In Director at BIMsoft and asked him to

In the
scenario at hand, Will and Sarah have to be advised. Will needs to be advised about
his potential legal position, i.e whether or not he concluded a contract with
BIMsoft and/or AutoBIM, whereas Sarah needs advice about her potential legal
claims.

Will faces two
main areas of liability that would be analysed, Will’s liability to BIMsoft and
to AutoBIM. On the other hand, BIMsoft’s liability to Sarah needs to be
addressed separately.

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The analysis
requires addressing relevant principles of contract law, mainly offer and
acceptance, revocation of an offer, and relevant principles of tort law.

In the beginning, Will, the
project manager of NewDay Construction Limited hereafter (ND) approached Sean,
the Sales Director at BIMsoft and asked him to quote a price for the
installation of BIMsoft’s ‘state-of-the-art’ BIM Generation and Management
software .So, Will made an ‘invitatio ad offerendum’, viz., an invitation to
treat rather than an offer. Professor Andrew Burrows defined an invitation to
treat as i”…an
expression of willingness to negotiate. A person making an invitation to treat
does not intend to be bound as soon as it is accepted by the person to whom the
statement is addressed.” At this stage, Will’s request cannot form a contract;iiit
was merely an invitation for BIMsoft to make an offer.

Sean replied to the
invitation to treat by making an offer, he offered a lump sum price of 10,500
for the installation, including appropriate staff training. The question to be
addressed is whether the offer made by Sean legally binds ND and whether the
parties entered into a contract. As indicated above Will’s request to quote a
price was not an offer. Willes, J. held that the absence of any specific
wording such as “and we undertake to sell to the highest bidder”
rebutted any presumption that the Defendants had intended to be bound by a
contract.iiiThus,
in this stage, the offer was not conclusive as such; ND acceptance is needed. Unquestionably, as a general
proposition, when an offer is made, it is necessary in order to make a binding
contract, not only that it should be accepted, but that the acceptance should
be notified.iv In
this earlier stage there is no acceptance, let alone a communication. Mere
silence does not amount to acceptance. vTherefore,
no contract was concluded.

Subsequently, on the same
day, Will received an advert by email from AutoBIM Ltd offering their cutting
edge BIM software at a price guaranteed not to exceed _9,000. Will immediately
placed an order by telephone. Having a discussion afterwards with one of the
technical staff of AutoBIM, the cost of installation turned out to be higher
than it was advertised. At which point, Will withdrew his order. The issue is
to establish whether a contract is concluded between ND and AutoBIM.

The communication of the
advert by e-mail does not constitute an issue as a contract can be agreed to in
the form of e-mail., but this won’t be elaborated upon. However, it is arguable
to consider whether the advert received amounts to an offer.

Lord Parker CJ said:vi
“I think when one is dealing with advertisements and circulars, unless they
indeed come from manufacturers, there is business sense in their being
construed as invitations to treat and not offers for sale.”.

Furthermore, the general
rule is that it must be reasonable under the circumstances for the recipient to
believe that the communication is an offer. The communication should be
definite, i.e. spells out,as a minimum, who are the parties, what is the
subject matter as quantity and quality, what is the price and what is the
timeframe. In the current communication, the price is not clear as it only
specifies the upper threshold. The quantity and quality lack precise
definition. The recipient (Will) cannot understand the breakdown of the price
and whether the said price includes installation, staff training, maintenance and
on how many computers can be installed. The communication is less than an offer
and tantamount to a mere invitation to treat. On top of that, the advert states
that AutoBIM ‘can offer’ software. This expression cannot be regarded as an
offer to sell, capable of acceptance, so as to constitute a contract.vii
If Will had not placed an order (or had thought before placing the order), the
matter would have been straight forward; no legal binding is established. However,
the placement of the order by Will through a telephone communication is likely
to be considered as a communicated acceptance.viii
To amount to an effective acceptance, the acceptance is needed to be
communicated to the offeree.ix
In the case in study, the ‘postal rule’xdoes
not apply as the communication of acceptance, in this case, is considered as
instantaneous communication.xi
Seemingly, ED is bound to AutoBIM and the contract is concluded.
Notwithstanding the apparently legal binding, Will, after having contact with
AutoBIM technical staff, withdrew his order. Three scenarios could happen.
Firstly, the court could take AutoBIM´s communication as an offer (unlikely to
happen), and as in the case of instantaneous acceptance, retracting is not possible
then, and ED would  be liable to AutoBIM.
The latter is entitled to be compensated for the foreseeable losses that they
are not too remote, pursuant the remoteness of damage rule.xiiSecondly,
the court would take AutoBIM´s communication as an offer (unlikely to happen).
The acceptance was communicated for a price not exceeding 9,000. Later the
price becomes more than 12,000; higher than the initial offer which ED acted
upon.. Therefore, the acceptance does not match the offer anymore; consequently
there is not contract at all.xiii
Thirdly, likely the court could consider that the communication made by AutoBIM
does not tantamount to an offer; it is an invitation to treat (as discussed
above). Thus the offeror shifts from AutoBIM to ED and the former becomes the
offeree. Will withdrew the offer before it was accepted. To be effective the
revocation has to be received by the offeree.xiv
That what Will did.

The day after, Will communicated to
BIMSoft his acceptance of the offer made by Sean. In his offer, Sean placed a
time limit; he stated that the price could be held only for a week. An offeror
can place a time limit on his offer and prevent the offeree from accepting
after that time, the offer lapses after that time.xv
 Will’s purported communication conformed
to the timeframe of the offer as it was made the day after. BIMSoft did not
prescribe any mode of communicationxvi
 this gave the opportunity to Will to
communicate his acceptance in any form. Will telephoned BIMSoft and left a
message on the answering machine. In cases of instantaneous communication, the
contract is only complete when the acceptance is received by the offeror;
receipt rule.xvii
Therefore, it is of paramount importance to verify whether the communication reached
the offeror (Sean). . Denning LJ in Entores case clarified the issue of the
acceptance, he said “…that if the line went dead when the purported acceptance
was sent there would be no contract because the sender would know that the
communication would be not successful…”.xviii
However, in the case of Will the line did no go dead and likely the offeror
received the acceptance.

At the same time, Will
asked whether the cost comprised training for further staff to be contracted
within six months from the date the contract came into force. The issue is
whether Will’s question amounts to counter-offer or whether it is tantamount to
a simple request for further information. As a general rule, an acceptance has
to be a mirror image of the offer to reflect the ‘consensus ad idem’ of the parties.
A counter-offer or as it is sometimes called a qualified acceptance destroys
the original offer and replaces it. In the case of Hyde v Wrenchxix,
Lord Langdale ruled that any counter-offer cancels the original offer, therefore,
there exists no obligation of any sort between the parties. An inquiry for
information, by contrast, does not intend to reject an offer ready for
acceptance. In Stevenson, Jaques & Co. v McLeanxx,
it was held that the complainant was only inquiring for more information about
whether the terms of the offer could be changed; there was no specific wording
to indicate that it was a counter offer or rejection. This was in contrast to
Hyde v Wrench. This meant that the offer made by the defendant was still valid
and the second telegram by the complainant formed a binding contract. On one
hand, Will’s request could be understood as an inquiry for clarification, as
the offer covers appropriate staff training but without further details. In
this case the inquiry does not imply a counter-offer, thus the offer is still
open for acceptance. On the other hand, Will’s inquiry could be considered a
counter-offer as it changed the quantity of the offer. In fact, Will sought to
include on-site training for new staff. In this case, the inquiry killed off
the offer immediately. Consequently, there was no contract. “The severity of
this approach depends on how the courts distinguish counter-offers and inquiries…
Drawing the line between an inquiry which implies a counter-offer and one which
does not is a difficult job.”xxi
Likely courts would consider that Will’s request had not amounted to a
counter-offer. 

Will was uncertain about
his action; he communicated his decision to cancel his order, in other words he
wanted to withdraw his acceptance. As general rule, an acceptance delivered by
instantaneous communication is binding when it is received. As mentioned
earlier, BIMSoflt likely received the communication, therefore it is binding.
Therefore Will cannot revoke his acceptation. However, “Even with instantaneous
communications, the courts have flexibly interpreted the meaning of ‘received’
in order to reached their preferred conclusion.”xxii
BIMSoft’s secretary on duty confirmed that recordings on the answering machines
were passed to Sean to listen to them. In addition she took note of Will’s
withdrawal wish. This confirms that likely the withdrawal will be communicated   after the actual reception of the
acceptance. Moreover, the acceptance was already received by the technical
staff as the system trigger automatic messages when an order is placed. Seemingly,
the contract was concluded and the revocation will constitute a breach of the
contract. Likely there is no room to the courts, in this case, to interpret the
meaning of ‘received’ to reach a different conclusion.

Irrespective of whether ED
concluded a contract with BIMSoft or not, the latter has an artificial
intelligence system which detects placed orders and notifies engineers so they
can act upon them. The first operation is to check the appropriateness of the
premises for the installation of the product ordered. The injured student on
holiday may sue Vishnu or, more likely, his employer (BIMSoft), in tort for
negligence.xxiii
For a claim to succeed in negligence in common law, Sarah must show that Vishnu
owed her a duty of care, that Vishnu broke that duty, that the breach of duty caused
her harm and the harm is not too remote. The first issue to determine is
whether or not Vishnu owed Sarah a duty of care. The test which Lord Atkin
employed for the existence of duty of care is known as the ‘neighbour principle’.xxiv
Duty of care can be broken down into two questionsxxv:
First, is this a case to which the law of negligence is applicable?xxvi
The second is was it foreseeable that this claimant would be harmed by the
defendant’s act?xxvii
The test of duty of care which is currently regarded as definitive was stated
in the case of Caparo Industries plc v Dickman.xxviii
Lord Bridge introduced a third element, ‘fair, just and reasonable’, the test
became known as the Caparo ‘three-stage test’. There is no need to foresee the
precise nature of the injury, only the general loss should be foreseeable.xxix
 Moreover, Sarah was directly affected by the Vishnu’s negligent
act; there is obvious closeness in time and space, and no need of relationship
proximity.xxx The
issue now is whether it is fair, just and reasonable to impose a duty. In
applying the third stage of the Caparo test, of fair, just and reasonable, the
courts take certain policy factors into account such as loss allocation,
floodgates and the practical effect of imposing liability. In Sarah’s case, the
court would likely impose liability on Vishnu and/or his employer as it is just,
fair and reasonable.

The burden is on Sarah to
prove that a reasonable man of ordinary intelligence and experience, in the
position of Vishnu would have foreseen that injury to a passer-by could have
resulted from his action. It is not always easy to reasonably foresee injuryxxxi.
In Sarah’s case a reasonable man would have said that leaving a toolbox close
to the entrance of a pedestrian walkway was likely to cause an accident to a pedestrian
and would not have left an object close to the entrance. The toolbox should
have been left in the engineer’s car and then carried straight to the work
site. It is a general rule that pedestrian paths must be clear of any obstacle.
Consequently, there is little doubt that Vishnu fell below the standard of care
required.xxxii
Therefore, it is clear that Vishnu breached his duty.

Sarah
must also prove on the balance of probabilities that the breach of duty caused
her harm. Applying the ‘but for’ testxxxiii Sarah should be able
to establish the causal link between the breach and her loss as a matter of
fact. Otherwise, her claim would fail.xxxiv Causation is
established by satisfying the ‘but for’ test that is, would Sarah have suffered
the losses but for Vishnu’s breach of duty. The answer is obviously “No”, as
Sarah tripped over the toolbox and ‘but for’ Vishnu’s breach the accident would
not have occurred. Sarah injured her right ankle, shoulders and neck. Further
injuries were suffered by Sarah whilst transported to the hospital. The issue
now is how much of Sarah’s loss should be attributable to Vishnu and whether
the harm is the foreseeable consequence of the breach of duty.xxxv It was foreseeable to use
an ambulance to transport an injured person to the hospital, it was also
foreseeable that a complication or an accident could happen while the injured
was being transported. It could be argued that the way the further injuries occurred
was unexpectedxxxvi
but in any case they were foreseeable. It is unlikely that courts would
consider that the intervening act broke the chain of causation. The transport
was not unreasonable or extraneous or extrinsic.xxxvii It was demonstrated
that Vishnu was liable to Sarah. However, Vishnu was a BIMSoft’s employee; he
is one of the engineers of BIMSoft and therefore, an employer/employee
relationship does exist. Thus, likely BIMSoft is vicariously liable for Vishnu’s
negligence. Vishnu’s negligence was committed whilst he was in the course of
his employment. To determine this with certainty, courts use two tests, namely the
‘Salmond’ testxxxviii
and the ‘close connection’ test established in Lister v Hesley Hall Ltd.xxxix Even though the close
connection test in Lister was initially adopted in Scotland, in the case of
Wilson v Excel UK Limited,xl the Kirby principles were
used. Thus, Vishnu and his employer are likely to be held liable; therefore,
Sarah should not bring any action against anyone other than Vishnu’s employerxli as the chain of
causation does not seem to be broken.

BIMSoft
could argue that Sarah voluntarily assumed the risk, ‘volonti non fit injura’.xlii If their argument was
successful, it would be a complete defence; so if it was established, it would
relieve BIMSoft from all liability. BIMSoft could sustain that Sarah should have
taken reasonable care for her own safety. If she had been keeping a proper look
out, she could have observed and avoided tripping over the toolbox. She was not
watching where she was going. BIMSoft could argue that there was contributory
negligencexliii
(partial defence), so that damages may be reduced under the Contributory
Negligence Act 1945. BIMSoft could hold that Sarah was not taking appropriate
action for her own safety; the toolbox must have been clearly visible to her.  A court would likely find that Sarah acted as
a reasonable  prudent man,xliv so, the court would
likely not uphold the arguments of the defence as BIMSoft created a foreseeable
risk of injury to pedestrians in leaving a toolbox close to the entrance of a
pedestrian walkway and did nothing to draw the attention of passers-by to its
presence.

Sarah
is likely to be successful in claiming damages for her injury, should then be
put in the position she would have been in before the injury occurred,xlv there should be
restitution to integrum.

Sarah
should seek damages for the significant injuries she sustained as well as damages
for pain and suffering. Considering the pecuniary damages, Sarah could recover
for expenses reasonably incurred (medical expenses), the loss of earnings from
her football team (as a professional player) and the interests for the period
between the accident and the time receiving the compensation. As indicated by
the diagnostic made by the medical team, Sarah will be unavailable only for a
few months. For that reason the calculation of the award would be
straightforward. Regarding the non-pecuniary damages, they would represent,
firstly, the effect of the injuries themselves, they are determined using a
tariff system displayed in a table showing ‘Judicial Studies Board’  guidelinesxlvi, secondly the pain and suffering
and finally the impact of missing the second semester school work at the
university.

iBurrows, A. (2009).
A Casebook on Contract (2nd ed., pp. 5). 

iiHarvey
v Facey 1893 AC 552

iiiSpencer v Harding (1870)
LR 5 CP 561

ivCarlill v Carbolic
Smoke Ball Company 1892 EWCA Civ 1

v Felthouse v Bindley
(1862)

viPartridge v
Crittenden 1968 1 WLR 1204

viiGibson v Manchester
City Council 1979 UHKL

viiiBear Stearns Bank
Plc v Forum Global Equity Ltd 2007 EWHC 1576

ixEntores v Miles Far East 1955 2 QB 327 Court of Appeal

xAdams v Lindsell
(1818) 1B 681

xiTaylor

xiiHadley v Baxendale (1854) 156 ER
145

xiiiMathieson  Gee (Ayrshire) Ltd. V
Quigley 1952
SC (HL) 38

xivByrne v Tienhoven
(1880) 5 CPD 344.

xv Dickinson v Dodds
(1876) LR 2 Ch D 463

xvi Holwell Securities
v Hughes 1974 1 WLR 155

xvii Brinkibon Ltd. v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH 1983 2
AC 34

xviii Taylor, R, Taylor, D, Contract Law Directions 5th edn
(OUP 2015)

xix 1840 EWCH
J90

xx (1880) 5 QBD
346

xxi Ibid Taylor

xxii Ibid Taylor

xxiii Winfield’s said
‘Negligence as a tort is a breach of a legal duty to take care which results in
damage to the claimant.’

xxiv Donoghue v
Stevenson 1932  AC 562

xxv Vera
Bermingham ….

xxvi General and
determined as a matter of law and policy

xxvii Specific and
fact-based question.

xxviii 1990  1 All E R 568

 

xxix Hughes v Lord Advocate 1963 SC (HL) 31

xxx Bourhill v Young (1943)

xxxi Smith v
Littlewoods 1987 SCLR 489 

xxxii Blyth v Birmingham Waterworks Co (1856) 11 Ex 781.

xxxiii Barnett v Chelsea & Kensington Hospital 1969 1
QB 428

xxxiv Pickford v ICI (1998)

xxxv Wagon Mound nº1 (1961)

xxxvi

xxxvii The Oropesa 1943 1 All ER 214 p 32

xxxviii J salmond, Law of torts (Sweet and
Maxwell,London,1907) 83.     

xxxix 2002 1 AC 215.

 

xl 2010 CSIH 35.

xli In Dubai Aluminium Co Ltd v Salaam 2002 UKHL 48, it
was stated that employers reap profits so, they should feel the burdens.

xlii Nettleship v Weston 1971 2 QB 691 (CA)    

xliii …….

xliv Jones v Livox Quarries 1952 2 QB 608.

xlv Livingstone v Rawtards Coal Co (1880) 5 App Cas 25 

xlvi Judicial Studies Board’  guidelines (10th Edition) for the assessment
of general damages in personal injury cases.

In the
scenario at hand, Will and Sarah have to be advised. Will needs to be advised about
his potential legal position, i.e whether or not he concluded a contract with
BIMsoft and/or AutoBIM, whereas Sarah needs advice about her potential legal
claims.

Will faces two
main areas of liability that would be analysed, Will’s liability to BIMsoft and
to AutoBIM. On the other hand, BIMsoft’s liability to Sarah needs to be
addressed separately.

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The analysis
requires addressing relevant principles of contract law, mainly offer and
acceptance, revocation of an offer, and relevant principles of tort law.

In the beginning, Will, the
project manager of NewDay Construction Limited hereafter (ND) approached Sean,
the Sales Director at BIMsoft and asked him to quote a price for the
installation of BIMsoft’s ‘state-of-the-art’ BIM Generation and Management
software .So, Will made an ‘invitatio ad offerendum’, viz., an invitation to
treat rather than an offer. Professor Andrew Burrows defined an invitation to
treat as i”…an
expression of willingness to negotiate. A person making an invitation to treat
does not intend to be bound as soon as it is accepted by the person to whom the
statement is addressed.” At this stage, Will’s request cannot form a contract;iiit
was merely an invitation for BIMsoft to make an offer.

Sean replied to the
invitation to treat by making an offer, he offered a lump sum price of 10,500
for the installation, including appropriate staff training. The question to be
addressed is whether the offer made by Sean legally binds ND and whether the
parties entered into a contract. As indicated above Will’s request to quote a
price was not an offer. Willes, J. held that the absence of any specific
wording such as “and we undertake to sell to the highest bidder”
rebutted any presumption that the Defendants had intended to be bound by a
contract.iiiThus,
in this stage, the offer was not conclusive as such; ND acceptance is needed. Unquestionably, as a general
proposition, when an offer is made, it is necessary in order to make a binding
contract, not only that it should be accepted, but that the acceptance should
be notified.iv In
this earlier stage there is no acceptance, let alone a communication. Mere
silence does not amount to acceptance. vTherefore,
no contract was concluded.

Subsequently, on the same
day, Will received an advert by email from AutoBIM Ltd offering their cutting
edge BIM software at a price guaranteed not to exceed _9,000. Will immediately
placed an order by telephone. Having a discussion afterwards with one of the
technical staff of AutoBIM, the cost of installation turned out to be higher
than it was advertised. At which point, Will withdrew his order. The issue is
to establish whether a contract is concluded between ND and AutoBIM.

The communication of the
advert by e-mail does not constitute an issue as a contract can be agreed to in
the form of e-mail., but this won’t be elaborated upon. However, it is arguable
to consider whether the advert received amounts to an offer.

Lord Parker CJ said:vi
“I think when one is dealing with advertisements and circulars, unless they
indeed come from manufacturers, there is business sense in their being
construed as invitations to treat and not offers for sale.”.

Furthermore, the general
rule is that it must be reasonable under the circumstances for the recipient to
believe that the communication is an offer. The communication should be
definite, i.e. spells out,as a minimum, who are the parties, what is the
subject matter as quantity and quality, what is the price and what is the
timeframe. In the current communication, the price is not clear as it only
specifies the upper threshold. The quantity and quality lack precise
definition. The recipient (Will) cannot understand the breakdown of the price
and whether the said price includes installation, staff training, maintenance and
on how many computers can be installed. The communication is less than an offer
and tantamount to a mere invitation to treat. On top of that, the advert states
that AutoBIM ‘can offer’ software. This expression cannot be regarded as an
offer to sell, capable of acceptance, so as to constitute a contract.vii
If Will had not placed an order (or had thought before placing the order), the
matter would have been straight forward; no legal binding is established. However,
the placement of the order by Will through a telephone communication is likely
to be considered as a communicated acceptance.viii
To amount to an effective acceptance, the acceptance is needed to be
communicated to the offeree.ix
In the case in study, the ‘postal rule’xdoes
not apply as the communication of acceptance, in this case, is considered as
instantaneous communication.xi
Seemingly, ED is bound to AutoBIM and the contract is concluded.
Notwithstanding the apparently legal binding, Will, after having contact with
AutoBIM technical staff, withdrew his order. Three scenarios could happen.
Firstly, the court could take AutoBIM´s communication as an offer (unlikely to
happen), and as in the case of instantaneous acceptance, retracting is not possible
then, and ED would  be liable to AutoBIM.
The latter is entitled to be compensated for the foreseeable losses that they
are not too remote, pursuant the remoteness of damage rule.xiiSecondly,
the court would take AutoBIM´s communication as an offer (unlikely to happen).
The acceptance was communicated for a price not exceeding 9,000. Later the
price becomes more than 12,000; higher than the initial offer which ED acted
upon.. Therefore, the acceptance does not match the offer anymore; consequently
there is not contract at all.xiii
Thirdly, likely the court could consider that the communication made by AutoBIM
does not tantamount to an offer; it is an invitation to treat (as discussed
above). Thus the offeror shifts from AutoBIM to ED and the former becomes the
offeree. Will withdrew the offer before it was accepted. To be effective the
revocation has to be received by the offeree.xiv
That what Will did.

The day after, Will communicated to
BIMSoft his acceptance of the offer made by Sean. In his offer, Sean placed a
time limit; he stated that the price could be held only for a week. An offeror
can place a time limit on his offer and prevent the offeree from accepting
after that time, the offer lapses after that time.xv
 Will’s purported communication conformed
to the timeframe of the offer as it was made the day after. BIMSoft did not
prescribe any mode of communicationxvi
 this gave the opportunity to Will to
communicate his acceptance in any form. Will telephoned BIMSoft and left a
message on the answering machine. In cases of instantaneous communication, the
contract is only complete when the acceptance is received by the offeror;
receipt rule.xvii
Therefore, it is of paramount importance to verify whether the communication reached
the offeror (Sean). . Denning LJ in Entores case clarified the issue of the
acceptance, he said “…that if the line went dead when the purported acceptance
was sent there would be no contract because the sender would know that the
communication would be not successful…”.xviii
However, in the case of Will the line did no go dead and likely the offeror
received the acceptance.

At the same time, Will
asked whether the cost comprised training for further staff to be contracted
within six months from the date the contract came into force. The issue is
whether Will’s question amounts to counter-offer or whether it is tantamount to
a simple request for further information. As a general rule, an acceptance has
to be a mirror image of the offer to reflect the ‘consensus ad idem’ of the parties.
A counter-offer or as it is sometimes called a qualified acceptance destroys
the original offer and replaces it. In the case of Hyde v Wrenchxix,
Lord Langdale ruled that any counter-offer cancels the original offer, therefore,
there exists no obligation of any sort between the parties. An inquiry for
information, by contrast, does not intend to reject an offer ready for
acceptance. In Stevenson, Jaques & Co. v McLeanxx,
it was held that the complainant was only inquiring for more information about
whether the terms of the offer could be changed; there was no specific wording
to indicate that it was a counter offer or rejection. This was in contrast to
Hyde v Wrench. This meant that the offer made by the defendant was still valid
and the second telegram by the complainant formed a binding contract. On one
hand, Will’s request could be understood as an inquiry for clarification, as
the offer covers appropriate staff training but without further details. In
this case the inquiry does not imply a counter-offer, thus the offer is still
open for acceptance. On the other hand, Will’s inquiry could be considered a
counter-offer as it changed the quantity of the offer. In fact, Will sought to
include on-site training for new staff. In this case, the inquiry killed off
the offer immediately. Consequently, there was no contract. “The severity of
this approach depends on how the courts distinguish counter-offers and inquiries…
Drawing the line between an inquiry which implies a counter-offer and one which
does not is a difficult job.”xxi
Likely courts would consider that Will’s request had not amounted to a
counter-offer. 

Will was uncertain about
his action; he communicated his decision to cancel his order, in other words he
wanted to withdraw his acceptance. As general rule, an acceptance delivered by
instantaneous communication is binding when it is received. As mentioned
earlier, BIMSoflt likely received the communication, therefore it is binding.
Therefore Will cannot revoke his acceptation. However, “Even with instantaneous
communications, the courts have flexibly interpreted the meaning of ‘received’
in order to reached their preferred conclusion.”xxii
BIMSoft’s secretary on duty confirmed that recordings on the answering machines
were passed to Sean to listen to them. In addition she took note of Will’s
withdrawal wish. This confirms that likely the withdrawal will be communicated   after the actual reception of the
acceptance. Moreover, the acceptance was already received by the technical
staff as the system trigger automatic messages when an order is placed. Seemingly,
the contract was concluded and the revocation will constitute a breach of the
contract. Likely there is no room to the courts, in this case, to interpret the
meaning of ‘received’ to reach a different conclusion.

Irrespective of whether ED
concluded a contract with BIMSoft or not, the latter has an artificial
intelligence system which detects placed orders and notifies engineers so they
can act upon them. The first operation is to check the appropriateness of the
premises for the installation of the product ordered. The injured student on
holiday may sue Vishnu or, more likely, his employer (BIMSoft), in tort for
negligence.xxiii
For a claim to succeed in negligence in common law, Sarah must show that Vishnu
owed her a duty of care, that Vishnu broke that duty, that the breach of duty caused
her harm and the harm is not too remote. The first issue to determine is
whether or not Vishnu owed Sarah a duty of care. The test which Lord Atkin
employed for the existence of duty of care is known as the ‘neighbour principle’.xxiv
Duty of care can be broken down into two questionsxxv:
First, is this a case to which the law of negligence is applicable?xxvi
The second is was it foreseeable that this claimant would be harmed by the
defendant’s act?xxvii
The test of duty of care which is currently regarded as definitive was stated
in the case of Caparo Industries plc v Dickman.xxviii
Lord Bridge introduced a third element, ‘fair, just and reasonable’, the test
became known as the Caparo ‘three-stage test’. There is no need to foresee the
precise nature of the injury, only the general loss should be foreseeable.xxix
 Moreover, Sarah was directly affected by the Vishnu’s negligent
act; there is obvious closeness in time and space, and no need of relationship
proximity.xxx The
issue now is whether it is fair, just and reasonable to impose a duty. In
applying the third stage of the Caparo test, of fair, just and reasonable, the
courts take certain policy factors into account such as loss allocation,
floodgates and the practical effect of imposing liability. In Sarah’s case, the
court would likely impose liability on Vishnu and/or his employer as it is just,
fair and reasonable.

The burden is on Sarah to
prove that a reasonable man of ordinary intelligence and experience, in the
position of Vishnu would have foreseen that injury to a passer-by could have
resulted from his action. It is not always easy to reasonably foresee injuryxxxi.
In Sarah’s case a reasonable man would have said that leaving a toolbox close
to the entrance of a pedestrian walkway was likely to cause an accident to a pedestrian
and would not have left an object close to the entrance. The toolbox should
have been left in the engineer’s car and then carried straight to the work
site. It is a general rule that pedestrian paths must be clear of any obstacle.
Consequently, there is little doubt that Vishnu fell below the standard of care
required.xxxii
Therefore, it is clear that Vishnu breached his duty.

Sarah
must also prove on the balance of probabilities that the breach of duty caused
her harm. Applying the ‘but for’ testxxxiii Sarah should be able
to establish the causal link between the breach and her loss as a matter of
fact. Otherwise, her claim would fail.xxxiv Causation is
established by satisfying the ‘but for’ test that is, would Sarah have suffered
the losses but for Vishnu’s breach of duty. The answer is obviously “No”, as
Sarah tripped over the toolbox and ‘but for’ Vishnu’s breach the accident would
not have occurred. Sarah injured her right ankle, shoulders and neck. Further
injuries were suffered by Sarah whilst transported to the hospital. The issue
now is how much of Sarah’s loss should be attributable to Vishnu and whether
the harm is the foreseeable consequence of the breach of duty.xxxv It was foreseeable to use
an ambulance to transport an injured person to the hospital, it was also
foreseeable that a complication or an accident could happen while the injured
was being transported. It could be argued that the way the further injuries occurred
was unexpectedxxxvi
but in any case they were foreseeable. It is unlikely that courts would
consider that the intervening act broke the chain of causation. The transport
was not unreasonable or extraneous or extrinsic.xxxvii It was demonstrated
that Vishnu was liable to Sarah. However, Vishnu was a BIMSoft’s employee; he
is one of the engineers of BIMSoft and therefore, an employer/employee
relationship does exist. Thus, likely BIMSoft is vicariously liable for Vishnu’s
negligence. Vishnu’s negligence was committed whilst he was in the course of
his employment. To determine this with certainty, courts use two tests, namely the
‘Salmond’ testxxxviii
and the ‘close connection’ test established in Lister v Hesley Hall Ltd.xxxix Even though the close
connection test in Lister was initially adopted in Scotland, in the case of
Wilson v Excel UK Limited,xl the Kirby principles were
used. Thus, Vishnu and his employer are likely to be held liable; therefore,
Sarah should not bring any action against anyone other than Vishnu’s employerxli as the chain of
causation does not seem to be broken.

BIMSoft
could argue that Sarah voluntarily assumed the risk, ‘volonti non fit injura’.xlii If their argument was
successful, it would be a complete defence; so if it was established, it would
relieve BIMSoft from all liability. BIMSoft could sustain that Sarah should have
taken reasonable care for her own safety. If she had been keeping a proper look
out, she could have observed and avoided tripping over the toolbox. She was not
watching where she was going. BIMSoft could argue that there was contributory
negligencexliii
(partial defence), so that damages may be reduced under the Contributory
Negligence Act 1945. BIMSoft could hold that Sarah was not taking appropriate
action for her own safety; the toolbox must have been clearly visible to her.  A court would likely find that Sarah acted as
a reasonable  prudent man,xliv so, the court would
likely not uphold the arguments of the defence as BIMSoft created a foreseeable
risk of injury to pedestrians in leaving a toolbox close to the entrance of a
pedestrian walkway and did nothing to draw the attention of passers-by to its
presence.

Sarah
is likely to be successful in claiming damages for her injury, should then be
put in the position she would have been in before the injury occurred,xlv there should be
restitution to integrum.

Sarah
should seek damages for the significant injuries she sustained as well as damages
for pain and suffering. Considering the pecuniary damages, Sarah could recover
for expenses reasonably incurred (medical expenses), the loss of earnings from
her football team (as a professional player) and the interests for the period
between the accident and the time receiving the compensation. As indicated by
the diagnostic made by the medical team, Sarah will be unavailable only for a
few months. For that reason the calculation of the award would be
straightforward. Regarding the non-pecuniary damages, they would represent,
firstly, the effect of the injuries themselves, they are determined using a
tariff system displayed in a table showing ‘Judicial Studies Board’  guidelinesxlvi, secondly the pain and suffering
and finally the impact of missing the second semester school work at the
university.

iBurrows, A. (2009).
A Casebook on Contract (2nd ed., pp. 5). 

iiHarvey
v Facey 1893 AC 552

iiiSpencer v Harding (1870)
LR 5 CP 561

ivCarlill v Carbolic
Smoke Ball Company 1892 EWCA Civ 1

v Felthouse v Bindley
(1862)

viPartridge v
Crittenden 1968 1 WLR 1204

viiGibson v Manchester
City Council 1979 UHKL

viiiBear Stearns Bank
Plc v Forum Global Equity Ltd 2007 EWHC 1576

ixEntores v Miles Far East 1955 2 QB 327 Court of Appeal

xAdams v Lindsell
(1818) 1B 681

xiTaylor

xiiHadley v Baxendale (1854) 156 ER
145

xiiiMathieson  Gee (Ayrshire) Ltd. V
Quigley 1952
SC (HL) 38

xivByrne v Tienhoven
(1880) 5 CPD 344.

xv Dickinson v Dodds
(1876) LR 2 Ch D 463

xvi Holwell Securities
v Hughes 1974 1 WLR 155

xvii Brinkibon Ltd. v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH 1983 2
AC 34

xviii Taylor, R, Taylor, D, Contract Law Directions 5th edn
(OUP 2015)

xix 1840 EWCH
J90

xx (1880) 5 QBD
346

xxi Ibid Taylor

xxii Ibid Taylor

xxiii Winfield’s said
‘Negligence as a tort is a breach of a legal duty to take care which results in
damage to the claimant.’

xxiv Donoghue v
Stevenson 1932  AC 562

xxv Vera
Bermingham ….

xxvi General and
determined as a matter of law and policy

xxvii Specific and
fact-based question.

xxviii 1990  1 All E R 568

 

xxix Hughes v Lord Advocate 1963 SC (HL) 31

xxx Bourhill v Young (1943)

xxxi Smith v
Littlewoods 1987 SCLR 489 

xxxii Blyth v Birmingham Waterworks Co (1856) 11 Ex 781.

xxxiii Barnett v Chelsea & Kensington Hospital 1969 1
QB 428

xxxiv Pickford v ICI (1998)

xxxv Wagon Mound nº1 (1961)

xxxvi

xxxvii The Oropesa 1943 1 All ER 214 p 32

xxxviii J salmond, Law of torts (Sweet and
Maxwell,London,1907) 83.     

xxxix 2002 1 AC 215.

 

xl 2010 CSIH 35.

xli In Dubai Aluminium Co Ltd v Salaam 2002 UKHL 48, it
was stated that employers reap profits so, they should feel the burdens.

xlii Nettleship v Weston 1971 2 QB 691 (CA)    

xliii …….

xliv Jones v Livox Quarries 1952 2 QB 608.

xlv Livingstone v Rawtards Coal Co (1880) 5 App Cas 25 

xlvi Judicial Studies Board’  guidelines (10th Edition) for the assessment
of general damages in personal injury cases.

x

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