Sam is a LAW 960 student who drives a Nissan car. One of his classmates, Lulu, likes Sam's car very much

and offered to purchase Sam's car for $20,000. Sam was reluctant to sell the car to Lulu, but still, he replied

nicely in this way: 'please allow me to think about this over this weekend and I will let you know next Monday'.

Sam told Lulu on Monday that 'if you can pay me $30,000, you will have my car. I will give you five days to

consider'.

On Wednesday night, however, Sam texted Lulu, saying: 'I am sorry. I changed my mind. I don't want to sell

my car'. Lulu was upset and immediately called Sam, saying: 'you've promised me five days to consider, so

you cannot change your mind like this. I will pay you $30,000 tomorrow and your car will be mine then'. Sam

did not reply. The next day, Lulu turned up at Sam's place early in the morning with $30,000 cash and

requested to drive Sam's car away. Sam told her: 'we do not have a contract. I won't accept your money and

you cannot have my car'. Lulu left angrily, saying, 'Sam, you broke our contract and I will sue you!'

Sam was later off to join a couple of LAW 960 classmates in a caf to prepare for the final exam together.

They were going to review all the topics in the subject together before the exam the following week. (They

knew that when they did the exam they were prohibited from contacting each other). For the first time, Sam

parked his car in a car park owned and operated by 'Secure Parking Ltd'. Outside the car park was a large

sign where it was written:

"Take and read the ticket from machine. Pay when leaving. We accept no responsibility for

loss or damages".

Sam did not pay attention to the sign. As he approached the automatic gate, a machine issued him a ticket

with the following words printed on it:

"CONDITIONS OF PARKING:

It is a condition of the issue of this ticket Secure Parking Ltd and the car park proprietors

do not accept responsibility for the vehicles in the parking area."

That day, on his return to the car park, Sam found that there were a couple of big dents and deep scratches

on his car. He could also hear a strange noise at the front of the car while driving. Sam approached the Secure

Parking Ltd. The parking company referred to the sign outside the car park and to the clause on the ticket and

claimed that the Secure Parking Ltd would not be responsible for any loss or damage suffered by Sam.

The next day, Sam drove the damaged car to an automotive workshop called 'Simply the Best Auto'. The

workshop was run by a mechanic called Yuro who had recently suffered a shoulder injury and could no longer

work effectively in his role. Yuro employed Qiang, a young man who was nearing the end of his apprenticeship.

When they checked Sam's car, they determined that apart from the dents and scratches, there was also a

problem with the steering box under the car. Qiang removed the steering box and found the components were

severely damaged. Qiang showed Yuro, and Yuro told Qiang to order a genuine steering box from Nissan.

Yuro also told Qiang that he should make the necessary replacement and finalise the repair (including fixing

the dents and scratches) and return the car, and invoice the customer himself because Yuro had to go for a

shoulder surgery and would be away for one week.

While Yuro was away, Qiang could not be bothered going through all the trouble to get a genuine part from

Nissan. He thought that it would be quicker if he ordered a cheap non-Nissan part from an online store. It is

widely known by qualified mechanics that cheap parts sourced on the internet are liable to failure. Upon

completing the work, Qiang returned the car to Sam.

2020 10 15 LAW 960 Wollongong & Sydney CBD campuses Tri3 2020 REMOTE Page 4 of 4

Within two days of Sam driving the car, the steering box components became loose and began to fail. Sam

was travelling in excess of 120km per hour in an 80km per hour speed limit zone when the steering box failed

completely, and he lost control of the car, crashing into a brick fence wall. The damage to the car and the brick

wall was extensive, and Sam suffered injuries requiring extensive rehabilitation. The medical expenses were

significant.

Your task (total 55 marks)

a) Advise Lulu whether she had a contract with Sam on the sale of the car. (8 marks)

b) Advise Sam whether the exclusion clause will prevent him from claiming damages from Secure

Parking Ltd under contract law. Would your answer be different if Sam had been a regular customer

of the Secure Parking Ltd? (22 marks)

c) Advise Simply the Best Auto as to their potential liability in negligence. In your answer you should

consider:

all of the elements of negligence; and

the possibility of defence(s) to negligence.

Refer to case law and/or legislation to support your answers