Month: February 2016

Red Flags Part 2

I posted Red Flags Part 1 two years ago.

Here’s Part 2.

 

Red Flag: 

He asks you out for coffee. For the first date.

If a man is genuinely interested in you and wants to ask you out, he will ask you out to dinner. And if he drives, he’s gonna come pick you up. No excuses.

It is NOT your job to make it easy or convenient for him to date you. Girls always tend to be too nice and too considerate.

If somebody asks you out for coffee, (and he’s not even that cute), dont bother. It means he is a cheapskate who only wants to buy you a cup of coffee to see if he has any chance of banging you.

He intentionally wants to keep things casual so you two wont get too serious.

(What? You want to be molly-coddled? Wrong place, honey.)

The guy cant even commit to a proper dinner date. What makes you think he can commit to a relationship? #fuckyourcoffee

(A little caveat: Just because a man takes you to a nice fancy dinner and is very generous, does NOT necessarily mean he is serious about you. He could also be just trying to bang you, just that he’s got deeper pockets. Sorry.)

Btw, there is no such thing as “going Dutch” on dates. Okay? What is this nonsense and who started it?

The phrase was coined as an insult to the Dutch for being CHEAP.

(http://www.urbandictionary.com/define.php?term=go+Dutch)

If a man asks you out and expects you to pay or “go Dutch”, pay for your share and dont go out with him again.

This has absolutely nothing to do with money.

How he treats you, shows you how much he cares about you. A man who wants to “go Dutch” is NOT a gentleman and he cant be that into you.

Please dont get me wrong. I am not saying never ever reciprocate. But reciprocation can come much later, AFTER he’s already won your heart. And it doesnt always involve splitting the bill into half.

Only colleagues and acquaintances split the check. Heck, I dont even spilt the bill with my closer friends- sometimes I pay, sometimes they pay, who cares its just food!??

If a man asks you out, he shouldnt expect you to pay. Just like how I wouldnt expect my guests to chip in money for the food if I invite them to my house for dinner. This is only basic courtesy and I am appalled that people are actually debating over who should pay for dates.

Personally, I never offer to pay UNLESS I am not sure how I feel about the guy and Im kinda on the fence. If I offer to share the bill, and the guy happily accepts, then he has unknowingly failed the test and will never get a second date. :)

If this makes me a “gold digger”, so be it lah. You think I cant buy my own dinner? Lol.

I dont have a long list of criteria, but I expect to date a man who knows how to be a gentleman. Its really not that difficult.

Dont waste your precious time with fuck/ lame/ cheap boys. Our time is literally more valuable than men. Infinitely more valuable. They can knock women up till they’re 85 and taking their last breath, while your eggs are rotting away.

You’re welcome.

 

Red Flag: 

He has tons of girls in his Facebook/ Instagram, and they are all models, stewardesses, etc.

And he’s constantly liking/ commenting on their photos. (With emojis! Wow!)

Dude is a player.

His hobby is skirt-chasing. He will never be happy with whatever you have to offer (even if you can have sex 24/7 and you’re tight as a virgin), because the best girl is the next girl. And the next. Andddd the next. Some men will never be satisfied with just one woman and nothing will change that.

Unless….you are secretly a masochist and enjoy vying for his attention among all the hoes, then go for it.

 

Red Flag: 

He is extremely suave, is a smooth talker and knows all the right things to say.

This guy is a PRO.

He’s done this a million times, hence he is not nervous at all. If a guy is really into you, and isnt a player, he is going to be quite nervous.

Ive met a guy whose hands trembled throughout our date at TWG. (I seriously thought he had some kind of neurological disease.) Another one was so nervous he had gastritis and was trying not to throw up. Couldnt even take a tiny bite of the food I ordered.

Holy crap. I had no idea I was that intimidating.

 

Red Flag: 

He is very touchy. 

This, I have a big problem with.

I am not a prude. I have attended business functions & friendly gatherings where some guys (whom I do not know) somehow feel they can use photo-taking opportunities to place their sweaty paws on my shoulder or even my waist.

(I took an antibacterial wet wipe and wiped my shoulder after that. I dont know what he touched before he touched me- filthy door knobs, his penis, his butt hole, some chick’s vagina….??!)

If I am not your girl, dont fucking touch me. You may not rest your hand on ANY part of my body. What am I, a come-grope-me statue??

A man who gets very touchy with you right from the start is testing the boundaries, and trying his luck. If you’re okay with him touching your shoulders or waist, then maybe he might start moving his hand further down to stroke your ass or even “accidentally” brushing against your breasts. #FUCKOFF

Someone who respects you will not touch you, especially when you barely know each other.

The key word here is respect.

I’ve gone out on dates with some dudes who expect to take me home/ come up to my place after just ONE dinner, because they somehow feel entitled to a little something something after buying me food.

Do I even need to elaborate on how disgusting this is?

How about I buy YOU dinner and you come scrub my kitchen and bathroom for 2 hours, asswipe. 

Men who expect sexual favors in return for buying girls dinner, are very likely to be men who go to prostitutes. Where else would they get this kind of mindset from???

 


Well, its now 3.16am and I cant sleep, I slept all day thanks to this flu/ cold thing Im having. Bleh. I’ll add on more if I think of more!

 

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School life.

The one thing Ive learnt so far is that… Stupid questions deserve equally stupid answers. :D

 

Question 1

John had won an interview for a scholarship to Oxford. It was for a full scholarship worth $100,000 per year. On the day of the interview, he left his home at 7.30am, planning to be in good time for the interview which was at 9am. He looked at the display board on the MRT station and was told that his journey from Pasir Ris to Clementi was expected to take 45 minutes. John boarded the train at 7.42am.

Unfortunately, the train broke down. John was late for the interview and was not allowed into the interview room on account of his being late.

You are a top-notch commercial lawyer. John comes to you and says he wants to sue SMRT for causing him the chance at the scholarship. He asks you for a brief on his case and his prospects of success. Outline the matters that you wish to discuss with John. (20 marks approximately 1000 words)

Question 2

On that same train, Ellie was also delayed. However, before she boarded the train that day, she read a notice on the train platform which read:

“Passengers of SMRT agree that SMRT will not be liable for any loss or injury or damage suffered for any reason whatsoever during their rides with SMRT.”

Ellie is an insurance agent was on the way to meet a potentially lucrative client. As it turns out, Ellie was late and the client contacted another agent from whom she purchased her policies. Ellie later learns that the client had intended to buy a few multi-million dollar policies for her 9 illegitimate children. She lost out on more than $300,000 in commissions which she blames on the delay by SMRT.

Ellie asks you for a brief on her case and her prospects of success given the fact of the exemption clause. Outline the matters that you wish to discuss with Ellie. (10 marks approximately 500 words)

Question 3

You represented both John and Ellie in the above cases and managed to get each of them substantial damages from SMRT. Impressed by your brilliant legal mind, SMRT has decided to hire you on a project. They have asked you advice on how to protect themselves if they are sued in the future.

Give them 1 suggestion which you believe will be most useful to them, elaborating on your advice appropriately. However, do not give any advice on exemption clauses as they have already been advised by a Senior Counsel on that particular area of concern. (10 marks approximately 500 words)

 

Q1.

Issue:

Can John sue SMRT for causing him the chance at the scholarship?

Rules:

Breach of contract occurs when a contracting party fails to perform, without lawful excuse, a contractual obligation, assuming that a valid and legally binding contract exists. (Chiong, 2014)

Misrepresentation is a false statement of fact made by one party to another party before the conclusion of the contract and has the effect of inducing that party into the contract.

Tort of negligence covers both acts and omissions, i.e. a person could be negligent for doing something he should not have done, as well as for not doing something he should have.

There are three essentials that need to be proven for tort of negligence, namely a duty of care, breach of that duty, and damage (or loss) resulting from that breach.

Application:

John can either file a claim under breach of contract or in tort. However contract and tort are two very different and distinct issues, hence John will not be able to claim for both.

First, we need to examine if there was a contract between SMRT and John.

Also, we need to determine whether there was misrepresentation on SMRT’s part, as John was led to believe that the journey from Pasir Ris to Clementi was expected to take only 45 minutes, and he boarded the train based on the presumption that the train was going to take him to his destination on time.

Filing under breach of contract:

Unliquidated damages are damages in a breach of contract case that were not predetermined by the party. One of the aspects of this principle to consider is remoteness.

The defendant will only be held liable (in damages) for the plaintiff’s losses if they are generally foreseeable or if plaintiff tells the defendant about any special circumstances in advance.

In [Hadley v Baxendale (1854)], X delivered a broken shaft to Y, a carrier, to take to a manufacturer to copy it and make a new one. Y delayed the delivery of the shaft and X’s mill was idle for a long period of time resulting in loss of profits. However the court held that Y was not liable for loss of profits during the period of delay as X did not make it known to Y that delay would result in loss of profits.

In this case, John did not inform SMRT that time was of the essence, and he was required to be punctual for a very important interview. Even if so, SMRT is not obligated to go out of its way to fulfill a duty for one specific passenger, when there are hundreds of thousands of passengers daily. It is also unreasonable to expect or demand that the trains to never break down, despite running for long hours on a daily basis.

It can also be argued that John could have easily chosen to take a cab or any other form of private transportation instead, as he was the only person who was aware of his crucial need to be punctual that particular morning, hence he should be responsible for ensuring a mode of transportation which is fail-proof. Even then, private cars are not exempted from unfortunate circumstances such as breakdowns and traffic jams.

Filing under tort of negligence:

John may also file a claim under tort of negligence, provided that he is able to prove that SMRT did not do something they should have, i.e. not performing adequate and regular maintenance on the trains which resulted in the train breakdown.

But then, exactly how frequent would be considered adequate enough to ensure trains will never break down? Some can argue that monthly maintenance is adequate but others may think that it isn’t and insist that weekly maintenance is necessary. Even with regular maintenance, the occasional breakdown is to be expected.

It is not known where the train broke down- underground or on train tracks above ground. If the train had broken down in the underground tunnel, the passengers in the train are able to leave the train cars and walk along the side of the tracks to the next MRT station. As MRT stations are fairly close to each other, it would not have taken more than 20-30 minutes to walk to the next closest station.

A crucial point in this case and whether John will succeed in suing SMRT, depends on whether John was able to get out of the train and take an alternative mode of transportation. If he was able to remove himself from the broken down train and take an alternative mode of transportation, but failed to do so for whatever reasons, then he would have a very weak case as he had failed to mitigate the situation.

One of the three essentials to prove tort of negligence is damage- the plaintiff is required to show that he had suffered damage as a result of the defendant’s breach.

Under damage, there are two aspects which need to be considered- causation and remoteness. A test used to determine causation is the “but-for” test.

Would the result have occurred regardless of the act or omission of the defendant?

In this case, would John have gotten the scholarship if the train had not broken down, and he had made it in time for the interview?

Even if he had made it to the interview on time, he may not have gotten the scholarship. Since damage and causation cannot be determined, John cannot prove tort of negligence.

Conclusion:

Based on the facts presented, the prospects of John successfully suing SMRT are slim.

 

Q2

Issue:

Can Ellie sue SMRT successfully, given the fact of the exemption clause?

Is the exemption clause fair and/ or reasonable?

Rules:

Remoteness is once again an issue here. SMRT was not informed in advance of any negative consequences as a result of the train breakdown. Therefore, they cannot be held liable for the plaintiff’s losses.

It is also unlikely that Ellie can sue based on breach of contract, because SMRT did not make any explicit promise or guarantee to passengers to take them from a certain Point A to a certain Point B within a specific time frame.

Implied Terms are terms though not specifically mentioned in the contract, are understood to exist.

Unfair Contract Terms Act (Chapter 396)- “An Act to impose further limits on the extent to which civil liability for breach of contract, or for negligence or other breach of duty, can be avoided by means of contract terms and otherwise”.

Application:

Since the defendant will only be held liable for the plaintiff’s losses if the plaintiff tells the defendant about any special circumstances in advance, it would be unreasonable to expect SMRT to be liable for consequences which they were not even aware of in the first place.

Additionally, it would be unreasonable to expect or demand SMRT to cater to the specific requirements of each and every passenger, given that so many people take the train daily.

It is reasonable and acceptable to expect the train to take passengers from Point A to Point B safely, within a reasonable time frame (i.e. 1 hour- 1.5 hour). However SMRT cannot guarantee that all passengers will be able to arrive at their destinations by a certain time limit, certainly not at the fares paid per passenger.

Even if one were to pay $20,000 for a seat in First Class on a world-class airline, the airline would not be able to guarantee the passenger that the flight will take only a certain number of hours & minutes or that they would be no delays on the ground, due to all the variables, some of which would not be under their control, i.e. weather conditions and airport congestion.

“Passengers of SMRT agree that SMRT will not be liable for any loss or injury or damage suffered for any reason whatsoever during their rides with SMRT.”

 This exemption clause on the train platform is not enforceable and hence not valid, as Section 2 of the Unfair Contract Terms Act Chapter 396 states that:

  • A person cannot by reference to any contract term or to any notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.
  • In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness.
  • Where a contract term or notice purports to exclude or restrict liability for negligence, a person’s agreement to or awareness of it is not of itself to be taken as indicating his voluntary acceptance of any risk.

 

In simple terms, SMRT cannot restrict liability for death, injury, damage or loss arising from negligence on their part.

Section 11(1) of the Unfair Contract Terms Act (Chapter 396) states that in order to satisfy the reasonableness test, a contract term must been “a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made”.

This exemption clause was made one-sidedly by SMRT and under no contemplation of the passengers; hence it cannot be considered a fair or reasonable one.

One of the three essentials to prove tort of negligence is damage- the plaintiff is required to show that he had suffered damage as a result of the defendant’s breach. Ellie lost out on a $300,000 business deal because she was late for her meeting with her client, and her loss is quantifiable in monetary value.

Like in John’s case, the other issue to consider is causation.

Would Ellie have successfully gotten the business if the train had not broken down and she had managed to get to her meeting with her client on time? If so, then Ellie would have a better chance at filing a claim under tort of negligence.

Conclusion:

Based on the facts presented, the prospects of Ellie successfully suing SMRT are fairly slim but probably slightly better than John’s.

If she is able to prove negligence on SMRT’s part, which caused her recoverable damage, she may be able to file a claim under tort.

 

Q3

In order to prevent from getting sued in future, SMRT should be advised to put up notices that are displayed prominently, which could read as follows:

“While SMRT has made every effort to ensure that the information on train schedules and estimated timings of trips provided on this display to be accurate, the train schedules are subject to change from time to time. Timings listed are estimations.

 As such, SMRT does not accept any liability for any claim arising out of use of such information. All persons who use such information provided by SMRT do so entirely at their own risk.

 SMRT does not warrant or guarantee that its train system does not break down, as the train system may be disrupted from time to time due to technical faults, power failure, force majeure or other factors beyond SMRT’s control.”

This is a very limited exclusion clause that should not contravene the Unfair Contract Terms Act for the reasons that follow:

  1. It does not purport to restrict SMRT’s liability for death or personal injury resulting from negligence (which would contravene section 2(1) of the Unfair Contract Terms Act, Chapter 396);
  1. It is also not likely to contravene Section 2 (2) of the Unfair Contract Terms Act, Chapter 396 which says, “In the case of other loss or damage, a person cannot so exclude or restrict his liability for negligence except in so far as the term or notice satisfies the requirement of reasonableness” because it is likely to satisfy the “reasonableness test” in Section 11 of the Unfair Contract Terms Act.
  1. Section 11(1) of the Unfair Contract Terms Act, Chapter 396, says “In relation to a contract term, the requirement of reasonableness for the purposes of this Part and Section 3 of the Misrepresentation Act [Cap. 390] is that the term shall have been a fair and reasonable one to be included having regard to the circumstances which were, or ought reasonably to have been, known to or in the contemplation of the parties when the contract was made.”
  1. By stating clearly that the train system may be disrupted from time to time due to technical faults, power failure, force majeure or other factors beyond SMRT’s control, the suggested notice should be considered as a fair and reasonable contract term because a commuter would read the notice before deciding whether to board the train and therefore it would be within his/ her knowledge or contemplation that the trains may be delayed.