Aurelie vs The Doctor and The Hospital

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Question One: Advise Jane of her rights under contract law against Mark

Mark agreed to sell his bike to Jane and received payment for it but then decided to revoke the sale after accepting a higher offer from Stan. In determining whether Jane is entitled to any relief under contract law, it is imperative to consider the nature of the parties agreement and whether it gave rise to a contract and its accordant rights and responsibilities.

Issue: The determination of whether a valid contract was in existence between Jane and Mark and thus subject to breach.

Rule: Australian Law of Contract


 The discussion of this issue revolves around the principles of valid contracts. Under Australian contractual law, the formation of valid contracts is premised on the existence of five fundamental elements, which are agreement, capacity, consideration, certainty, and intention. The first of these elements is the presence of an agreement between the contracting parties and this is usually assessed via an examination of the rules underlying offer and acceptance (Carter 25). An offer entails a clear indication emanating from one of the parties (the offeror) expressing that they are willing to be bound by certain stated terms whereas acceptance entails communication to the offeror from the offeree declaring their unqualified assent of the stated terms (R v Clarke). In this case, Mark unconditionally accepts Jane’s $5,000 offer, which means that a valid contract is in existence.

Contracts can only be considered to be enforceable if there is consideration, which is a promise given by one of the parties in return for a promise received (Australian Woollen Mills Pty Ltd v The Commonwealth). Consideration can be in form of money or even a promise to do or not do something. In this case, Jane gives $5000 in exchange for Mark’s mountain bike, which is sufficient to satisfy this condition and thus establish a contract.

The third vital element, contractual capacity, posits that both parties must possess sufficient capacity to make legally binding contracts (Carter 25). The ordinary presumption is that all reasonable persons possess contractual capacity by default. Hence, in this case, because both Mark and Jane are of legal age and neither of them has a mental impairment, it is evident that contractual capacity is present and consequently the contract may be deemed valid.

Intention, the fourth element, dictates that the contracting parties must have been intending to create a legal obligation through their dealings (Carter 25). The ordinary approach to this requirement is that parties who enter into a commercial agreement are presumed to have intended to have legal consequences whereas those entering into domestic or social arrangements are assumed not to have been intending to create legal consequences. In this case, the parties are engaging in the sale of a bicycle, which makes it a commercial transaction and thus it may be presumed that Mark and Jane intended that their agreement would be legally consequential thus making it a valid contract.

The last key element that must be in existence for a contract to subsist is certainty and this means that it must be possible to sufficiently identify and enforce each party’s rights and obligations as per the contract (Carter 27). In this case, Jane pays cash for the bike and the expected terms would be that Mark, after completing the paint touch up and repair work would deliver the bike to her. Since these terms are relatively clear and unambiguous, a contract can be presumed to be in existence between the two individuals.

When all the elements necessary for a contract to be deemed as valid are in existence, a legally enforceable agreement may be presumed to be in force. Hence, if one party reneges on the terms agreed upon, then the other party may sue for breach of contract and be entitled to various remedies under the law. In this case, Mark’s acceptance of the cash payment from Jane meant that consideration had already moved from Jane to Mark thus making the agreement to sell the bike binding. As such, Jane is entitled to claim ownership and title to the bike because she has already fulfilled her obligations and Mark can therefore not purport to cancel the sale. Thus, one legal remedy available to Jane in this case would be to sue for performance whereby she could demand that the second contract be declared null and void and the bike be delivered to her possession.


When a contracting party purports to cancel a contract without fulfilling their obligations, the aggrieved party may be entitled to sue for damages. In this case, Jane’s payment of the $5000 was in expectation of receiving a bike and Mark’s decision to sell it to Stan instead means that it is impossible to fulfil the contract. Under the law, Jane may sue Mark for breach of contract and would be entitled to receive unliquidated damages and special damages and the court may also institute punitive damages.

Question Two: Discuss whether Aurelie has an action against either the Doctor or the Hospital

Issue: Whether Doctor Stephens as well as the Hospital in which the operation took place owed a duty of care to Aurelie

Rule: Negligence and more so reasonable foreseeability of an action by a person who owed a duty of care

Vulnerability or control test


The hospital and the Doctor both owe Aurelie a duty of care because a patient at the institution, it is reasonably foreseeable that the actions of the hospital staff may put her at risk of suffering some harm as was stipulated in Donoghue v. Stevenson. Furthermore, the doctor, in light of his possession of a higher degree of medical knowledge, is in a position of control over Aurelie, the patient who may be perceived as being vulnerable. Her vulnerability is particularly exacerbated by the fact that a relaxant drug had been administered on her before the surgery.

Issue: whether Dr. Stephens breached the duty of care owed to Aurelie

Rule: The Civil Liability Act of Queensland Sections 9(1) and 9(2)


According to Section 9(1) of the Civil Liability Act, a reasonable person who had sufficient experience in medical and surgical procedures as Dr. Stephen would either have known or ought to have been aware of the potential risks arising from the conduction of an operation on the wrong knee. Pursuant to Section 9(2) of the Act, there was a significant risk of complications arising regardless of whether the operation was performed on the right knee or not. Additionally, under Section 9(2), a reasonable person in Dr. Stephen’s position ought to have exercised more caution to prevent harm because

i) It was fairly probable that an operation on an uninjured knee would cause harm to Aurelie

ii) The likelihood of serious harm arising from a failure to identify the injured knee was significant

iii) By employing simple measures, the risk of occurrence of harm could have been averted. For example, Dr. Stephens knew that he was scheduled to operate on the right knee but he went ahead to conduct the operation on the uninjured knee without consulting his records, which was in violation of Section 9(2) (c) of the CLA.

Issue: Whether the breach of duty led to Aurelie suffering some harm

Rule: The Civil Liability Act 11 (1) and the causation test posited in Barnett v Chelsea as well as the remoteness test that is laid down in Commonwealth v McLean.


The harm suffered by Aurelie arose out of the Doctor’s negligence and not any other reason. This fact can be easily established because her uninjured knee was in good condition before the conduction of the operation and also because Dr. Stephens found that her left Anterior Cruciate Ligament was uninjured when he conducted the operation and it was only after this wrongful operation that Aurelie found herself unable to move her left leg. Thus, the probability as held under Barnett v Chelsea is that it was the surgery that occasioned the loss of movement. Besides this, because a reasonable individual could have foreseen that a surgery conducted on the wrong leg would be harmful, the link between Dr. Stephen’s negligence in conducting the operation on an uninjured knee and the actual harm suffered is not too remote.

Issue: Whether the Doctor can apply a defence of contributory negligence

Rule: The Civil Liability Act Section 23 as well as the rules for calculation of contributory negligence as held in Ingram v Britten


Potential contributory negligence could be said to have arisen from Aurelie’s indication that it was her left knee that was injured when she was asked about it by the nurse. However, an application of Section 9 demonstrates that this action alone could not have amounted to contributory negligence on Aurelie’s part. Whereas the risk of suffering an injury is both significant and foreseeable, a reasonable person, while under a “relaxant” drug could not be expected to employ injury-averting precautions. This means that the reasonable expectation on a person under medication such as Aurelie is less than that of a person in an unmedicated state. Hence, since Aurelie’s condition could not have allowed her to take measures to reduce the risk, the contributory negligence defence cannot stand.


The Hospital as Dr. Stephens’ employer and Dr. Stephens himself in his personal and professional capacity were both in breach of the duty of care owed to a patient under their care. Because of this breach of duty, Aurelie suffered an unnecessary injury to her previously healthy left knee. Thus, Aurelie may pursue an action under the law of tort against both the Hospital and Dr. Stephens citing negligence as the claim. Furthermore, Aurelie may also opt to sue the Hospital and the Doctor for damages to compensate the pain and suffering that arose out of suffering the injury. Because the unnecessarily inflicted injury will mean that Aurelie is unable to compete, she is also entitled to sue for damages resulting from loss of income.


Works Cited

Australian Woollen Mills Pty Ltd v The Commonwealth. No. HCA 20, (1954) 92 CLR 424. High Court. 1954.

Barnett v Chelsea & Kensington Hospital Management Committee. No. 2 WLR 422. Queen's Bench Division. 1968.

Carter, J. W. Contract Law in Australia. 7th ed., LexisNexis Butterworths, 2015.

Civil Liability Act 2003."Home - Queensland Legislation - Queensland Government, 1 July 2016,

Commonwealth v McLean. No. 41 NSWLR 389. Court of Appeal. 1996.

Donoghue v. Stevenson. No. AC 562. Judicial functions of the House of Lords. 1932.

Ingram v Britten. No. Aust Torts Rep 81-291. Queensland Supreme Court. 1994.

R v Clarke. No. HCA 47, (1927) 40 CLR 227. High Court. 1927.

December 12, 2023


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