A Summary of Whitlock v Brew (1968) Case

Whitlock v Brew (1968) revolves around the issue of uncertainty and whether a clause of a contract that is uncertain can render the whole contract invalid if it cannot be severed from the contract.

Given below are the case details:

Case name & citation:	Whitlock v Brew [1968] HCA 71; (1968) 118 CLR 445
The concerned Court:	High Court of Australia
Decided on:	31 October 1968
The bench of judges:	McTiernan, Kitto, Taylor, Menzies and Owen JJ.
Area of law:	Contract of sale of land; Uncertainty

Facts of the case (Whitlock v Brew)

A contract for the sale of land was entered into between two parties. The contract involved a condition that on possession, the purchaser would grant a lease of a part of the land to an oil company (Shell) for the sale of petroleum products. The lease would be on “such reasonable terms as commonly govern such a lease.”

There was another term in the contract which provided that in the event of a dispute regarding the interpretation of this lease clause, the matter would be resolved through arbitration. The arbitrator will be appointed by the President of the Law Institute of Victoria.

Initial judgment

The contract was rescinded by the seller and the deposit was forfeited. The purchaser sued to recover the deposit but failed in the initial judgment. The decision was appealed to the Full Court of the Supreme Court of Victoria. The Full Court allowed the appeal.

They considered the condition void for uncertainty and not severable, making the entire contract unenforceable. They also found that there was no consideration for the deposit, so it could be recovered as money had and received.

The seller appealed to the High Court.

Judgment of the High Court in Whitlock v Brew

The majority of the High Court decided that the lease clause was too uncertain as it did not specify the term of the lease or the rent amount. This uncertainty made it impossible to determine the essential terms of the lease and it being a material and inseverable part of the contract of sale, no concluded contract existed between the parties. The contract was not enforceable.

As regards the arbitration provision, the Court decided that the interpretation and operation of the clause was such that it did not authorize an arbitrator to fix the lease’s term or rental amount.

There was no previous course of dealings between the parties that could be referred to neither was there any established set of standards in common use that could be referred to for fixing the term or rent of the lease. As a result, no underlying contract could be said to have effected and consequently, the arbitration clause was also of no effect.

Furthermore, the arbitration clause only allowed a third party (the arbitrator) to resolve any disputes between the parties regarding the terms commonly used in such leases, it did not empower him to fix the terms of the contract and remove uncertainty.

Conclusion

The High Court of Australia adopted a strict approach in Whitlock v Brew (1968). The contract was deemed too uncertain to enforce because it lacked essential details regarding the term of the lease or rental amount. The lease condition was void for uncertainty and inseverable from the main contract. Hence, there was no enforceable contract and the seller was not entitled to retain the deposit.

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Taylor v Johnson (1983): A Case Summary

Taylor v Johnson (1983) is a famous contract law case on the issue of unilateral mistake. The case involved an offer to purchase land and a dispute over its purchase price.

Given below are the case details:

Case name & citation:	Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422
The concerned Court:	High Court of Australia
Decided on:	23 February 1983
The bench of judges:	Mason A.C.J., Murphy, Deane and Dawson JJ.
Area of law:	Contract of sale of land; Unilateral mistake

Facts of the case (Taylor v Johnson)

Two parties, Johnson and Taylor, were involved in a land transaction. Johnson offered to sell Taylor (or his nominee) approximately ten acres of land for $15,000. Taylor exercised the option and a contract of sale was entered into. The purchase price was again stated as $15,000. Johnson later claimed that she believed that the consideration expressed in the documents was $15,000 per acre of land and not $15,000 for the entire ten-acre land.

Thus, a dispute arose between the two parties and Taylor sought to enforce the contract based on the price indicated in entirety.

Issue

Could the contract be invalidated based on Johnson’s mistaken belief regarding the price?

The case went through legal proceedings at multiple stages. Below are the details of what happened:

At trial (Taylor v Johnson)

The trial judge accepted that Johnson was mistaken about the purchase price of land, thinking it to be $15,000 per acre. However, the trial judge found that Taylor was not aware of this mistake. Hence, specific performance was ordered meaning that the contract should be enforced as written.

Johnson appealed to the New South Wales Court of Appeal.

Court of Appeal

The Court of Appeal found that Taylor was indeed aware of Johnson’s mistake and as a result, reversed the findings of the trial judge. The Court upheld Johnson’s appeal and set aside the contract of sale.

Dissatisfied, Taylor appealed to the High Court of Australia.

High Court’s decision in Taylor v Johnson

The High Court, by a majority decision, dismissed Taylor’s appeal.

The High Court found that Taylor’s knowledge of the mistake was a crucial factor and that the New South Wales Court of Appeal was open to reaching a different conclusion than that reached by the trial judge.

It was found that Taylor was aware that while agreeing to the sale of land for $15,000, Johnson was acting under a mistake as to its price or value.

Further, Taylor deliberately ensured that Johnson was not disabused of her mistake. He knew that the price was exceptionally favorable but said nothing and rather accepted the offer quickly.

Based on the facts and inferences, the Court found that there was a unilateral mistake related to a term of the contract, i.e., the purchase price. The majority held that the contract was nevertheless not void at common law but concluded that Johnson could set it aside on grounds of equity. That is, she was entitled to set aside the contract on equitable grounds.

Ratio decidendi

In situations where one party (Taylor) is aware that the other party (Johnson) has made a serious mistake regarding a fundamental term of the contract and takes deliberate actions to prevent the mistaken party from discovering the error until it’s too late, the contract can be declared void. This is because it goes against principles of good conscience for the party who knowingly ignores signs of the mistake and acts to prevent discovery of the error to enforce such a contract.

Quotes from the case

As per Mason A.C.J., Murphy, Deane JJ.

“It is that a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension.”

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Australian Safeway Stores v Zaluzna (1987): Case Summary

Case name & citation: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479

The concerned Court: High Court of Australia
Decided on: 10 March 1987
The bench of judges: Mason, Wilson, Brennan, Deane and Dawson JJ.
Area of law: Negligence; Duty of care, Foreseeability of risk; Liability of occupiers

This case is a famous case from Australia concerning issues of negligence and occupiers’ liability. It dealt with the question of whether a retailer may be held liable for damages if a customer is injured on his premises.

Case facts (Australian Safeway Stores v Zaluzna)

The plaintiff (Zaluzna) visited a supermarket (Safeway Stores) with the intention of buying some cheese. It was raining that day and as a result, the entrance of the shop had become wet and slippery. She slipped on the wet floor and sustained injuries.

Zaluzna brought legal action against the supermarket, alleging negligence on their part.

Issue

Did the supermarket owe a duty of care to persons entering the premises?

Judgment of the Court in Australian Safeway Stores Pty Ltd v Zaluzna

The Court concluded that Safeway Stores owed a duty of care to Zaluzna.

When businesses expect customers to come onto their premises or store and make purchases, the least that they can provide to them is a safe environment. They should exercise reasonable care to ensure the safety of invitees.

The Court’s decision emphasized that an occupier owes a general duty of care to ensure the safety of anyone who enters their premises, regardless of the person’s classification as an invitee, trespasser, or licensee. Based on the ordinary principles of negligence, the occupier is required to exercise reasonable care to prevent foreseeable harm to others.

Significance

It might be interesting to observe that occupiers’ liability used to be very complex and has evolved over time. The standard of care required of occupiers varied depending on the type of ‘visitor’ to the property. For example, the standard of care where trespassers or unlawful entrants were injured was not as demanding as the standard of care required for injury sustained by invitees or individuals invited onto the property. Special and complex rules of occupiers’ liability existed.

However, in Australian Safeway Stores Pty Ltd v Zaluzna (1987), the High Court made a significant legal decision. Instead of applying different standards of care to different classes of visitors, it was decided that ordinary principles of negligence should be imposed in occupiers’ liability cases. Even before this case, the High Court had, in a number of cases, shown an inclination towards incorporating the ordinary principles of negligence and replacing the old occupiers’ liability rules.

While giving its judgment in the Zaluzna case, the Court approved the statement of Deane J. in Hackshaw v Shaw (1984) 155 CLR 614:

“………, it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed.

All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship.

The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”

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Hackshaw v Shaw [1984]: A Case Summary

Case name & citation: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614

The concerned Court: High Court of Australia
Decided on: 11 December 1984
The bench of judges: Gibbs C.J., Murphy, Wilson, Deane and Dawson JJ.
Area of law: Negligence; Occupier’s liability; Duty of care; Trespass to land; Contributory negligence

What is the case about?

Hackshaw v Shaw [1984] is a tort law case that revolved around issues of negligence, trespass, and duty of care. It dealt with the question of whether an occupier of property can be held liable for causing an injury, though unknowingly, to a trespasser.

Facts of the case (Hackshaw v Shaw)

The defendant, Shaw, was the owner of a farm located at Korong Vale in Victoria. There was a petrol tank at the farm which was installed for refuelling any motor vehicles used on the farm. On many occasions, it was found that the petrol was stolen at night. Therefore, Shaw decided to lie in wait near the petrol tank to catch the thieves the next time.

One night, Cox, who was driving a stolen car, went to the defendant’s farm. He was accompanied by a sixteen-year-old girl, Hackshaw – the plaintiff. Cox turned off the headlights and began to steal petrol.

Shaw, not knowing that Hackshaw was in the car, fired two warning shots with his rifle at the vehicle. Unfortunately, Hackshaw was hit who was in the front seat of the car.

As a result, Hackshaw sued Shaw seeking compensation for her injuries.

Issues raised

The main issue that laid before the Court, in this case, was whether Shaw could be held liable for the injuries sustained by Hackshaw.

Did Shaw owe a duty of care to Hackshaw despite the fact that she trespassed on his land?

Was there a breach of duty when Shaw fired at the car?

Did Hackshaw contribute to her injuries by trespassing on the land?

Judgment of the Court in Hackshaw v Shaw

The Court decided that Shaw owed a duty of care to Hackshaw to avoid injuring her with his rifle. He should have reasonably foreseen the possibility of a passenger in the car and that firing the rifle at the car was an unreasonable and negligent action.

However, it was also found that since Hackshaw accompanied Cox in entering Shaw’s property without authorization, she had contributed to the injury.

Quotes from the case

Deane J. said as under:

“All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship.

Where the visitor is lawfully upon the land, the mere relationship between occupier on the one hand and invitee or licensee on the other will of itself suffice to give rise to a duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to him or her. When the visitor is on the land as a trespasser, the mere relationship of occupier and trespasser which the trespasser has imposed upon the occupier will not satisfy the requirement of proximity. Something more will be required.

The additional factor or combination of factors which may, as a matter of law, supply the requisite degree of proximity or give rise to a reasonably foreseeable risk of relevant injury are incapable of being exhaustively defined or identified. At the least they will include either knowledge of the actual or likely presence of a trespasser or reasonable foreseeability of a real risk of such presence.”

Refer full text of the case here: https://jade.io/article/67169

Conclusion

The given case clarifies that it is possible in legal contexts that an occupier of property can owe a duty of care to a trespasser. This duty arises if it can be established that it was reasonably foreseeable that the trespasser could be injured due to the negligent actions of the occupier.

Therefore, it can be said that in certain circumstances, a duty of care may be owed to individuals who commit the illegal act of trespass. Occupiers/owners may still have a duty to exercise reasonable care to prevent harm to trespassers if it is foreseeable that their actions could cause harm. Nevertheless, the existence and extent of duty shall depend on specific case facts, circumstances, legal standards, and precedents.

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A Summary of Rootes v Shelton (1967) Case

Rootes v Shelton (1967) is a tort law case that highlighted the extent to which participants in a sport or pastime may owe a duty towards each other. What constitutes an inherent risk in a sport for which there will be no liability? Whether a participant can be deemed to have voluntarily assumed a risk? The case deals with such matters. It concerns a water-skiing activity in the Macquarie River at Dubbo. Given below are its details:

Case name & citation:	Rootes v Shelton [1967] HCA 39; (1967) 116 CLR 383
The concerned Court:	High Court of Australia
Decided on:	18 October 1967
The bench of judges:	Barwick C.J., McTiernan, Kitto, Taylor and Owen JJ.
Area of law:	Negligence; Duty of care; Voluntary assumption of risk

Facts of the case (Rootes v Shelton)

In the given case, Rootes, an experienced water skier, was engaged in a challenging and dangerous water-skiing manoeuvre called “crossovers.” He, along with fellow water skiers, was being towed by a boat driven by the defendant, Shelton. While performing this activity, Rootes collided with a stationary boat that was in the water, which resulted in severe injuries.

He could not see the boat due to water spray in his eyes.

He filed a case of negligence against Shelton claiming that Shelton had failed to take proper care in controlling the boat and had not warned him of the presence of the stationary boat.

Issue

Was the defendant liable for breach of duty of care?

Judgment of the Court in Rootes v Shelton

The High Court decided in favor of the plaintiff. As a result, he recovered damages from the respondent, the driver of the towing boat. The Court took the following view.

When a participant engages in a sport or activity, they may be held to have accepted certain inherent risks associated with that activity. But this does not completely absolve one participant from a duty of care towards others. Whether or not such a duty exists and what is its extent – shall depend upon the circumstances of each individual case. Many factors come into play and the rules and regulations governing the sport or activity can be only one of such factors.

Further, the judges found that to acknowledge that the plaintiff voluntarily assumed the risk of colliding with an obstruction in the water is one thing. However, it is an entirely different matter to assert that the plaintiff voluntarily accepted the risk that the defendant (the boat driver) would negligently fail to warn him about the presence of such an obstruction or would fail to exercise proper care in steering the boat. The defendant, in the present case, owed a duty of care to the plaintiff and his failure to give sufficient warning of the stationary boat and to exercise due care in steering so as to avoid the collision could be regarded as a breach of that duty.

Thus, the defendant was held liable.

Takeaway

When there is an injury in a sports activity, it is crucial to determine whether other participants owe a duty of care to the injured party, whether there has been a breach of that duty, and whether the injured party has voluntarily assumed the risk of injury resulting from a breach of that duty.

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Romeo v Conservation Commission of the Northern Territory (1998)

Romeo v Conservation Commission of the Northern Territory (1998) is a widely recognized case from Australia. It concerns a negligence claim against the Conservation Commission for failing to put warning signs to warn people of the dangers of a cliff.

Given below are the case details and decision:

Case name & citation:	Romeo v Conservation Commission of the Northern Territory (1998) 151 ALR 263; (1998) 192 CLR 431
Court:	High Court of Australia
Decided on:	02 February 1998
The bench of judges:	Brennan CJ, Toohey, Gaudron, McHugh, Gummow, Kirby and Hayne JJ
Area of law:	Foreseeability of risk; duty of care; negligence; obvious dangers; nature and cost of precautions

Facts of the case (Romeo v Conservation Commission of the Northern Territory)

The plaintiff, Nadia Romeo, a sixteen-year-old girl met with an accident on a clear, dark night in April 1987 in the Casuarina Coastal Reserve near Darwin. The Reserve was a large natural area open for public recreation, managed by the respondent Conservation Commission.

She and her friend had consumed alcohol and were sitting on a low log fence near the Dripstone Cliffs car park, which was situated on a cliff-top overlooking Casuarina Beach. At some point, both girls fell over the edge of the cliff onto the beach below. The accident resulted in injuries, particularly for Nadia who became paraplegic. This kind of accident had never happened at the Reserve before.

The plaintiff filed a lawsuit against the Commission alleging negligence. She contended that the respondent should have installed adequate lighting, given warnings about the cliff’s presence, or erected a fence or barrier at the cliff’s edge.

Issue

Was the Commission liable for negligence?

Judgment of the Court in Romeo v Conservation Commission

The plaintiff’s claim was dismissed both at trial and on appeal to the Northern Territory Court of Appeal. It was agreed that the Commission was not liable.

The case was then heard in the High Court.

The majority held that the Conservation Commission, by virtue of its powers vested upon it as a public authority, had a duty of care towards the visitors of the natural reserve. It could reasonably foresee that a visitor might occasionally fall off the cliff. However, the Court found that there was no breach of such duty in failing to erect barriers at the cliff’s edge, provide adequate lighting, or warn about the dangers of the cliff.

The Conservation Commission was not obligated to guarantee that there would be no accidents; it just had to take reasonable steps. Even though the risk of someone falling from the cliff was foreseeable, it existed only when people ignored the obvious danger, making accidents highly unlikely. The cliff danger was apparent and preventable through reasonable care by the visitors themselves. Competent individuals should take reasonable care for their own safety, at least with regard to obvious risks.

Further, the judges held that it would be impractical to fence off the specific cliff as it would then necessitate fencing all similar cliffs in the Northern Territory under the Commission’s control to prevent similar risks. This may prove to be unreasonably burdensome.

When the cost of preventive measures is very high for a risk that is improbable, the defendant is less likely to be found liable for negligence. The Court refused to establish negligence on the basis that the risk was obvious and small and that the required precautions to avoid the risk would have placed undue pressure on the limited resources of public authorities. These factors outweighed the seriousness of the harm of someone falling off the cliff and the defendant was justified to disregard the foreseeable risk of harm to someone in the plaintiff’s situation.

Quotes from the case

Kirby J said:

“Where a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just …”

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Adeels Palace Pty Ltd v Moubarak [2009]: A Case Summary

Adeels Palace Pty Ltd v Moubarak [2009] is a tort law case involving a physical dispute at a restaurant whereby the plaintiffs got injured. Doubts were raised over the adequacy of security deployed at the restaurant.

Given below are the case facts and decision:

Case name & citation:	Adeels Palace Pty Ltd v Moubarak, Adeels Palace Pty Ltd v Bou Najem [2009] HCA 48; (2009) 239 CLR 420; (2009) 84 ALJR 19
Court:	High Court of Australia
Decided on:	10 November 2009
The bench of judges:	French CJ, Gummow, Hayne, Heydon and Crennan JJ
Area of law:	Negligence; duty of care; the ‘but for’ test; causation

Facts of the case (Adeels Palace Pty Ltd v Moubarak)

The case concerns an incident that occurred on New Year’s Day in 2003 at Adeels Palace Restaurant in the Sydney suburb of Punchbowl. A dispute arose on the dance floor when a female patron accused another of brushing her hand with a lighted cigarette. The fight escalated very soon with friends, relatives, and other patrons joining in. One man who was struck in the face during the altercation left the restaurant and returned with a gun shortly thereafter. He shot two other patrons (Bou Najem and Moubarak). Moubarak was the one with whom he had got into the physical altercation earlier and who had struck him.

Both Bou Najem and Moubarak sued Adeels Palace alleging that the injuries they sustained were a result of the restaurant’s failure to provide adequate security to them during the New Year’s Eve function.

Issue

Was the restaurant’s lack of security an act of negligence?

Case Hearing

The case was first heard in the NSW District Court and both the plaintiffs were successful. They also succeeded before the NSW Court of Appeal. However, the High Court reversed the decision of both the courts and allowed Adeels Palace’s appeal.

Judgment of the High Court in Adeels Palace Pty Ltd v Moubarak

The High Court decided that the issue in the case had to be determined by referring to the relevant provisions of the Liquor Act 1982 (NSW) and the Civil Liability Act 2002 (NSW).

It said that in accordance with the responsibilities laid under the Liquor Act 1982 (NSW) not to allow indecent, violent, or quarrelsome behavior on licensed premises and to remove individuals who engaged in such behavior, Adeels Palace owed a duty of care to all its patrons including Bou Najem and Moubarak. There was a duty to exercise reasonable care in preventing injuries that could result from violent, indecent, or disorderly behavior of other persons.

However, the High Court found that it was not necessary to establish whether there was a breach of this duty or not.

This is so because according to Section 5D of the Civil Liability Act, it was required for Bou Najem and Moubarak to demonstrate that the restaurant’s negligence in providing them with adequate security was a necessary cause for the injuries suffered by them. And, the evidence presented did not establish that the provision of greater security (to the level to which Bou Najem and Moubarak had argued that it should have been provided) would have prevented or deterred the gunman from re-entering the restaurant. The evidence only showed that if there had been more security in the restaurant on New Year’s Eve, it might have prevented the damage caused by the gunman. But it did not show, on the balance of probabilities, that greater security would have prevented the injuries caused. Thus, the ‘but for’ test of causation was not satisfied.

Hence, the High Court decided in favor of Adeels Palace and set aside the orders of both the Court of Appeal and the District Court.

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A Quick Summary of Doubleday v Kelly [2005]

Doubleday v Kelly [2005] is a tort law case concerning the foreseeability of risk and duty of care.

Given below are the case details:

Case name & citation:	Doubleday v Kelly [2005] NSWCA 151
Jurisdiction:	The New South Wales Court of Appeal
The learned judge:	Bryson JA
Area of law:	Foreseeability of risk; duty of care; negligence

Facts of the case (Doubleday v Kelly)

The plaintiff, a seven-year-old girl, was staying at the defendant’s house. While staying there, she got injured when she attempted to roller skate on a trampoline.

Damages were claimed from the defendant for breach of duty of care.

In the District Court, the case was heard in favor of the plaintiff and was then appealed to the Court of Appeal.

Issue

The question that arose was whether the defendant owed a duty of care towards the plaintiff and whether that duty was breached when the plaintiff was allowed to use the trampoline unsupervised.

Was the risk of injury foreseeable?

Arguments

The defendant argued that it was not foreseeable that the girl would attempt to roller skate on the trampoline. Also, the children had been warned not to go on it unsupervised.

Judgment of the Court of Appeal

The Court emphasized that to assess whether a risk is foreseeable, consideration must be given to foresight in more general terms of risk of injury rather than the actual events as they occur. Therefore, the specific events that led to the plaintiff’s injury (roller skating on a trampoline) were not the primary thing to consider for analyzing foreseeability. Instead, the Court considered whether it was foreseeable in more general terms that a child might use the trampoline in an incompetent manner and thereby risk injury.

The Court found that it was foreseeable that a child might use the trampoline inappropriately and injure themselves if not supervised. This was the key point in the case because it established that the defendant had a duty of care towards the plaintiff.

Further, it was held that merely giving a warning against using the trampoline without supervision did not adequately discharge the duty. The Court stated that turning the trampoline over so that the jumping surface was on the ground was rather an effective way of preventing children from using it without supervision.

Conclusion (Doubleday v Kelly)

While it may not have been specifically foreseeable that the child would attempt to roller skate on the trampoline, it was reasonably foreseeable that children might use the trampoline unsupervised, which inherently involved a risk of injury. Thus, the risk of injury was generally foreseeable, and a reasonable person would have taken steps to avoid this risk.

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A Quick Summary of Cowell v Rosehill Racecourse Co Ltd [1937]

Cowell v Rosehill Racecourse Co Ltd [1937] is a tort law case from Australia differentiating between contractual rights and property rights.

Case name & citation: Cowell v Rosehill Racecourse Co Ltd [1937] HCA 17; (1937) 56 CLR 605; [1937] ALR 273

The concerned Court: High Court of Australia
Decided on: 22 April 1937
The bench of judges: (Latham C.J., Starke, Dixon and McTiernan JJ., Evatt J. dissenting)
Area of law: Trespass to land; Assault

What is the case about?

The case is about the revocability of licenses and whether someone buying a ticket for admission to a public entertainment event has a property interest or only a contractual right.

Facts of the case (Cowell v Rosehill Racecourse Co Ltd)

The plaintiff had paid for admission to the defendant’s racecourse but was later asked to leave on account of inappropriate behavior. Upon refusal by him to leave, he was ejected by the defendant’s servants without undue force (i.e., using no more force than was necessary).

The plaintiff filed a lawsuit seeking damages for assault. The defendant’s defense was that they had revoked the plaintiff’s license to be on the land, making him a trespasser and justifying his ejection.

Issue

Whether the plaintiff’s license to be on the racecourse a contractual right or a property one?

Could the defendant rely on the license’s revocation as a defense against the alleged assault?

Judgement of the Court in Cowell v Rosehill Racecourse

The High Court emphasized that the right to see a spectacle is not a proprietary right but a contractual one, and therefore, it cannot make the license irrevocable. It affirmed that a license is generally revocable, whether under seal or not, unless it is a license coupled with a grant of property.

Upholding the decision of the Supreme Court of New South Wales, the Court clarified that purchasing a ticket for admission to a public entertainment event grants the holder a contractual right, not a proprietary right. Further, a license remains revocable at law, even if there is an express contract not to revoke it. Revoking a license exposes the licensor to a breach of contract claim but does not affect the license’s revocability. Despite the breach of contract and the revocation of the license, the licensor is not prevented from using the termination of the license as a defense in a tort action (for example, a claim of assault in this context). The licensor can argue that the revocation of the license justified their actions, such as ejecting the licensee from a property or using reasonable force to expel trespassers.

The Court also concluded that equity would not decree specific performance or grant an unconditional injunction to prevent the revocation of a license in cases like these. It affirmed that the plaintiff had no equitable claim against the revocation of the license and was only entitled to remedies for a breach of contract.

Due to these points, the plaintiff could not be successful.

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A Case Summary of Zanker v Vartzokas (1988)

Case name & citation: Zanker v Vartzokas (1988) 34 A Crim R 11

Zanker v Vartzokas (1988) is a legal case that involved a potentially dangerous situation where a woman felt threatened by a man’s words and actions. The case raises questions about assault and particularly the relevance of the imminence of harm. How imminent does a threat of violence need to be in order to constitute assault?

Below are the case facts and details:

Facts of the case (Zanker v Vartzokas)

A woman accepted a ride from a young man. While they were in the moving car, the man made a sexual proposition to the woman and offered her money, which she rejected. She demanded him to stop the car so she could get out. But the situation escalated when the man accelerated the car and said to the woman, “I’m going to take you to my mate’s house. He will really fix you up.”

The woman was terrified of the threat and jumped out of the moving vehicle which was going at around 60 kilometres per hour. As a result, she sustained injuries. The male was eventually accused and convicted of assault.

Issue that arose

To be convicted of assault, it must be proved that the accused has caused the victim to fear or apprehend immediate and unlawful violence.

The Court agreed that the act of accelerating the car and issuing a threat of taking her to his mate’s house was considered a direct threat to her safety and well-being. Was this threat, however, immediate enough to constitute an assault?

The case highlights this point.

Judgment of the Court in Zanker v Vartzokas

The Court’s decision emphasized that the threat made by the man, although concerning violence that would occur in the future at the end of the woman’s supposed (unlawful) imprisonment, was still considered imminent or immediate in nature. This is so because it caused the plaintiff to reasonably believe that this violence would occur as soon as her unlawful imprisonment ended (i.e., as soon as the car reached the destination).

In other words, the threat conveyed a clear and immediate danger, even though the actual harm was set to happen in the future, right after the woman’s “imprisonment” ended. The threat placed a fear of relatively immediate violence in the woman’s mind and it continued to have effect as the vehicle travelled toward the destination, leaving the plaintiff at the defendant’s mercy. The circumstances were such that led the plaintiff to jump.

It was, therefore, effectively found imminent to be constituted assault.

Conclusion

The Court’s ruling clarified that it was not necessary for the injury or harm to be physically immediate; instead, it sufficed that the threat of harm had an immediate impact on the victim’s state of mind and induced fear or apprehension.

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