High Court

Bridget Tansey
											(Plaintiff)

v.

College of Occupational Therapists Limited
											(Defendant)

No. 3591 of 1983
[27th of August, 1986]

Status: Reported at [1995] 2 ILRM 601

MURPHY J 
	In this case the plaintiff claims that the defendants are in breach of a contract made between them and her in or about the month of October 1978 under which the defendants, its servants or agents agreed to admit the plaintiff as a student to a diploma course provided by the defendants. It is the contention of the plaintiff that the contract relied upon provided that she and other students taking the course would be allowed two retakes or resits of every part of every examination in which they were unsuccessful and that the defendants in breach of that contract refused to permit her a second retake of psychiatry which she sat as part of her second year course in 1980 and repeated (together with her final examination) in the summer of 1981.

Having regard to the view which I take on some of the issues of fact and law, it would not be necessary for the purposes of my judgment to make decisions on others of them but having regard to the possibility that one of the parties may wish to take the case further it is perhaps desirable that I should deal as fully as possible with all of the issues of fact which were canvassed before me. This is of particular importance in the present case as there was no official stenographer available to record the evidence of the witnesses.

The history of this matter begins some 10 years ago when the plaintiff, Bridget Tansey (she subsequently married but prefers to use her maiden name) sat for and subsequently repeated her Leaving Certificate examination in which she ultimately secured a pass. It was her ambition to study at St Joseph’s College, Rochestown Avenue, Dun Laoghaire and to take the examinations offered by the defendants, then known as the British Association of Occupational Therapists, leading to the diploma awarded by it. Ms Tansey applied on three occasions for a place in St Joseph’s. This was some measure of the interest and enthusiasm for her chosen vocation which indeed were factors which may have been relevant in ultimately securing her admission as she did not have the two honours subjects which were, at the date of her admission the minimum requirements for entrance to St Joseph’ s.

It was in August 1978 that the plaintiff was granted a place in St Joseph’s and it was in October of that year that her three year course commenced. St Joseph’s is a training and teaching establishment funded by the National Rehabilitation Board. It provides a course of tuition and training designed to prepare students for the defendants’ diploma examinations. St Joseph’s is a college officially recognised by the defendants but wholly independent of it. No evidence was led as to the precise relationship between St Joseph’s and the defendants. It is not clear as to whether any contract exists governing the relationship between these two institutions. However, it is clear that St Joseph’s is a recognised college — and indeed the only recognised college in Ireland, in the sense that it is so described in the literature of the defendants, and courses provided in St Joseph’s are accepted as qualifying students to sit for the defendants’ examinations. The defendants themselves do not give tuition. Their function is to set and correct examinations and make regulations concerning them. The diploma which they grant carries a statutory recognition in England and presumably it is recognised and respected elsewhere. For its part, St Joseph’s was, as I say, an autonomous body acting on its own authority in relation to the acceptance and indeed expulsion of students presenting themselves for the tuition and training provided at their college.

The details of the examinations provided by the defendants and leading to the diploma in occupational therapy are set out in a manual published by them. In general terms the manual calls for a three year training course and three examinations known as Group 1, Group 2 and Group 3 examinations governing a variety of medical subjects. The manual of the defendants (as revised in March 1977) contains at p. 30 thereof the following provision:

Retakes:
It is the normal policy of the association to allow two retakes of each part of the examination. Any further retakes can only be granted by the board of studies of the association and will not be granted without a full consideration of all the attendant circumstances. A student who has failed in one or both subjects of Group 1 will not be permitted to enter for Group 3.

In April 1978 the relevant committee of the defendants decided to change the regulation aforesaid and provided that thenceforward students should have the right to one retake only and that any retake thereafter would be at the discretion of the defendants. It is clear beyond debate that this decision was taken and the regulation altered before the plaintiff was accepted as a student of St Joseph’s. This was the evidence of Mrs. Phillips who, as Ms Ridge, was a member of the committee by whom the change was made and subsequently chairperson of sub-committee ‘A’ which ruled on applications made to the defendants in relation to the plaintiff’s right to retake for the second time a subject which she had failed. The evidence of Mrs. Phillips with regard to the change in the rules made in April 1978 was corroborated in every detail by the surrounding circumstances and could not be and was not challenged in any way by the plaintiff. There is no doubt but that the regulation quoted above from p. 30 of the 1977 edition of the defendants’ manual was amended in April 1978 so as to reduce the automatic right to retake examinations from two retakes to one retake. Furthermore, I accept that it was the view of Mrs. Phillips and the relevant committee of the defendants that this amendment would not take effect in respect of students who had commenced their training leading to the diploma. It would apply only to students commencing their studies for that course in October 1978. As I understand it the committee believed that any other procedure would be unfair to existing students.

It was the belief of Mrs. Phillips that the secretariat in the defendants’ organisation prepared an addendum or erratum slip which, as a matter of practice, would have been included with any copies of the manual dispatched by the defendants subsequent to April 1978. However, Mrs. Phillips was not herself in a position to say whether this was done or whether indeed any copies of the manual were subsequently dispatched by the defendants to St Joseph’s. However, what Mrs. Phillips could say and what Ms Mayers, the then assistant principal of St Joseph’s confirmed in unequivocal terms was that a circular (the 1978 circular) was dispatched by the defendants on 11 April 1978 and received by St Joseph’s on I May 1978 explaining that students entering training in September 1978 would have the opportunity of only one automatic retake of examinations and that a second retake of any subject would require special application by the principal on the students’ behalf.

The story is then taken up by Ms Mayers who gave evidence of discussing this circular with the then principal of St Joseph’s, Ms Fleming, and of the important fact that she, Ms Mayers, placed that circular or a copy of it on the notice board in the c9rridor and on the notice board in the library in St Joseph’s and that the circular remained on those notice boards throughout 1978 and 1979. It is in this context that the first major conflict of fact arises. The plaintiff herself and five of her classmates who were called on her behalf to give evidence swore that they never saw the 1978 circular on any notice board at any time. Furthermore, another classmate of the plaintiff’s called to give material evidence on behalf of the defendants, Ms Rajaratmun swore that she had not seen this notice either.

There was in fact a second circular in relation to the same topic dispatched by the defendants and received by the principal of St Joseph’s in the month of March 1980 (the 1980 circular). Again, Ms Mayers swore positively and convincingly that this circular was posted on the college notice board in March 1980 and remained there for a considerable time thereafter. Indeed, reference was made to numerous holes in the circular which was put in evidence and these were explained as being the drawing-pin marks which had attached the circular to the notice board and which were made as the circular was moved from time to time around the board as occasion required. Again, six of the former students swore that they never saw the 1980 circular on the notice board even though they did have occasion to look at the notice board from time to time. In these circumstances the question may be asked indeed the question was asked —how could the 1978 circular and the 1980 circular be on the notice boards and not be seen by these witnesses. However, it is important to recall that Monica McNamara, one of the plaintiff’s classmates and indeed her class representative, explained that she did see the 1980 circular. She swore that she saw the circular sometime after a meeting which had been held in April or May of 1980. She explained it was her duty to check the notice board as part of her responsibilities as class representative but see the notice — or some version of it — she did. Accordingly, the question may be revised to ask why the other six students failed to see the notice that Ms McNamara claims to have seen. Put that way the question may be equally perplexing but it is far less sinister. Perhaps the answer is as Ms Mayers suggested from her experience that notices do not make an impact on students. Indeed it was surprising how casual most of the then students were in regard to matters which could have affected them very seriously. All of the classmates who were called on behalf of the plaintiff admitted that they heard either directly or indirectly that the student body was advised in or about the month of May 1980 that there would be only one automatic retake of examinations. All of the students swore that they concluded — and that without question — that this provision did not apply to them. Again it is clear that every student filled in an application form addressed to the defendants in connection with every examination taken by him or her and yet no student could recall any detail of the form. Some had a recollection of signing some documentation particularly in regard to the final examination and all, of course, fairly accepted that if it was part of the requirements of the defendants that they would have completed the appropriate documentation. There can be no doubt but that these forms were completed and that examination cards were remitted to the students. That is the sworn evidence and it is difficult to see how the system would have operated otherwise. Whilst the forms completed by students are not retained by the defendants it was the evidence of the defendants and of the then secretary of St Joseph’s College that forms were completed in substantially the terms of the precedent put in evidence and that these terms contained a provision as set out in note 2 of that precedent in the following terms:

Candidates may apply for one retake in any one subject. Pennission for a further retake will be at the discretion of the board of basic studies, to whom application should be made through the principal of the candidate’s training school.

No student recalls seeing that note at any time. It surprises me. I would have thought that students, particularly weaker students, would be very attentive to any notice, regulation or advice in relation to the right to repeat examinations and any limit on that right. However, the evidence from all of the students, with the exception of Ms Rajaratmun was to the effect that they made no enquiries in relation to this aspect of their course. Indeed, Mr. Walsh gave evidence that he believed he was taking a second repeat of an examination as of right when it is quite clear from the evidence given by both Mrs. Phillips and Ms Mayers that a successful application was made on his behalf for a concessionary repeat. At the end of the day, therefore, I am satisfied, indeed convinced, that the 1980 circular did appear on the St Joseph’s College notice board and accepting the evidence of Ms Mayers in that regard it is reasonable that I should likewise accept her evidence in relation to the 1978 circular notwithstanding the fact that in that case no student observed the circular.

It is common case that copies of the 1977 edition of the defendants’ manual were distributed amongst the students after they had entered St Joseph’s College in October 1978. It is equally clear that the manual was not supplied to students before they entered the college. On their application for admission to the college they were provided with a prospectus relating to St Joseph’s which does contain a reference to the defendants but the manual was not at that stage supplied to them. Again, I think it is important to remember that the plaintiff did not claim nor did any of the other witnesses suggest they received or were aware of the provisions of the 1977 manual at any time before they applied to and were accepted by St Joseph’s College for the training course provided there.

The second issue of fact that arose was whether the copies of the 1977 edition of the manual distributed amongst the 1978 intake of students contained an erratum slip showing the amendment made in the previous April. Ms Rajaratmun swore that the copy furnished to her and indeed to the classmate sitting beside her contained such a slip. The other students who gave evidence swore that the copies received by them contained no such amendment. Neither Ms Mayers nor Ms Whittle — the secretary of St Joseph’s College — were in a position to give any evidence with regard to how the problem was handled within the administration or secretariat of the college. It was in fact, put to Ms Tansey that the manual furnished to her contained a correction slip pinned — apparently by a stapler — inside the cover thereof. A correction slip was also put in evidence and it was suggested to the witness that this slip — or one similar to it — was affixed to the copy provided for her use. In that connection attention was drawn to the pin-holes on the front of her copy of the manual. No evidence was led by the defendants in support of this claim. Indeed there appears to be a considerable body of evidence to the contrary. Ms Rajaratmun’s evidence was that in her case it was a loose leaf correction slip and not stapled to the copy provided to her or to her companion. Furthermore, the correction slip put in evidence has staple marking on it which would not coincide with those on the cover of the manual. Even more significant is the fact that the correction slip refers to the change in address of the York School of Occupational Therapy. The erratum slip shows this address as appearing on p. 37 of the manual. That address appeared on p. 36 of the 1977 edition of the manual whereas it appeared at p. 37 of the 1979 edition. It would seem clear, therefore, that the slip put in evidence at any rate was a correction relating to the later edition and not the 1977 edition. However, this detail does not determine the issue in this regard between the parties. Should I accept the evidence of one student to the effect that she received the erratum slip and reject (or disregard) the evidence of the five students who say that they received no such slip? Should I prefer the negative evidence to the positive evidence? I am happy to say that it seems to me that it may be possible to reconcile both accounts. I have no difficulty in accepting that the secretariat of the defendant organisation prepared and inserted correction slips for the copies of the manuals in their possession and that all copies dispatched by the defendants after April 1978 contained the appropriate correction in a loose leaf form. On the other hand, it is reasonable to assume that St Joseph’s College would have had at least a number of copies of the defendants’ manual in their possession prior to the alteration. As there was no evidence that any amendment slip was prepared by St Joseph’s College or that any alteration was made in any copies of the manual in their possession it is reasonable to suppose that this course was not adopted. Indeed it is reasonably clear from the evidence of Ms Mayers that this was not done. She gave evidence of her discussion with the principal of the college and of the importance which both of them attached to the alteration and their decision to place a copy of the 1978 circular on the notice board. If any alteration had been prepared or included in the manuals in the possession of the defendants in May of 1978 I am sure that this would have been referred to by Ms Mayers in her evidence. l am satisfied to accept that some students got copies of the manual which included a reference to the alteration made in April 1978 and that other students — including the plaintiff — received the unamended version of the 1977 edition of the manual. As! say I believe that this distinction might be explained by the fact that St Joseph’s College mixed old stock with new but whatever the explanation I believe that the result was as I have indicated.

The third issue of fact relates to the extent of the other information provided by the authorities in St Joseph’s College in relation to the limitation on the right to retake examinations. The plaintiff and the former classmates who gave evidence on her behalf all conceded that at a meeting of teachers and students sometime about May 1980 that the principal or vice principal of the school did explain — among other things — the change in the regulations under which students would have the automatic or absolute right to one retake only and that any further retake would be at the discretion of the examining body. They did not recall any other information being provided. On the other hand Ms Mayers, Ms Rajaratmun and Ms Whittle, gave evidence of a variety of occasions on which this information was communicated to the students. Ms Whittle was clear that the information had been given at a teacher/student meeting in September 1979 which she attended and Ms Mayers gave positive evidence that she explained and emphasised the change on numerous occasions in the course or at the conclusion of classes taken by her. That evidence was confirmed by Ms Rajaratmun who summarised her own evidence by saying that throughout her three year course she was at all times conscious of the fact that there was the right to only one automatic retake. Whilst I have no reason to doubt the integrity of any of the students or graduates of the college who gave evidence I find it difficult to understand the uniformity of their reaction to the advice which they do recall receiving. They all inferred confidently and unquestioningly that the rule which was being emphasised had no application to them because they had commenced their course in September 1978. However this may be, it seems to me that I should prefer the positive account given on behalf of the defendants to the negative evidence adduced on behalf of the plaintiff in this regard. I would prefer to attribute inadvertence or inattention to the students than to convict Ms Mayers and Ms Whittle of perjury and it seems to me that would be the effect of rejecting their evidence. Moreover, I should perhaps add that the principal and her secretary did impress me as witnesses of integrity who were both careful and confident in the evidence which they gave.

Ms Tansey’s career in St Joseph’s, insofar as it is relevant to these proceedings may be summarised shortly as follows. She took her Group 1 examinations in the autumn of 1979. She failed one of the subjects in that group but repeated it successfully when taking her Group 2 examinations in 1980. However within Group 2 she failed one subject, namely, psychiatry and that she proposed to take with her Group 3 in 1981. Ms Tansey explained that she considered taking the finals in two parts and that it was explained to her by Ms Mayers that she could not do so. In the circumstances, Ms Tansey felt that she could and should take all of the subjects together in May 1981. She felt that this was a more desirable course as she had completed her studies and furthermore she was, as she said, advised by Ms Mayers that she was capable of doing the exam if she put her mind to it. The matter is of peripheral importance only but it does seem to me that all of the evidence in fact indicates that the plaintiff was advised to take her psychiatry first in May 1981 and then take her Group 3 final subjects in November of that year. I believe that it was her decision — and perhaps an understandable one — to attempt all five subjects together.

In any event the plaintiff passed in all her final subjects but failed in the retake of psychiatry.

Ms Mayers — who was then the principal — applied on 11 August 1981 on behalf of the plaintiff for liberty to retake for a second time her examination in psychiatry. That application and all of the correspondence surrounding it makes it absolutely clear that it was made on the basis that the plaintiff did not have an absolute right to a retake and that such a right would be granted only at the discretion of the defendants if they felt that such a decision was warranted by the circumstances of the case, It was implied in cross-examination that the application made by Ms Mayers on behalf of the plaintiff was ‘unhelpful’ and deliberately so because Ms Mayers was biased against the plaintiff — to some extent at any rate — because of the fact that she, Ms Tansey, did not possess the requisite minimum educational standards when she entered St Joseph’s College. In my view that implication was wholly unwarranted. It is a particular feature of this aspect of the case that the plaintiff enjoyed very considerable support and sympathy in the unfortunate position in which she found herself. Not only did the principal make the necessary application on her behalf but she herself wrote to the defendants as did all or most of her then classmates. In addition her father wrote at length to the relevant committee of the defendant association and, even more impressively, the application of the, plaintiff for the necessary concession was supported in writing by letters from the chief executive of the National Rehabilitation Board and by the Minister for Health. Finally, Ms Mayers herself and the chief executive of the National Rehabilitation Board travelled to London — at the expense of the N.R.B. — to make representations in person on behalf of the plaintiff.

Furthermore, there is ample evidence that the application made on behalf of the plaintiff was dealt with by the defendants and the various committees within their organisation not only fairly and efficiently but also with some measure of sympathy. As Mrs. Phillips explained the committee of which she was chairman considered the application and sought some special circumstances to justify the exercise of their discretion. Unlike the application made on behalf of Gerard Walsh — who also gave evidence — no such grounds were available in the present case. Indeed the care devoted to the application appears clearly from a letter written by Mrs. Phillips to Mr. David Dick the secretary of the College of Occupational Therapists (which appears to be undated) but was put in evidence on behalf of the plaintiff in the course of cross-examination of Mrs. Phillips. That letter shows the careful analysis which was made of Ms Tansey both of her personality and her academic record and having done so goes on to say as follows:

On balance it would appear that little has changed as a result of Mr. Tansey’s letter. Sub-committee A however would not wish to be unreasonably rigid and would be happy to reconsider their decision if new information were to come to light which shows that the present decision is unjust. Meantime, in fairness
to other candidates both those that have gone forward for extra retakes and those who have had extra retakes denied, the present decision should stand pending any further developments.

Whilst another body might have reached a different conclusion and perhaps every other body would wish to do so, it seems to me impossible to fault the approach adopted by the defendants or to question in any way their integrity or that of Ms Mayers. However I repeat that this is a peripheral matter. The present proceedings do not question the manner in which the defendants exercised their discretion. It is contended herein that no such discretion exists and that the plaintiff has an absolute legal right to a second repeat which has been unlawfully denied to her.

On the basis of the findings aforesaid the relevant facts and the issues arising thereon may be restated as follows. The defendants have designed a syllabus leading to a diploma in occupational therapy and for that purpose set and correct series of annual examinations over a period of three years. The defendants do not themselves provide tuition for the purposes of those examinations. St Joseph’s College, Dun Laoghaire, which is administered and funded by the National Rehabilitation Board is a college recognised by the defendants for the purposes of preparing students in Ireland for the defendants’ examinations. The plaintiff was accepted as a student in St Joseph’s College in August 1978 and commenced her studies there in October of that year. It is not suggested that at any time prior to the commencement of her course that the plaintiff (or any of her fellow students) obtained notice of or information relating to the details of the facilities provided by the defendants or the terms on which they were to be so provided. Sometime after the commencement of her studies — perhaps in the month of November 1978 — the plaintiff received from an administrator or teacher in St Joseph’s College a document described as ‘manual for the diploma course and examination of the College of Occupational Therapists’. The copy of that document provided for the plaintiff was defective in that it stated that it was the normal policy of the defendant association ‘to allow two retakes of each part of the examination’ whereas that provision had been amended the previous April and instead it had been provided that only one automatic retake was to be permitted. That such an alteration had been made was the subject matter of a letter circulated by the defendants to principals of training schools (including St Joseph’s) dated 11 April 1978. That notice had been received by St Joseph’s in the month of May 1978 and shortly thereafter affixed to the notice board in that college where it continued to be displayed during the years 1978 and 1979. On several occasions subsequent to the receipt of the manual the plaintiff was in company with her fellow students informed of the provision in the defendants’ regulations that only one automatic retake of examinations was permitted but this advice and the significance of it did not impress itself upon the plaintiff. The plaintiff completed — as did all of her fellow students — application forms addressed to the defendants in conjunction with the taking of the annual examinations set by the association. Apart from those applications the plaintiff had no direct communication with the defendants prior to the dispute which gave rise to these proceedings.

The plaintiff failed one subject — psychiatry — in her second year examination and repeated that subject when taking her four final year subjects in May 1981. The plaintiff passed all four subjects in her final examination but failed the psychiatry. An application was then made on behalf of the plaintiff for liberty to retake the psychiatry once more. The application was made on the basis that the granting of the liberty was at the discretion of the defendants and that there was no automatic right to a further retake. The application of the plaintiff was supported by letters written by friends and relatives as well as persons influential in the field of occupational therapy. Representations in person were also made on behalf of the plaintiff. Whilst it is recognised that the plaintiffs position is unfortunate and that she is entitled to every sympathy, it is not suggested that the defendants erred in the approach which they adopted in exercising the discretion conferred upon them by the amended regulation or indeed that their decision was anything other than fair and proper. The proceedings herein —unlike the submissions made on behalf of the plaintiff to the defendants — are based solely on the alleged contractual right of the plaintiff to two automatic retakes of each part of the defendants’ examinations.

In these circumstances the case on behalf of the plaintiff is pleaded and argued as follows. First, it is contended that the relationship between the plaintiff and the defendants is founded upon a contract which confers legally enforceable rights on the plaintiff. As the agreement (if any) between the plaintiff and the defendants related to the admission of the plaintiff to the course of studies approved by the defendants rather than the regulation of the conduct of students subsequent to their admission, the matter is one — or so the plaintiff would contend — of general law and not a domestic matter which might, in the case of an appropriate institution, be dealt with by a visitor. The case of Casson v. University of Aston in Birmingham [1983] 1 All ER 88 was cited as persuasive authority in support of this proposition.

Secondly, that the contract was made in the month of November 1978 by the plaintiff offering herself as a student for the defendants’ diploma course and the defendants by their agents, St Joseph’s College, and their officials handing to the plaintiff the defendants’ manual for the course.

Thirdly, that the acceptance of the plaintiff’s offer was on the terms and conditions and subject to the regulations contained in the manual actually handed to the plaintiff and did not include any alterations thereof which were not at the time brought to her attention.

Fourthly, that the plaintiff was not given that degree of notice of the amendment contained in the circular pinned to the college notice board which would be appropriate having regard to the nature of that condition. It was contended that the alteration was in the nature of a restrictive condition and accordingly that clear notice thereof should have been given to the plaintiff.

Fifthly, that the contract having been made by the acceptance of the plaintiff as a student no alteration in the terms of that contract could be made without the plaintiffs consent and that any notice or advice purporting to make such a change was ineffective (see 0lley v. Marlborough Court Ltd [1949] 1 KB 532).

Sixthly, that the plaintiff was entitled to damages for breach of contract which would reflect the income which she might have earned had she been permitted to re-sit her examination in psychiatry, duly passed it and then practised as an occupational therapist as against the income which she did in fact earn as a Montessori teacher notwithstanding the doubt which must exist as to whether she would indeed have succeeded in the examination. In support of that proposition reliance was placed on the decision of the late Dixon J in Hawkins v. Rogers [1951] IR 48.

On behalf of the defendants it was accepted that there was a contractual relationship between them and the plaintiff but only insofar as it related to the setting and correcting of individual examinations. It was the defendants’ contention that such contracts arose and arose only as and when a plaintiff applied in writing to the defendants to sit the various exams constituting the diploma course and on the acceptance of those applications by the defendants. The defendants also accepted that there was a contract between the plaintiff and St Joseph’s College for the provision of training and tuition. In particular the defendants contend that no contract was entered into between the plaintiff and the defendant in the year 1978. On their behalf it was said that they made no offer to the plaintiff and received no offer from her. Less still was one accepted. It was emphasised that the defendants did not know of the existence of the plaintiff at any time before she applied in 1979 to sit her Group 1 examination. To the argument that St Joseph’s College acted as the agents of the defendants it was pointed out that the evidence made it clear that St Joseph’s College was an autonomous body which exercised their own discretion as to what students they would take in and indeed their own judgment as to what students they might expel.

I am unable to accept that a contract between the defendants and the plaintiff came into existence at the time, in the manner or on the terms for which the plaintiff contends as aforesaid. One would like to think that a student in the plaintiffs position would have some guarantee that significant changes would not be made in the structure of the course which she was pursuing or the fundamental regulations governing it after she had embarked thereon. No doubt to some extent this is achieved by the sense of responsibility actually displayed by the defendants in the present case and hopefully exercised by similar bodies in other cases.

Contractual obligations derive from agreement made between two or more parties under which one promises or undertakes with the other the performance of some action. Ordinarily, the existence of an agreement presupposes an offer by one party to perform the action on certain terms and the acceptance of that offer by the other. Logical analysis would suggest that the offer must be communicated to the person for whom it is intended and in turn his acceptance must likewise be communicated to the offeror. In the absence of such communication, whether expressed or implied, there would not be that meeting of minds which is implicit in the concept of any agreement. It must be recognised, however, that the innumerable authorities dealing with the law of contract and academic analyses of those decisions over many years reveal refinements of this analysis and apparent exceptions to it. Nevertheless, it seems to me that the case made on behalf of the plaintiff must be examined with a view to identifying the offer and acceptance constituting the alleged agreement.

The celebrated case of Carlill v. Carbolic Smoke Ball Co. [1893] 1 QB 256 is authority for the propositions first, that an offer may be made to the world at large even though a contract can only be made with identified persons. Secondly, that such an offer may be accepted by the performance of a particular condition prescribed in the offer and thirdly, that as notification of acceptance is required for the benefit of the person who makes the offer he may, if he thinks it desirable to do so, dispense with such notice. Accordingly one could envisage circumstances in which an examining body might communicate to the public at large the terms in which they were offering a series of examinations and expressly or by implication inviting interested persons to accept that offer by undertaking a specified course of study. However, that is not the present case. The plaintiff was not aware of any offer made by the defendants prior to the commencement of her studies and accordingly her application to St Joseph’s and their admission of her as a student could not constitute acceptance of any offer by the defendants herein. Even if the position were otherwise, this approach would be of no avail to the plaintiff — as her counsel fully recognised — because the terms and condition on offer from the defendant at that time provided only for one automatic retake of failed examinations. Again it would not be sufficient for the plaintiff to argue that on her admission as a student of St. Joseph’s that the defendants thereby accepted an offer from her simply to take the exams which they proffered. To succeed in this case the plaintiff must establish the existence of a contract which incorporates the particular provision entitling her as of right to a second repeat of her examinations. In the circumstances of the present case it has to be contended either that the plaintiff should be seen as making an offer to take the defendants’ course on such terms as they would prescribe and that the defendants accepted that offer by permitting or authorising St Joseph’s College as their agents to hand to the plaintiff the manual containing the terms prescribed herein or, alternatively, that the presentation of the manual by St Joseph’s to the plaintiff constituted an offer and that some conduct by the plaintiff — perhaps continuing with her course of studies — constituted acceptance of that offer. Counsel on behalf of the plaintiff did not pursue the second of these alternatives recognising, no doubt, the difficulty in establishing any action which could be interpreted as acceptance.

There are two formidable difficulties to be overcome in establishing the case on which the plaintiff does rely. First, it is difficult to conceive of an acceptance which would itself prescribe conditions. Ordinarily a communication in the course of negotiations leading to a contract which contains conditions not previously agreed by the party to whom the communication is addressed will fall to be treated as a new or counter offer rather than an acceptance. Secondly the plaintiff’s argument was criticised on the basis that, if the offer permitted the defendants to establish the terms, conditions or regulations governing the contract, there was no justification for assuming that these provisions would not be subject to alteration. However, perhaps the best way of presenting the defendants’ counter argument is to say that the plaintiff did not prescribe the production of the manual as the means of accepting any offer made by her and there is no internal evidence in this manual and nothing in the conduct of the officials of St Joseph’s College by whom it was distributed to suggest that the circulation of the manual amongst the students was intended to constitute acceptance of a contract either by St Joseph’s College or by the defendants. I believe that this objection to the plaintiffs argument is well founded. The manual contains, for the greater part, a large body of information in relation to the medical and surgical conditions relevant to the study of occupational therapy. The information with regard to examinations is obviously important but there is nothing in its presentation to suggest that the communication of this information by the officials of a recognised college should constitute acceptance of an offer by potential students.

I am not to be taken as laying down any principle that conditions or regulations made by an examining body—be it the defendants or any such body — could not be made part of a legally binding contract. Indeed it is possible that a successful argument could have been made to the effect that the amended rules of the defendants did form part of such a contract. All that can be said in relation to the present case is that the plaintiff has not proved that the plaintiff offered or the defendants accepted any offer by the plaintiff to take the diploma course on terms which included and included only the regulations contained in the unamended 1977 manual.
In these circumstances it seems to me — not without some regret — that the plaintiff’s claim must fail.