Contract: Formation

For contract to be valid:

1. Offer
2. Acceptance
3. Consideration
4. Intention to create legal intentions
1. Offer expression of ones definite willingness to make an agreement with promissory
intent.
Carlil v Carbolic Smoke Ball Co. (offer made with promissory intent, with sincerity)
Partridge v Crittenden (invitation advertisements, catalogues)
Harvey v Facey (provision of information not offer)
S14 ETA (web-based advertisements are invitations)
Termination of offer revocation only effective when offeree1 receives notice of revocation)
Postal rule not applicable.
Byrne v Van Tienhoven (valid contract, withdrawal not effective because acceptance
communicated first)
Communication of revocation by reliable third party okay
Dickinson v Dodds (reliable third party communicated withdrawal, revocation effective)
Cannot withdraw once offeree starts to act in unilateral contracts.
Counter-offer equivalent to first offer is rejected.
Hyde v Wrench (no offer, counter-offer extinguished first offer)
Lapse of time acceptance after that period of time not effective, offer lapsed.
Ramsgate Victoria Hotel Co v Montefiore (offer lapsed, more than 6 months)
2. Acceptance MUST be unconditional expression of assent.
Subject to changes conditional acceptance, not accepted yet.
Rejection effective only when communicated to offeror.
Communication of acceptance physically received or be heard by offeror2.
*Silence both parties must agree to arrangement
Felthouse v Bindley (no contract, no communication of acceptance, D3 did not agree to silence
agreement)
*Postal Acceptance Rule acceptance effective when letter is posted, regardless if reached
offeror.
Adams v Lindsell (contract formed, acceptance communicated when P4 posted letter)
If method of communicating acceptance is not logical, then postal rule cannot be used. E.g. offer
send by email, logically is use email to reply acceptance.
*Instantaneous Communications
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Offeree: party who receives offer

Offeror: the party who makes offer
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D: defendant
4
P: plaintiff
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Telephone/fax: receipt rule (acceptance effective only when offeror receives)

Entores Ltd v Miles Far East Corporation (contract made only when fax is received by
offeror, communication of acceptance received)
Email (not real-time)
S13(2) ETA (Receipt of acceptance only when email is capable of being retrieved at electronic
address designated by offeror, not necessary to read)
3. Consideration can be price/compensation for the promise. Essential for all contracts, makes
agreement enforceable5.
Executory (consideration yet to be performed)
Executed (consideration performed)
*Past (consideration performed prior to promises being exchanged, performed without
contemplation of/in response to promise) Generally not sufficient to be enforceable.
Pao On v Lau Yiu Long (past consideration becomes executed, there is consideration)
Conditions:
Act done at promisors request
Parties understood act is to be remunerated
Contract must be otherwise enforceable
*Consideration MUST move from promisee6 but need not go to promisor7 - promisee must show
consideration has moved to enforce promise.
Tweedle v Atkinson (consideration never move from P. Privity of contract)
Consideration need not benefit promisor.
*Need not be adequate but must be sufficient not about matching value for value (adequacy).
But has to be of some value in eyes of law (sufficiency).
Chappell & Co Ltd v Nestle Co Ltd (not about the amount of value)
Moral obligation not sufficient.
Eastwood v Kenyon (insufficient consideration)
Vague/Insubstantial promise not sufficient, consideration has to be tangible.
White v Bluett (insufficient)
Existing public duty not sufficient, targeted at law enforcement officers.
Collins v Godefroy
Unless, did more than required of existing public duty.
Glassbrook Bros Ltd v Glamorgan City Council (exception: sufficient)
Existing duty to promisor not sufficient.
Stilk v Myrick (contractual duty, insufficient)
Unless, doing more than required under contract,
Hartley v Ponsonby (exception: sufficient)
or when practical benefits gained.
Williams v Roffey (sufficient, but very exception)
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Offer & acceptance form contract.

Promisee: person who receives promise
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Promisor: person who makes promise
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Pinnels Case: partial fulfillment does not discharge8 promisees obligations.

Applies to debts. E.g. If owe $10, but pay $9 even if creditor okay, debtor still have obligations.
Unless, part payment made at request of creditor at earlier date
Promissory Estoppel (P.E) doctrine that promisee have valid defence against promisors claim
even without consideration given by promisee. (benefits promisee) Only temporary where
original agreement is suspended. Only for defence against Ps claim.
Central London Property Trust v High Trees House Ltd (promise is enforceable even though
no consideration)
To establish P.E:
Promisee relied upon promise and altered position (gave up other options)
Inequitable for promisor to be allowed to go back on promise
Parties must have existing legal relationship (landlord/tenant, debtor/creditor)
Promise must be clear and unequivocal, intended to affect relationship
4. Intention to create legal relations Ensure promise has binding obligation for both parties to
follow. Use objective test to see if a reasonable person would consider promisor to intend his
promise to have legal consequences.
Social & domestic agreements between family and friends, generally no intention.
Balfour v Balfour (no intention, domestic agreement out of love and affection)
Coward v Motor Insurance Bureau (no intention, social agreement)
Merritt v Merritt (intention to make agreement binding is present)
Commercial agreements generally intention is present
Edwards v Skyways Ltd (intention present, promise legally enforceable)
Except honour clauses (expressly stating agreement not legally binding)
Rose & Frank Co v J R Crompton (not binding due to clause)
Privity of contract general rule that no one, other than party to contract, may be entitled to
enforce or be bound by contracts terms.
Tweedle v Atkinson
Unless,
S2(1) CRTA/Carriernet Global Ltd v Abkey Pte Ltd
Contract: Terms
Puffs exaggeration, immeasurable.
Representations not integral part of contract. If untrue, sue under misrepresentation, no breach
of contract.
Terms form part of contract.
1. Terms vs. Representations
When statement made closer to conclusion of contract, more likely to be term.
Routledge v McKay (not term, time interval too long)
Makers emphasis greater emphasis, more likely statement is term.
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Discharge: dismiss
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Bannerman v White (term)

Makers special knowledge maker of statement has greater knowledge, more likely is
term.
Oscar Chess Ltd v Williams (not term)
Dick Bentley Productions Ltd v Harold Smith (term)
Invitation to verify statement maker of statement invites other party to verify
statements truth, more likely to be representation.

Written vs. Oral statements

If oral statement made but not formalized in agreement, oral statement likely to be
representation.
*Parol Evidence Rule giving precedence to written contracts.
2. Express vs. Implied terms
Express written/oral
Implied not expressly agreed but implied into contract. Through statues or court (custom &
usage or business efficacy)
Business Efficacy court supply term as having been intended by parties. Together with
officious bystander test
The Moorcock (there is implied term of jetty being safe to use)
3. Condition vs. Warranty terms
Conditions important, essential and go to root of contract. Breach of condition, injured party
can affirm or discharge and claim damages.
Warranties secondary obligations. Breach of warranty, injured party can only claim damages.
Poussard v Spiers (a term, so discharge and claim)
Bettini v Gye (not a condition, so can claim damages only)
4. Innominate term condition + warranty. If breach of term deprives injured party of
substantially the whole benefit, then can terminate the contract.
Hongkong Fir (innominate term)9
Exemption Clauses (E.C) term in contract which seeks to exclude liability of party relying on
clause.
Must establish 4 points to rely on clause:
Incorporation of clause, by signature or notice, does not matter if clause is not read.
Cannot have unusual factors (fraud etc) in the case.
LEstrange v Graucob (incorporated through signature)
If no written contract, must give reasonably sufficient notice about clause.
Reasonably sufficient notice: contemporaneity or sufficiency
Olley v Marlborough Court Ltd (contemporaneity, too late. Cannot rely on E.C.)
Thornton v Shoe Lane Parking Ltd (not sufficient. Cannot rely on E.C)
Construction of clause, wider the clause, more protection.
Main Purpose Rule general presumption that parties do not intend a E.C to defeat the
main purpose of contract. E.C ineffective if involves fundamental breach.
Photo Production Ltd v Securicor Transport Ltd (E.C invalid, fundamental breach of
contract)
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Use RDC approach if condition-warranty and Hongkong Fir approaches do not work.
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If any unusual factors present to limit the effectiveness of contract. Collateral contracts
(contract implied by court and runs parallel with main contract) can defeat E.C.
Evans v Merzario Ltd (E.C neutralized due to collateral contract, so cannot rely)
Clause cannot contravene the Unfair Contract Terms Act (UCTA) unreasonable
clauses will be invalid no matter what.
S11(5) UCTA: burden of proving reasonableness falls upon party seeking to rely on
E.C.
S2(1) UCTA: Liability for death or personal injury cannot be excluded
S2(2) UCTA: Liability for other loss or damage, financial loss or property damage, can
be excluded if clause reasonable.
Misrepresentation (Unusual factors) can seek protection for misrepresentation only if E.C is
reasonable.
Must consider factors in Second Schedule of UCTA:
Bargaining position of parties. If party relying on E.C has strong bargaining power, more
likely to be unreasonable.
If customer received inducement to accept E.C, likely to be reasonable.
If business gets insurance for liability, E.C likely to be reasonable.
Compliance with clauses conditions must be practicable.
If customer knew of E.C, likely to be reasonable.
Goods manufactured to customers specifications cause damage, clause is reasonable.

Contract: Vitiating Factors

Vitiating factors affect enforceability of contract.
1. Misrepresentation
2. Illegality
3. Incapacity
4. Duress contract can be void or voidable
5. Mistake
1. Misrepresentation false statement of fact made by representor10 to representee11, which
induces and is relied upon by representee to alter position, resulting in representee suffering
loss.
False statement of fact of past/existing fact, cannot be opinion/future action.
Edgington v Fitzmaurice (misrepresentation, false statement of fact)
Bisset v Wilkinson (not misrepresentation, statement of opinion)
*Silence not misrepresentation unless partial non-disclosure becomes half-truth.
Dimmock v Hallett (unsaid facts made stated facts into half-truths, misrepresentation)
Inducement must induce in entering contract. Need not be the only reason. Opportunity to
investigate truth of statement does not automatically remove possibility of reliance/inducement.
Unless, innocent party knows of misrepresentation before contract and does not rely on
misrepresentation to enter.
Redgrave v Hurd (misrepresentation, but no damages because is innocent misrepresentation)

10
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Representor: person who makes the misrepresentation

Representee: person who listens to the misrepresentation
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Fraudulent Misrepresentation false statement made with intention to deceive. Tort of deceit.
Burden lies on innocent party to prove dishonesty on representors part if not, not fraudulent.
Innocent party can rescind12 and claim damages.
Derry v Peek (no fraudulent)
*Negligent Misrepresentation did not intend to deceive but did not believe statement to be true.
S2(1) MA13: award damages, S2(2) MA: court can order damages instead of rescission.
S2(1): Burden lies on representor to prove that he has reasonable grounds to believe and did
believe the statement to be true.
Howard Marine (negligent misrepresentation, representor has no reasonable grounds to prove is
not)
Innocent Misrepresentation false statement without fraud and fault. Can rescind or claim
damages, or indemnity.
Rescission MUST be communicated to guilty party. Is unavailable when:
Lapse of reasonable time
Leaf v International Galleries (right to rescind lost, reasonable amount of time lapsed)
Parties cannot be restored to original position before contract, restitutio in integrum
impossible
Court uses its discretion to award damages in lieu of rescission
S2(2) MA
Affirmation made expressly or impliedly after discovery of misrepresentation
2. Illegality gaming & wagering, contrary to public policy, contrary to statute, restraint of
trade.
Gaming and wagering generally void by statute. S5 Civil Law Act
Contrary to public policy Void, contravene with public policy. (committing crime, promoting
sexual immorality, benefits foreign enemy/country)
Contrary to statute statutes prohibit certain contracts (illegal at inception), void.
Re Mahmoud and Ispahani (illegal at inception)
*Or penalize certain conduct without rendering the entire contract void (illegal in performance)
St John Shipping Corporation v Joseph Rank Ltd (illegal as performed, method of carrying
out contracts obligations is illegal)
Restraint of trade (ROT) agreements which business/person agrees to refrain from undertaking
certain types of trade/employment, prevent/minimize competition. General rule is void. Unless
fulfill 3 criteria:
Protect legitimate interest of the covenantee14. Usually goodwill, trade secrets/contracts.
Stratech Systems Ltd (ROT invalid, unable to show legitimate interest)
Reasonable scope in terms of time period, geographical scope, subject matter. Too long,
void.
*Blue Pencil Rule If clause unreasonable, court can amend by deleting but no addition
of words.
Goldsoll v Goldman (use Blue Pencil Rule sever other parts of clause, allow it to be
valid)
*If clause fulfills above 2, then is prima facie reasonable.

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Rescind: representee elects to terminate, contract is voidable

MA: Misrepresentation Act
14
Covenantee: person benefitting from restraint
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Not contrary to public interest. If has impact on trading arrangements, reduce

competition, void.

3. Incapacity contract unenforceable by reason of incapacity if lack of capacity by contracting

party.
Minors (below 21 years in Singapore) contracts not enforceable. Unless attained age of 18
years, S35, S36 Civil Law Act.
Valid contracts (with minors) contracts for necessaries (goods/services reasonably required by
minor at that point of time) or contracts of employment.
S3 Sale of Goods Act (define necessaries)
Nash v Inman (contract not enforceable, cannot prove goods were necessaries)
Valentini v Canali (not necessaries but cannot claim money back because used goods)
De Francesco v Barnum (employment contract not enforceable, not to benefit of minor)
Voidable contracts contract binds the other party, minor can repudiate contract without
liability during infancy or within reasonable time after attaining majority.
Ratifiable contracts neither valid nor enforceable against minor unless ratifies after attaining
majority. Still binds the other party.
Contracts: Discharge
1. Performance
2. Breach
3. Agreement
4. Frustration
1. Performance perform obligations fully and precisely (f&p).
Cutter v Powell (obligation not completed fully, contract not discharge)
Exceptions:
De Minimis Rule deviation in performance microscopic, deemed to have been performed f&p.
Arcos Ltd v E A Ronaasen & Son (deviation insignificant, contract performed f&p)
Substantial Performance substantially performed obligations, can claim money (contract price
cost of rectification to make good the defect). Still breach of warranty.
Hoenig v Isaacs (fulfill 90% of obligation, so can get payment but less of cost to rectify defect)
Bolton v Mahadeva (not substantially performed)
Divisible Contracts contracts paid in segments
Acceptance of Partial Performance promisee chooses to accept partial performance. Promisor
entitled to reasonable remuneration on quantum meruit basis but still liable for claim in
damages.
Sumpter v Hedges (no choice to accept/reject, partial performance fail)
2. Breach actual (already transpired) or anticipatory (not yet). Breach not necessary results in
discharge of contract. Must be repudiation to claim damages and/or elect to end contract. If
non-repudiatory, then damages only.
Repudiatory actual breach:
Renunciation by words or conduct with intention to not go on with contract, must be
clear intention.
Failure to perform must be fundamental and goes to root of contract.
Hongkong Fir Shipping (repudiatory breach)
Impossibility to perform
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If not, use RDC Concrete: contract says can discharge, renunciation, breach of condition,
substantially deprive innocent party of whole benefit.
Repudiatory anticipatory breach non-performance substantially deprives innocent party of
whole benefit.
Hochster v De La Tour (substantially deprive, repudiation)
Mersey Steel v Naylor Benson (non-performance is not repudiation)
Affirmation after anticipatory breach to continue with contract but only allowed if:
Innocent party show legitimate financial interest
Innocent party does not need cooperation of guilty party to perform contract
White & Carter v McGregor (can affirm, dont need guilty party)
4. Frustration supervening event occurs which neither party responsible for, causing radical
change in circumstances. No damages payable since no breach.
Davis Contractors v Fareham (no frustration, no radical change in circumstances)
Frustrated contracts occur:
Destruction of subject matter
Taylor v Caldwell (discharged by frustration)
Non-occurrence of event
Krell v Henry (contract frustrated)
Herne Bay Steamboat v Hutton (contract not frustrated)
Outbreak of war, hostilities
Tsakiroglou (no frustration)
Personal Incapacity
Poussard v Spiers (frustration due to illness)
Limiting factors:
Foreseeability more foreseeable, more unlikely to be frustrated.
Force Majeure Clause (FMC) clause expressly provides for occurrence of events but
party relying on FMC must take all reasonable steps to mitigate results.
Holcim v Precise Development (contract frustrated, took all reasonable steps to
mitigate)
Self-induced frustration
Maritime National Fish v Ocean Trawlers (self-induced so no frustration)
Effects of Frustration automatically discharges contract. Effective at point in time when
frustrating event occurs, require no communication.
Frustrated Contracts Act (FCA):
All future obligations cease.
S2(2) money paid prior is recoverable.
S2(2) money payable ceases to be payable.
S2(2) expenses incurred prior recoverable.
S2(3) benefits (not money) conferred prior can be compensated with amount court
considers just.
Contract: Remedies
1. Common law: Damages
2. Equitable: Specific Performance
3. Equitable: Injunction
4. Quantum Meruit claim as much as injured party has earned
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1. Common law: Damages monetary compensation. General rule that injured party always
have right to claim damages even if cannot terminate contract. Damages intended to place
injured party in same position if contract performed properly.
4 aspects to establish when deciding to apply damages:
Causation cause of loss must be dominantly due to breach. But-for test. Ensure that
loss can be recoverable.
Remoteness Hadley v Baxendale with 2 limbs; 1st limb covers normal damages that
arise naturally, 2nd limb covers unusual loss, actual knowledge is needed to be effective.
Knowledge of the usual practices of P
The Heron II (can claim damages under 1st limb)
Knowledge of likely loss suffered by P: imputed knowledge under 1st limb, actual under
2nd limb.
Victoria Laundry v Newman Industries (can claim for loss of profits under 1st limb,
but not for loss of lucrative profits by special order, no actual knowledge, 2nd limb)
Knowledge of Ps likely loss is a real possibility
Mitigation cannot recover loss that P could have avoided. Must take all reasonable
steps to mitigate loss. If take mitigation steps but increase losses instead, can recover
additional loss: Melachrino v Nicholl & Knight.
Assessment assessing damages. General rule is to put injured party in position that he
would be in if contract performed.
Expectation/Reliance loss can only claim either one unless calculate as net figure
exclusive of expenses. Expectation loss is loss of profits. Reliance loss is wasted
expenditure incurred by injured party.
Anglia Television Ltd v Reed (claim reliance loss because cannot calculate expectation
loss)
*Non-percuniary loss: hurt feelings, anxiety. No damages awarded usually.
Addis v Gramaphone (non-percuniary loss not awarded)
Jarvis v Swan Tours Ltd (exception where disappointment awarded with damages,
contracts aim to provide enjoyment but did not)
Farley v Skinner (exception)
Ruxley Electronics v Forsyth (exception)
Liquated damages vs. Penalties inclusion of clause specifying amount of damages.
Liquidated damages clause generally enforceable but if amounts to penalty, not
enforceable.
MUST follow guidelines from Dunlop v New Garage:
i. Liquidated damages extravagant, likely to be penalty.
ii. Single lump sum payment penalty.
If penalty, amount stipulated higher than actual loss, obtain damages for actual loss
suffered. If amount less than actual loss, can sue on clause recover no more than amount
stipulated or sue for breach and recover damages full.
2. Equitable: Specific Performance party seeking equitable remedies must come with clean
hands. Order of court requiring party to perform obligations as specified in contract, especially
subject matter is unique and damages not adequate remedy. Enforces positive obligations,
supposed to do something to compensate.
3. Equitable: Injunction court order requiring party to abide by negative covenant in contract.
Enforces negative restriction. Can be temporary or permanent.
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Warner Brothers v Nelson (injunction valid)

Agency
Agency relationship A15 through authority conferred by P16, is empowered to establish legal
relations on Ps behalf with T17. Resulting contract binds P to T, A is not bound.
P disclosed, A without authority.
A liable under breach of warranty of authority, can be avoided by ratification.
P disclosed, A with authority.
P liable.
P undisclosed, A with authority.
T decides who to be liable, cannot use sometimes if its unfair.
P undisclosed, A without authority.
A liable to T under breach of warranty of authority. P cannot ratify: Keighley v Durant
Creation of agency:
1. Actual authority
2. Ostensible authority
3. Ratification
4. Operation of law
1. Actual authority Granted through agency contract. Scope of authority granted is actual
authority. Can be express or implied. Implied actual is agents power to do all acts within
reasonable customs and usages of particular trade A is engaged in, or reasonably incidental
to his discharge of duties.
2. Ostensible authority A no actual authority but can still bind P. Only if prior to As act, P
held out to T that A has authority. Complete silence is not representation. From the perspective
of T.
Freeman v Buckhurst (apparent authority present) shows 4 conditions to establish ostensible
authority:
Representation that A has ostensible authority made to T.
T induced by representation to enter contract.
T does not know A lacks authority (restrictions placed b P on As authority has no effect
unless T knew)
Need to dispel ostensible authority: Summers v Soloman
3. Ratification P retrospectively confirms A s act, make it binding to T, implied through
use/consumption of item. Only when A has no authority. Contract deemed to be concluded
between P and T on date when A entered into the contract, not date of ratification. If A accepts
with subject to ratification, then cannot because is conditional acceptance.
Bolton Partners v Lambert (ratification successful, T cannot revoke)
4 conditions for ratification to be possible:
P must be disclosed or be ascertainable.
Keighley v Durant (P undisclosed, cannot ratify. No contract)
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A: agent
P: principal
17
T: third party
16

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P must exist.
Kelner v Baxer (P not in existence, cannot ratify so no contract)
P must ratify within reasonable time

P-T relationship fiduciary, characterized by requirement of good faith.

Duties of A:
Duty to follow instructions. If unclear, must clarify. If not, at risk of negligent resulting in
breach of agency contract.
Bertram v Godfray (A never follow, P claim damages)
Duty to use care and skill. Standard is reasonable person would expect from A.
Keppel v Wheeler (P claim damages, no care/skill)
Duty to avoid conflicts of interests. Cannot accept bribe, P can claim bribe from A.
Cannot make secret profit, even if acted in good faith and no damage to P. Cannot be
counterparty in transaction with P, in direct conflict to protect Ps interests.
Yuen Chow Hin v ERA (counterparty is As family/friend also cannot)
Duty to not delegate. Except for co-broking.
Rights of A:
Right to remuneration. Can claim fee only after fulfilling duties under agency contract.
Right to indemnity. Must have acted within scope of authority given.
A-T relationship general rule A is not liable as long as acted within scope of authority or has
been ratified. Unless:
A agrees to be liable.
Trade Usage, custom and trade usage established As contract entails personal liability.
Breach of warranty of authority. As representation taken as warranty, if broken there is
breach. T can claim damages from A.
Undisclosed P
Torts
Torts set of rules specifying certain actions as wrongs resulting in civil liability. Fraudulent
misrepresentation is under tort of deceit. Protects persons rights from being violated by
tortfeasors18 wrongful acts. Tort of negligence: tort + criminal offence.
Negligence doing something should not have done (malfeasance) or not doing something when
he should have (misfeasance).
3 elements that tort of negligence must have:
1. Duty of care
2. Breach of duty
3. Resulting damage from breach
1. Duty of care (DOC) Test for establishing DOC.
Spandeck:
Factual foreseeability (FF). Threshold requirement, if can show that D19 ought to have
known that claimant would suffer damage from Ds carelessness.
1st prong: legal proximity, referring to closeness and directness of relationship between
parties. Directness of action and injury can be linked especially for secondary victims.
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19

Tortfeasor: person who commits tort

D: defendant
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Neighbour principle
Donoghue v Steveson (did not take reasonable care to avoid acts which would be likely
to injure neighbour)
If proximity established, prima facie DOC exists.
Policy considerations. If impose DOC, detrimental to public interest or result in opening
of floodgates, then would negate the prima facie DOC.
2. Breach of duty when standard of care (SOC) not met, then breach.
Factors determining SOC:
Level of skill. level of skill, SOC.
Wells v Cooper (D not liable, met SOC)
Likelihood of injury. likelihood of injury, SOC.
Bolton v Stone (SOC met, no breach)
Seriousness of injury. serious injury, SOC.
Paris v Stepney (SOC not met, breach)
Cost of avoiding risk. cost, risk, take precaution. cost, risk, take precaution.
Latimer v AEC Ltd (take precaution, no breach)
Res Ipsa Loquitur breach so self-evident, the fact that event occurred itself is a breach. Used by
P20.
Scott v London (falling object)
3. Resulting damage plaintiff must show he suffered damage from breach.
Causation: But-for test must be fulfilled
Barnett v Chelsea (but-for test not satisfied, no resulting damage from act of negligence)
Break-in-the-chain
Mckew v Holland
Remoteness: reasonable foreseeability test whether a reasonable man would have foreseen
that kind of damage to injured party.
Wagon Mound (damage not reasonably foreseeable)
If damage suffered by P more severe than reasonably be foreseen, D still liable under egg-shell
skull rule.
Smith v Leech Brain & Co. (egg-shell-skull rule)
Defences for D must first establish the DOC, breach, resulting damage:
Volenti Non Fit Injuria: argue that P consented to risks involved. Complete defence.
Contributory Negligence: S3(1) CNPIA21, where Ps injury party contributed by Ps own
fault. Court apportion liability between parties, partial defence.
Tan Hun Hoe v Harte Denis Mathew
Disclaimer: can negate DOC but to be effective must fulfill UCTA.
Psychiatric Harm from secondary victims. Still need to consider Spandeck test. Must be
recognizable psychiatric harm not claims for grief/sorrow.
Need to fulfill all 3 conditions:
Circumstantial proximity: P have close ties of love and affection with victim (spouses,
parent-child).
20
21

P: plaintiff
CNPIA: Contributory Negligence and Personal Injuries Act
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 Physical proximity: time and space. P witnessed accident itself or the aftermath.
Causal proximity: P witnessed accident with own sight and hearing.
McLoughlin v OBrien
Pang Koi fa v Lim Djoe Phing
Ngiam Kong Seng v Lim Chiew Hock (no FF, no legal proximity, cannot recover damages)
Defamation statement published which tends to lower persons reputation. Can be written
(libel) or oral (slander).
Passing off person seeks to pass-off goods as those of another, riding on reputation of an
established company.
*Vicarious Liability (when there is employer-employee relationship) employer vicariously
liable for torts committed by employee if employee acting within scope of authority.
Koh Get Kee v Low Beng Hui (liable)
Samin v Government of Malaysia (not liable)

Answering questions
1. Identify the issue of the question.
2. State the relevant laws.
3. Apply the laws in the context of the question. (just throw everything)
4. Raise any alternatives
5. Come to a logical conclusion.

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