QUESTION 1

Avinash is a regular visitor to a local café that provides a self-service facility where customers have the option of selecting a drink or food item from a menu displayed on a touch screen located near the counter. To select a product, a customer only has to touch an image or icon showing the desired product, and then touch a virtual ‘OK' button to submit an order. The order is relayed to the café's front counter where the cashiers can view it on their own screens.

Customers using the touch screen are immediately issued with a printed ticket containing an order number and the price payable which they present at the front counter for the cashier to confirm. At that point, the customers pay for their purchases and await delivery.

This system is designed to save time during peak periods and is very popular. Some customers place their orders as takeaways, while others, like Avinash, prefer to be seated and consume them on the premises. These preferences are preselected by the customers when they use the touch screen.

When Avinash reached the cashier, he paid $4 for the coffee he had ordered and then took a seat waiting for it to be served at his table.

The next morning, Avinash returned and ordered his usual cappuccino- and for the first time, a Danish pastry- using the self- service facility. The total cost was $7.50 which he duly paid. As he sat in the café consuming his drink, he bit into the pastry and struck something hard, breaking a tooth. He examined the chewed remains and found a piece of metal that had somehow been lodged in the pastry.

Avinash alerted management to this incident and demanded compensation for his anticipated dental repair. The manager expressed regret and directed Avinash to the ticket he had received which on its reverse side, contained a clause stating:

This café accepts no responsibility or liability for any injury caused to customers by consumption of food or drink sold.

In response, Avinash exclaimed, ‘I'm a consumer and I have rights!'

Required

(a) Explain how the contracts Avinash made with the café were formed.

- You will need to address all the essential elements of a contract, as well as analyse the legal status of each step or event that led to the café supplying Avinash with its products. Refer to relevant case law. In this part, do not discuss the impact, if any, of consumer protection laws.

- You may, but are not obliged to use the IRAC format for this part, given that each step or event must be analysed separately.

(b) Explain whether the café is legally entitled to rely on the clause printed on the ticket to avoid liability in relation to Avinash's injury.

- For the purposes of this part you should consider both common law as well as legislation ( also confirming whether Avinash is a ‘consumer').

- Please use IRAC format for this part.

QUESTION 2

‘In contrast to express terms found in a contract, implied terms can arise in a variety of ways and are beneficial to at least one of the parties to the contract. Some contracts may contain both express and implied terms, but the ways in which these two types of terms operate are significantly different from one another'.

Required
Discuss this statement by reference to cases and legislation, providing examples of each.

- You need to justify your view as to whether these two types of terms are ‘significantly different from one another'.

- In addition, include as an example in your discussion, references to the types of terms indicated in the facts of question 1.

- The IRAC format does not apply to this question.