Written Assignment: Whether Darrel Is Able to Sue Adrian for His Negligent Installation

Assignment Question

(a)(i)

The issue in this case would be whether Darrel is able to sue Adrian for his negligent installation. The relevant points would be whether there is a contract and if there is any breach of the term of the contract. For Darrel to be able to sue Adrian, he would need to establish that there was a legally binding contract between the parties and as a result of the breach of the contractual terms, he suffered personal injury. To show that there was a legally binding contract, the elements of the contract (i.e. offer, acceptance, consideration and intention to create legal relations) must be present.

Offer was made when Darrel called Adrian and asked if he installed bathroom water heater and the acceptance was made when Adrian assured. Consideration would be the price of $200 and there is an intention to create legal relations as this was a commercial situation. This shows that there was a legally binding contract. There was an oral contract and even though nothing was discussed as to the manner in which the heater should be installed, it can be implied that Adrian would install the heater with due care and diligence. Thus Adrian’s act of being negligent in water-proofing the wiring would be a breach of the implied term.Since the breach of the implied term does not deprive Darrel of substantially the whole benefit which he should receive, thus the implied term would be treated as a warranty and would be able to claim damages.

Adrian might have a defense if he is able to prove that Darrel had not used the water heater properly resulting in Darrel having an electric shock.

In conclusion, the court might be more in favour for Darrel as there is a legally binding contract and there is a breach of the terms of the contract, thus Darrel would most probably be able to sue Adrian for his negligent installation and claim damages in respect of his hospital bills.

 (ii)

Adrian could have included an exemption clause in his contract with Darrel that would have enabled him to avoid the liability. For a party who intends to rely on an exemption clause would need to establish that the clause was incorporated into the contract and for the exemption clause to be effective, the notice must be given on or before the contract was made and reasonable steps should be taken to bring the notice to the attention of the injured party. Secondly, the clause would need to be construed. Thirdly, there is a need to take into account if there are any unusual factors that would limit the effectiveness of the clause. Lastly, the clause would need to comply with the Unfair Contract Terms Act (UCTA). In this case, the negligence act has resulted in personal injury. Under section 2(1) of the UCTA, the liability of personal injury or death cannot be excluded at all. Therefore even if Adrian had included the exemption clause, he would not be able to rely on it to avoid his liability.

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