Assignment 2-comlaw-scenario 2 PDF

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Subject Code: LAWSubject Name: Comercial Law Student name - ID: Pham Quoc Khai - s Tran Bao Ngoc – s Tran Hai Bang – s Group: 89Campus: RMIT Viet Nam - SGSLecturer's Name: Mr. Son Nguyen Tan Word count: 4030ASSESSMENT 2: TEAM PAPERTABLE OF CONTENT Scenario Case 1: Manny v Harry I. Tort of Negligence...

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Subject Code: Subject Name:

LAW2447 Comercial Law

Student name - ID: Pham Quoc Khai - s3836559 Tran Bao Ngoc – s3836222 Tran Hai Bang – s3752939 Group:

89

Campus:

RMIT Viet Nam - SGS

Lecturer's Name: Mr. Son Nguyen Tan Word count:

4030

ASSESSMENT 2: TEAM PAPER

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TABLE OF CONTENT Scenario 1 I.

Tort of Negligence

Case 1: Manny v Harry

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Case 2: Manny v (Ray and Bob)

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Case 3: Manny v Ray

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Case 4: Manny v Walstore

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Case 5: Manny v (Mickey and Minnie)

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II.

Vicarious Liability

Case 6: Manny v Walstore

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Scenario 2 I.

Tort of Negligence

Case 1: Billy Local v Janet Whiz

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Case 2: Billy Local v Janet Whiz

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Case 3: July v Billy Local

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Case 4: July v Janet Whiz

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Case 5: Billy Local v Doctor Denning

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Case 6: July v Doctor Denning

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II.

Vicarious Liability

Case 7: The Great Lake Shopping Mall v (Billy Local v Janet Whiz)

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Case 8: The Great Lake Shopping Mall v (July v Janet Whiz)

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Case 9: The Collins Multidisciplinary Clinic v (Local v Doctor Denning)

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Case 10: The Collins Multidisciplinary Clinic v (July v Doctor Denning)

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Scenario 3 Case 1: Abel Movers v Cain Construction Co Ltd (CCC)

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Case 2: Algernon v Basil

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Scenario 1: I.

Tort of Negligence.

Case 1: Manny v Harry. In this situation, Manny is the plaintiff and Harry is the defendant. The main legal issue here is whether Manny can sue Harry under Tort of Negligence (TOC) because of grabbing Manny by the elbow and making Manny fell on the ground. First of all, to determine the relationship between the plaintiff and defendant, the “neighbor test” must be considered here based on Donoghue v Stevenson [1932]1. Harry pulled Manny down on the floor, that action caused potential harm for the plaintiff. Additionally, Harry was in the crowd and Manny was also there. Therefore, the “neighbor test” is satisfied. So, Harry owed a Duty of Care (DOC) to Manny. To decide whether Harry breached a DOC that he owed Manny. By applying the rules in section 43 Clivil Law (Wrongs) Act 20022, we need to analyze four factors of Standard of Care (SOC): the probability of harm in Bolton v Stone [1951]3, the likely seriousness of harm in Paris v Stepney Borough Council [1951]4, the cost of taking precaution in Latimer v AEC [1953]5, and social utility in Watt v Hertfordshire County Council [1964]6. Firstly, the probability of harm in this situation is medium to high because in the crowd, when someone is grabbed suddenly, they tend to loose the balance and fall on the ground. Secondly, the likely seriousness of harm is also high. Once the accident is happened, a person, who fell on the ground can be trampled by the crowd and get serious injuries like broken nose, bruises. However, the cost of taking precaution is easy by not pulling Manny. Finally, the action of defendant is useless for the society because Harry’s action can cause disorder for surrounding people. Hence, Harry breached the DOC that 1 Donoghue v Steven [1932] AC 562 2 Civil Law (Wrongs) Act 2002 (ACT) s 43(1); Civil Liability Act 2002 (NSW) s 5B (1); Civil Liability Act 2003 (Q1d) s 9(1); Civil Liability Act 1936 (SA) s 32(1); Civil Liability Act 2002 (Tas) s 11; Civil Wrongs Act 1958 (Vic) s 48(1); Civil Liability Act 2002 (WA) s 5B(1). 3 Bolton v Stone [1951] AC 850. 4 Paris v Stepney Borough Council [1951] AC 367. 5 Latimer v AEC [1953] AC 643. 6 Watt v Hertfordshire County Council [1964] 1 WLR 835.

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he owed Manny. Moreover, the defendant caused the plaintiff to suffer serious damage was reasonably foreseeable. ·

Defence Based on Alexander v Manley [2004]7, contributory negligence defence is made here,

Manny already knows Walstore has no plans or warning signs to ensure the order of the crowd, so Manny must recognize the danger and protect himself by staying away the crowd. However, he still joined to the crowd even though he knew the crowd can cause potential harm to him. Overall, all of requirements are convinced. So Manny can sue Harry under Tort of Negligence. However, Harry can reduce his liability due to the contributory negligence defence.

Case 2: Manny v (Bob and Ray). In this case, Manny is the plaintiff, Bob and Ray are the defendants. The significant issue here is if Manny can sue Bob and Ray under Tort of Negligence because of the careless of taking precaution in the store. The first demand is if Bob and Ray owed Manny a DOC. It is clear that the relationship between the plaintiff and the defendants is “Occupier and Guest” based on Australian Safeway Stores Pty Ltd v Zaluzna [1987] 8. Bob and Ray were security of Walstore and had a mission to manage the order of the store and Manny was a guest in Walstore. Hence, Bob and Ray had a responsibility for accident that happened in the store. Therefore, the Bob and Ray owed Manny a DOC. The second demand is whether Bob and Ray breached DOC that they owed Manny. All four factors of SOC are also considered as the case above. Firstly, based on Bolton v Stone [1951] (cited above) the probability of harm is medium to high. To interpret, the store had a discount program. Then, the store would be full of people. Therefore, the scuffle is unavoidable. Secondly, according to Paris v Stepney Borough Council [1951] (cited above), the likely seriousness of harm is also high as the same interpretation in case 1. Besides, based on Latimer v AEC [1953] (cited above), it is easy to avoid the accident by setting up a sign to ask customer making a line to get into the store. Finally, there is no social useful activity in this case because 7 Alexander v Manley [2004] WASCA 140. 8 Australian Safeways Stores Pty Ltd v Zaluzna [1987] 162 CLR 479 488.

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the careless of defendants did not contribute any advantages to society as stated in Watt v Hertfordshire County Council [1964] (cited above). Furthermore, the defendant caused the plaintiff to suffer serious damage was reasonably foreseeable. Therefore, Bob and Ray breach the DOC that they owed Manny. ·

Defence The contributory negligence defence is the same as Manny v Harry. In conclusion, Manny can successfully sue Bob and Ray under Tort of Negligence.

However, the defendants can reduce the damage rewards due to contributory negligence.

Case 3: Manny v Ray In this situation, Manny is the plaintiff, Ray is the defendant. The significant issue here is whether Manny can sue Ray under TON because Manny was intentionally injured by Ray. The first deputy legal issue is whether Ray owed a DOC to Manny. Like Manny v Bob and Ray, the relationship between Manny and Ray is also “Occupiers and Guests” (cited above). Hence, Ray owed Manny a DOC. The second subordinate legal issue is whether Ray breached the DOC that he owed Manny. Firstly, as stated in Bolton v Stone [1951] (cited above), the probability of harm is low since Ray just wanted to grab Manny out of the crowd. Based on Paris v Stepney Borough Council [1951] (cited above), the likely seriousness of harm is just medium, because in a situation, when people pull someone with supportive purpose, they tend to try to keep safe for victim. As stated in Latimer v AEC [1953] (cited above), there is a useful social activity in this case. The reason is the defendant’s conduct is to save the plaintiff’s life. Additionally, based on Watt v Hertfordshire County Council [1964] (cited above), it will be difficult to take a precaution, because if Ray had not done that, Manny would have been killed by the crowd. Overall, Ray met the SOC. Consequently, Manny cannot sue Ray.

Case 4: Manny v Walstore

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In this case, the plaintiff is Manny and the defendant is Walstore. The crucial issue here is whether Manny can sue Walstore under TON because of the careless of Walstore in managing the order of the store. The first legal issue is whether Walstore owed Manny a DOC. As the case of Manny v Bob and Ray, it is obvious that the relationship between Walstore and Manny is “Occupiers and Guests” Cited above). Therefore, Walstore owed Manny a DOC. The second legal issue is whether Walstore breached the DOC that they owed Manny. All of four elements in SOC in this case are considered as the same with the case of Manny v Bob and Ray. The third requirement is satisfied as the defendant caused the plaintiff to suffer serious damage was reasonably foreseeable. Hence, Walstore breached a DOC that they owed Manny. ·

Defence In contrast, the contributory negligence defence of Walstore is similar to the case of

Manny v Bob and Ray. Overall, Manny can sue Walstore under TOC. But Walstore can reduce the damage rewards due to contributory negligence defence.

Case 5: Manny v (Mickey and Minnie) In this case the plaintiff is Manny, the defendants are Mickey and Minnie. The main legal issue here is whether Manny can sue Mickey and Minnie under TOC due to running over on Manny. The first legal issue is whether Mickey and Minnie owed Manny a DOC. The “neighbor test” is considered here based on Donoghue v Stevenson [1932] (cited above) as the explanation is similar to the case of Manny V Harry. Therefore, Mickey and Minnie owed Manny a DOC. The second legal issue is whether Mickey and Minnie breached a DOC. Based on Bolton v Stone [1951] (cited above), the probability of harm is medium to high as Mickey and Minnie run in the crowd quickly to get the cheap laptop, therefore, they only pay attention to where to store cheap laptops, so they do not pay attention to their surroundings. According to Paris v Stepney Borough Council [1951] (cited above), the likely seriousness of harm is high as the

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interpretation is similar to the case of Manny v Harry. As stated in Watt v Hertfordshire County Council [1964] (cited above), it is easy to take precaution because instead of running quickly, they should slow down and pay close attention to their surroundings. Based on Latimer v AEC [1953] (cited above), the social utility is the same with the case of Manny v Harry. Additionally, the third requirement is satisfied as the defendant caused the plaintiff to suffer serious damage was reasonably foreseeable. Mickey and Mannie breached the DOC that they owed Manny. ·

Defence On the other hand, the contributory negligence defence is also made. It is similar to the

case of Manny v Harry. Overall, Manny can successfully sue Mickey and Minnie under TOC. But the defendants can reduce the liability because of making a contributory negligence defence strongly.

II.

Vicarious liability

Case 6: Manny v Walstore. The main legal issue here is whether Manny can sue Walstore under vicarious liability because of the careless conduct of Walstore employees. To consider Manny can sue Walstore under vicarious liability or not, the plaintiff has to demonstrate that the employee committed tort of negligence for the plaintiff inside the extent of employee’s work. That implies the representative perform approved assignments to upgrade the advantages for the business9. In this case, Bob and Ray were the security of Walstore, and they had responsibility to keep order in the store, but their mission has failed and they committed TOC. Therefore, Walstore is also responsible for Manny’s accident. In conclusion, Manny can also successfully sue Walstore under vicarious liability.

9Century Insurance v Northern Ireland Road Transport Board [1942] AC 509.

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Scenario 2: I.

Tort of negligence:

Case 1: BILLY LOCAL (plaintiff) v JANET WHIZ (defendant) The main legal issue is whether Local can sue Whiz under TON for causing Local the head injury in the firework show. ·

Duty of Care:

The first issue is whether Whiz owed Local a DOC. By applying neighbor test based on Lord Atkin in Donoghue v Stevenson [1932] (cited above), it was reasonably foreseeable that Whiz’s conduct could cause harm to Local as the firework was hit by Whiz’s foot and fired at awkward angles, then potentially slammed into other people including Local. Indeed, Local was closely and directly affected by Whiz’s conduct as Local was standing beside Whiz at that time. Hence, the neighbor test is satisfied and Whiz owed Local a DOC. ·

Breach of Duty of Care:

The second issue is whether Whiz breached her DOC. First of all, probability of harm cited in Bolton v Stone [1951] is one of the four factors that needs to be considered to determine whether Whiz breached her DOC. For this case, the probability of harm is high as Whiz’s foot caused the firework to fire at different and uncontrollable angles which obviously could hit and injure anyone nearby even though they stay 3 meters away as following the warning sign. Secondly, according to Paris v Stepney Borough Council [1951] (cited above), the likely seriousness of harm is high because the fireworks are made from sturdy and solid materials which seriously damage the body and cause severe injury, even death if they hit. Besides, when considering the cost of taking precautions based on Latimer v AEC [1953] (cited above), it was cheap and easy for Whiz as she could be careful to ask Local to leave outside the firework zone as following the sign’s instruction before lighting the firework and talk about the smoke problem after the show. Consequently, Whiz could avoid the screaming of Local’s complaint and was not in a hurry which caused her foot hitting the firework that led to Local’s injury. Finally, the legal rules of social utility stated in Watt v Hertfordshire County Council [1954] (cited above) is

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considered. In this case, there was no social utility as Whiz’s conduct was not useful to the society. Overall, after considering the four elements of SOC above, Whiz did not do what a reasonable person would have done in the same situation. Thus, Whiz breached her DOC. In this case, Whiz caused Local to suffer injury which was reasonably foreseeable. ·

Defences:

Although Whiz committed a tort of negligence, Whiz can escape from liability completely by establishing a full defence related to voluntary assumption of risk (Insurance Commissioner v Joyce [1948])10. To be specific, Whiz had put a sign in the Mall garden to warn everybody to stay 3 meters away from the fireworks. While entering the firework zone and standing beside Whiz where Whiz was about to lighting the firework, Local was fully aware of the risk and voluntarily assumed that risk. In addition, Local’s action made Whiz in haste that cause her carelessly hitting the firework. Thus, Whiz can be relieved of all liability. ·

Conclusion:

To conclude, Billy Local can successfully sue Whiz under TON. However, Whiz can be completely relieved her liability by establishing a full defence.

Case 2: BILLY LOCAL (plaintiff) v JANET WHIZ (defendant) The main legal issue is whether Local can sue Whiz under TON for causing smoke from fireworks into Local’s house. ·

Duty of Care:

The first subordinate issue is whether Whiz owed Local a DOC. By conducting neighbor test cited in Lord Atkin in Donoghue v Stevenson [1932] (cited above), the fireworks’ smoke could be potentially harmful to other people nearby. Besides, Local was living in a house which is four blocks far away from the Mall and the smoke was also directly blown towards Local’s house, which shows that Local was closely and directly affected by Whiz’s conduct. Hence, the neighbor test is satisfied and Whiz owed Local a DOC. ·

Breach of Duty of Care:

10 Insurance Commissioner v Joyce [1948] HCA 17.

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By identifying whether Whiz breached her DOC, four factors of SOC are considered. Firstly, smoke from fireworks could make Local suffer some breathing issues, and emotional distress which was mentioned in the scenario that Local was really upset. However, Local’s house was quite far away, about 4 blocks from the Mall that was approximately one mile away. Thus, the probability of harm (Bolton v Stone [1951] -cited above) was medium. Secondly, the likely seriousness of harm (Paris v Stepney Borough Council [1951] -cited above) was high because heavy smoke blown directly to Local’s house which could definitely leads Local who was an old, retired teacher to serious breathing problems and brain damage as lacking oxygen along with psychological injury. However, Whiz made his efforts to prevent the smoke blowing to Local’s house with series of powerful fans but they were not enough. Thus, the precautionary cost (Latimer v AEC [1953]-cited above) was considered not easy and expensive to have more powerful fans to reduce the smoke. Lastly, there was no social benefit of Whiz’s conduct in this case (Watt v Hertfordshire County Council [1954]-cited above). According to the four factors above, Whiz breached her DOC. Besides, Whiz caused Local to suffer injury which was reasonably foreseeable. Conclusion:

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In conclusion, Local can successfully sue Whiz under TON for causing smoke to Local’s house.

Case 3: JULY (plaintiff) v BILLY LOCAL (defendant) The main legal issue is whether July can sue Local under TON for July’s arm injury ·

Duty of Care:

The first subordinate issue is whether Local owed July a DOC. Since there is no relationship between July and Local recognized in established categories of DOC, neighbor test (Donoghue v Stevenson [1932]-cited above) must be done. As Local was knocked out by the firework and then probably hit other guests attending the show including July, which potentially made July being harmed. Besides, July was standing nearby Local when the accident happened so July was closely and directly affected by Local’s conduct. Thus, Local owed July a DOC. ·

Breach of Duty of Care: 10

The second subordinate issue is whether Local breached his DOC based on considering the four factors of SOC. Firstly, the probability of harm (Bolton v Stone [1951]-cited above) was high as the firework’s power knocking Local who was then hit July was relatively strong, which could cause July fall painfully on the hard surface and injure. Next, the likely seriousness of harm (Paris v Stepney Borough Council [1951] -cited above) was high because being hit by someone with fast speed could make July fall and suffer severe damages and broken bones, which are also causes of death. Besides, the cost of taking precaution ( Latimer v AEC [1953]cited above) was considered cheap and easy as Local could stay outside the firework zone which was 3 meters away the firework and talk to Whiz after the show finished instead of standing beside Whiz, complaining and screaming at Whiz during lighting the firework. If Local had done this action, Whiz would not have been careless and hasty to hit the firework, which leads to the accident. Finally, there was no social utility in this case (Watt v Hertfordshire County Council [1954]-cited above). Overall, based on the four elements considered above, it is concluded that Local breached his DOC. In addition, Local caused July to suffer injury which was reasonably foreseeable. · Conclusion: In conclusion, July can successfully sue Local under TON for July’s arm injury.

Case 4: JULY (plaintiff) v JANET WHIZ (defendant) The main legal issue is whether July can sue Whiz under TON for causing July the arm injury in the firework show. · Duty of Care: The first issue is whether Whiz owed Local a DOC. As July joined the...