Question Greta Law
Injury resulting from a gift and lack of contractual consideration
Tom arranged his florists to prepare and deliver a bouquet of flowers as a gift and a way of thanks for Becky, but a large bee trapped in the flowers stings her causing her to go into an anaphylactic shock when she begins to arrange them into water. As a consequence, she is hospitalised and cannot attend a photoshoot for a magazine for which she was to be paid $20,000. Why the fact that the bouquet was provided to Becky as a gift means that she cannot sue him for the loss of the $20,000 fee for the missed photo shoot? Is it related to lack of consideration?
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Answer Internal Staff
Firstly, the ability to sue comes as a form of remedy after breaking a contract. In order for there to be a contract, there must be offer + acceptance + consideration (McKendrick, 2015). A gift is not a contract because it lacks consideration (nothing has been paid for it). Therefore, there cannot be a remedy when a contract has not been fully established. In contract law it is unlikely that Becky will be able to recover for the $20000 she lost as a result of being stung.
Tom has a contract with the florists, however the delivery of flowers has been fulfilled. Becky can try to recover in the law of Tort. However, it is not clear what the court will find due to reasonable foreseeability, whether flowers containing a bee can be deemed to be a defected product (where Donoghue v Stevenson  UKHL 100 could be invoked) and remoteness of damage. This is because the court will take into account the foreseeability of the kind of damage caused, the foreseeability of the way the damage was caused, and the foreseeability of the extent of the damage (Giliker, 2014). When taking into account that the flowers could have left the florists without the bee, and that the bee could have been trapped on the way or even in Becky’s house; that even if there was a bee in the flowers this does not always result in stinging; and that even if a person is stung it does not always lead to an anaphylactic shock, the court may not find in favour of Becky.
ReferencesE McKendrick, (2015), Contract Law, 11th ed. Palgrave Law Masters
P Giliker (2014), Tort, 5th Edition, Sweet & Maxwell
Donoghue v Stevenson  UKHL 100