the plaintiff’s fall. For remoteness, the court will consider the question. That is, would a reasonable shipping company foresee the personal loss and harm? In this case, the harm and loss is foreseeable and not too remote. Thus, the breach of duty will cause (B)’s harm and loss. Besides, there are no defenses available to the company. Based on the decision in Hopkins v Tanqueray , the conditions printed on the ticket is likely to be representations. In determining term or representation, the court will consider whether the conditions were being made before the contract or the time of sale. In this case, the company’s intention is to exclude liabilities in accident. However, the ticket which included those conditions appeared only after the

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