Assignment 2 LAW2447 Team 95 PDF

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RMIT UNIVERSITY VIETNAMHANOI CAMPUSLAW2447 – COMMERCIAL LAWASSESSMENT 2 – TEAM PAPERLecturer: Dr. Loh Ing HoePrepared by Team 95Team members: Pham Quynh Anh – sLai Minh Cam – sNguyen Ha Linh – sTABLE OF CONTENTS SCENARIO 1. ISSUE ISSUE SCENARIO 2. ISSUE ISSUE ISSUE ISSUE ISSUE SCENARIO 3. ISSUE ISSU...

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RMIT UNIVERSITY VIETNAM HANOI CAMPUS

LAW2447 – COMMERCIAL LAW ASSESSMENT 2 – TEAM PAPER Lecturer: Dr. Loh Ing Hoe Prepared by Team 95 Team members: Pham Quynh Anh – s3821194 Lai Minh Cam – s3802917 Nguyen Ha Linh – s3825960

TABLE OF CONTENTS SCENARIO 1.

3

ISSUE 1

3

ISSUE 2

5

SCENARIO 2.

6

ISSUE 1

6

ISSUE 2

7

ISSUE 3

8

ISSUE 4

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ISSUE 5

10

SCENARIO 3.

11

ISSUE 1

11

ISSUE 2

12

ISSUE 3

13

ISSUE 4

14

ISSUE 5

15

SCENARIO 4.

16

ISSUE 1

16

ISSUE 2

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BIBLIOGRAPHY

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SCENARIO 1. ISSUE 1 The Summers v Chad Charles. Legal issue Whether Charles was tortiously liable to the Summers when he tried to avoid Free’s car and crashed into the Summers’ wooden playhouse. As a result, the truck of Charles has destroyed the playhouse and injured Sarah Summer. The subordinate legal issue is whether Fresh Fruit has the vicarious liability to Charles’s conduct.

Legal rules – Application The legal rules are used in the first issue is Tort of negligence. When a person performs careless conduct that causes harm to another, he/she infringes upon the tort of negligence (James, 2017)1. In order to determine this, three requirements must be established by the plaintiff comprising (1) whether the defendant owed the plaintiff a ‘duty of care’ (DOC), (2) if the respondent breached the DOC, and (3) whether the claimant endured injury/ damage/ harm that was reasonably foreseeable2. First of all, according to the DOC, the relationship between these two parties is not detected in the established lists, therefore, the ‘neighbor test’ is used to identify whether the defendant’s conduct was closely or directly influenced the plaintiff as well as was potentially harmful to others 3. The surrounding area of the highway is farmland and the speed limit at 100km/h. However, Charles has exceeded the speed limit at 110km/h. Consequently, he has served out of the lane and could have been injured anything or anyone nearby the highway. Thus, Charles owed DOC to the Summers. Second, to verify if the defendant did breach the DOC to the plaintiff, the standard of care must be determined through four factors: the probability of harm, the seriousness of harm, the cost of taking precaution, and social utility4. The higher the probability of harm, the greater the standard of care (SOC)5. This also applied to the seriousness of harm, the higher the likely seriousness of harm, the higher the SOC6. Determining the cost of precautions, when the harm can be avoided with a cheap and easy method, but the defendant failed to take these measurements is likely a breach of DOC7.

1

Jame, 2017, Business Law 4th ed, page 118.

Civil Law (Wrongs) Act 2002 (ACT) Chapter 4. Donoghue v Stevenson [1932] UKHL 100 (26 May 1932). 4 Civil Law (Wrongs) Act 2002 (ACT) s 43. 5 Bolton v Stones [1951] AC 850 (10 March 1951). 6 Paris v Stepney Borough Council [1951] AC 367 (13 December 1951). 7 Latimer v AEC Ltd [1953] AC 643 (25 June 1953). 2 3

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Besides, the standard of care may be lowered if the defendant’s behavior is beneficial to society 8. According to the probability, when the drivers exceeded the speed limit, they may not control the steering wheels and cause harm to people or objects on the roads and the roadsides, hence, the probability, in this case, is high. The seriousness of harm is noticeable as traffic accidents which are caused by a truck at speed 110km/h will seriously damage the property as well as injure people. Moreover, the cost of precaution is really low because Charles just needed to drive at the proper speed. Lastly, since no social utility is recognized for driving a truck on the highway, all four factors indicated that Charles did breach his DOC to the Summers. Third, taking into account the final element of Tort of Negligence, the Causation principle proclaims that: (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm (‘factual causation'); (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability)9. In this case, the defendant’s conduct was reasonably predictable to cause injuries to the plaintiff. However, concerning the contributory negligence, the defendant might get reduced from liability when the plaintiffs also did something careless that contributed to their injuries 10. In this situation, the Summers’ house was built only 15 meters away from the road which is not far enough to maintain the safety of the house. Therefore, the Summer has contributed to their house’s damage, and this defense is recognized. On the topic of vicarious liability, when the harmful act was done within ‘the scope of employment’, which means that the employer will be vicariously liable to the employees if they were working11. Yet, it did not inform that Charles was on duty when the accident came about. Hence, Fresh Fruit was not a vicarious liability to the Summers.

Conclusion Charles was tortiously liable to the Summers, still, the contributory negligence must be taken into consideration and Fresh Fruit was not vicariously liable to the Summers.

8

Civil Liability Act 2002 (WA) s 5 B (2).

9

Civil Law (Wrongs) Act 2002 (ACT) s 45. Ingram v Britten [1994] Aust Torts Reports 81-291 11 Century Insurance v Northern Ireland Road Transport Board [1942] AC 509 (4 March 1942). 10

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ISSUE 2 Chad Charles v Fred Free. Legal issue Whether Free has a tortious liability to Charles when Free exceeded the speed limit and changed to Charles’s lane too quick that made Charles crash into the cornfield. Consequently, the car accident injured Charles and caused damage to his truck.

Legal rules – Application Considering the legal issue, there are three elements needed to be satisfied: DOC, Breach of DOC, and Causation12. Firstly, the relationship between Charles and Free was identified in the categories of DOC as Motorists and road users13. Thus, Free owed Charles a duty of care. Secondly, in order to determine if the defendant did breach the DOC, there are four elements needed to be concerned about (Cited in the case between the Summers v Chad Charles)14. Since Free obviously exceeded the speed limit (110km/h) and changed lane at high speed which can cause accidents to anyone on the roads and in this case is Charles, the probability of harm is high. The seriousness of harm is also predicted to be high as a car accident would lead to serious injuries and even mortality. In contrast to the cost of precaution, Free just needed to drive at the proper speed and comply with the traffic rules when changing lanes, hence, the cost is cheap and easy. Last but not least, no social utility is recognized for changing lanes. All four elements have indicated that Free breached DOC to Charles. On the other hand, before the accident happened, Charles also exceeded the speed limit which affected his control of the steering wheel and made him unable to react opportunely. If Charles drove at the proper speed, he would minimize the chance of the accident. Hence, Charles was contributorily negligent.

Conclusion Free has a tortious liability to Charles. Therefore, Charles can win this case. However, contributory negligence should be taken into consideration.

12

Civil Law (Wrongs) Act 2002 (ACT) Chapter 4.

13 14

Civil Law (Wrongs) Act 2002 (ACT) s 43.

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SCENARIO 2. ISSUE 1 Tracey Ryder v the 5-year-old girl. Legal issue The legal issue is whether the 5-year-old girl committed the tort of negligence owing to her action of letting soap liquid splilled on the floor which caused Ms. Ryder's spinal injury and cost her a $40.000 medical bill. The subordinate legal issues are whether the child was fully capable of taking legal responsibility for her conduct, and whether her parents had vicarious liability for their child’s action or not.

Legal rules – Application According to Legal Services Commission of South Australia, a child is generally liable for the repercussions of his/ her wrongdoing15. Though the required level of reasonable care of the child might depend on his/ her age as well as the expected SOC of a child at the same age, the child in this case still had the capability to take responsibility for her own wrongful conduct. To determine the tort of negligence, three requirements are needed: (1) DOC, (2) Breach of DOC, and (3) Causation16. In terms of DOC, since the relationship between Ms. Ryder and the little girl does not fall within any of DOC established categories, the ‘neighbor test’ is applied17. Considering the required SOC, it makes sense for a child at the age of 5 to aware that spilled liquid on the floor is something unwanted. However, it is unreasonable for the child to foresee that his/ her conduct might lead to a bodily injury of someone else who might slip on the wet floor and cost them other losses. Hence, the 5-year-old girl, in this case, was not tortuously liable to Ms. Ryder. As the child did not commit the tort of negligence, her parents accordingly had no vicarious liability to the plaintiff.

Conclusion The child was free from tortious responsibility for Ryder, thus, her parents also had no vicarious liability to Ryder.

Legal Services Commission of South Australia n.d, Children and negligence, viewed 10 August 2020, . 15

16 17

Civil Law (Wrongs) Act 2002 (ACT) Chapter 4. Donoghue v Stevenson [1932] UKHL 100 (26 May 1932).

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ISSUE 2 Tracey Ryder v the 5-year-old girl’s parents. Legal issue The legal issue is whether Ms. Ryder can sue the 5-year-old girl's parents for their failure in supervising their child, which led to Ryder's bodily injury and financial losses or not.

Legal rules – Application Considering the legal issue, there are three elements needed to be satisfied: DOC, Breach of DOC, and Causation18. In terms of DOC, since the relationship between Ms. Ryder and the parents does not fall within any of DOC established categories, the ‘neighbor test’ is applied19. It is reasonably predictable that allowing the child to play with liquid objects in public without supervision may lead to a liquid leak. This might cause harm to anyone moving around the area. Therefore, in this case, her parents owned the plaintiff's DOC. To indicate the breach of DOC, the following SOC's factors need to be taken into consideration 20. Firstly, the probability of a child unintentionally spilling liquid from the bubble bottle is as high as the probability of someone slipping and getting hurt because of the liquid leaked. Referring to the seriousness of harm, a slip-on the wet floor in a bad situation would even cause severe bodily injuries such as brain injury. Meanwhile, the cost of taking precautions is extremely low, as parents only need to watch their children more carefully and responsibly. Last but not least, social utility is not applicable. About the causation, the spinal injury that the plaintiff had to suffer due to the slip was reasonably predictable.

Conclusion In brief, it can be concluded that the 5-year-old girl's parents were tortiously liable to Ms. Ryder.

18

Civil Law (Wrongs) Act 2002 (ACT) Chapter 4. Donoghue v Stevenson [1932] UKHL 100 (26 May 1932). 20 Civil Law (Wrongs) Act 2002 (ACT) s 43. 19

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ISSUE 3 Tracey Ryder v Tom v Woodworths. Legal issue The main legal issue is whether Tom, the defendant, committed the tort of negligence toward Ryder, the plaintiff, as he opens the bottle of bubble without warning the customer of the possible liquid leak, which results in Ryder’s injury. The subordinate legal issue is whether Woolworth Supermarket was vicariously liable for Tom’s conduct.

Legal rules – Application Based on the main legal issue, three elements need to be examined: Duty of Care (DOC), breach of DOC, and Causation21. Firstly, the relationship between Ryder and Tom does not fall within the required relationship category, so the ‘neighbour test’ was applied22. Opening a bottle of bubbles can not be considered dangerous or have closely or directly affect Ryder. Hence, Tom does not owe Ryder DOC. Regarding the principle of vicarious liability of employer and employee23(cited above in the case between Summer v Charles), since Tom does not owe Ryder DOC, Woolworth Supermarket was not vicariously liable.

Conclusion Overall, Tom does not owe Ryder DOC. Thus, Woolworth Supermarket was not vicarious liable over Tom’s conduct. Ryder cannot successfully sue Tom nor Woolworth Supermarket in this situation.

21

Civil Law (Wrongs) Act 2002 (ACT) Chapter 4.

22

Donoghue v Stevenson [1932] UKHL 100 (26 May 1932).

23

Australian Safeway Stores Pty Ltd v Zaluzna [1987] 162 CLR 479 (10 March 1987).

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ISSUE 4 Tracey Ryder v Robert. Legal issue Mr. Robert was the one who was standing near Ms. Ryder when the accident happened. Jumping to the scene and attempting to help, he broke her left arm, which led to her 2-month hospitalization and cost her $15.000 for the medical bill. The legal issue is whether Mr. Robert committed a tort of negligence to Ms. Ryder or not.

Legal rules – Application The relevant legal rule for this case is the tort of negligence (Jame, 2017, Business Law 4th ed, page 118) (cited above in the case between the Summers v Chad Charles). To determine the tort of negligence, three requirements are needed: (1) DOC, (2) Breach of DOC, and (3) Causation24. Owing to the fact that Ms. Ryder is the customer of Westfield Shopping Center and Mr. Robert is the passerby, the relationship between the two parties does not belong to any listed categories of DOC. Then, the "Reasonable Foreseeability Test" will be examined. According to HLS Health Care, lifting a person up incorrectly might cause shoulder and back injuries to that person 25. In this case, Mr. Robert's conduct of lifting Ms. Ryder did cause a direct harm to her (he broke her left arm). As a result, Mr. Robert owed Ms. Ryder a DOC. The probability of harm from the action of lifting Ms. Ryder up quickly is extremely high as HLS mentioned above. Thus, the SOC is also higher. Moreover, before that, Ms. Ryder had already been suffering a spinal injury from the slip, so his careless conduct of lifting her up could make the seriousness of harm become more severe. On the other hand, if Mr. Robert had been more careful and lifted her up in the right way, her arm would not have been broken. The cost of taking precautions is low and easy but Mr. Robert failed to do it. Hence, this was considered to be a breach of DOC. Besides, though Mr. Robert's action stem from his wanting to help her out, this action did not work but coincidentally made her injury more serious. So, this can not be considered as a social utility. In this scenario, Ms. Ryder's broken arm is actual harm. Without the conduct of Mr. Robert, Ms. Ryder would not have to suffer broken arm injury. The 'but for' test is satisfied. Moreover, the consequence from his reckless action is reasonably predictable, so he has tortious liability for it.

24

Civil Law (Wrongs) Act 2002 (ACT) Chapter 4. Elissa, S 2017, ‘Injuries to Nurses and Carers by Lifting Patients Incorrectly- HLS’, hlshealthcare, 5 December 2017, viewed 25 July 2019, . 25

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Conclusion All the aspects of the tort of negligence rules were examined. It came to a conclusion that Mr. Robert committed a tort of negligence to Ms. Ryder. As a result, Ms. Ryder can successfully sue him and make him compensate her for the injury.

ISSUE 5 Tracey Ryder v Westfield Shopping Center. Legal issue Did Westfield Shopping Center have tortiously liability to Ryder since the Shopping center did not take appropriate action against the slippery floor in the Common Area which led to Ryder’s injuries.

Legal rules – Application Considering the tort of negligence, three elements must be taken into account: Duty of care (DOC), Breach of DOC, and Causation26. First of all, the relationship between Ryder and Westfield Shopping Center at the time the incident happened was occupier and guest, which was listed in the categories of DOC. Therefore, the defendant owed the plaintiff the duty of care. Second, the four components required in SOC (cited above in the case between Tracy Ryder v The 5-years-old girl) is applied to determine did the defendant breach the DOC. Regarding the probability of harm, the injuries cause by the fall on a slippery floor in the mall can be serious, thus, the probability is high. Likewise, the seriousness of harm is also high since the fall could cause serious trauma or even mortality. In contrast to the cost of precaution, as the shopping center just needed to train its sanitation staff more carefully. There was no social utility because the shopping center made profits out of its customers. Finally, the gap between liquid spelling and Ryder’s incident is rather short, hence, the Westfield Shopping Center did breach the DOC.

Conclusion According to occupier’s liability rules, Ryder has shown that the Westfield Shopping center committed a tort of negligence and the shopping center also needed to compensate for Ryder’s injuries. Hence, Ryder can successfully sue the Westfield Shopping Center.

26

Civil Law (Wrongs) Act 2002 (ACT) Chapter 4.

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SCENARIO 3. ISSUE 1 Thi Ngoc Hien Vo v Hoa. Legal issue The main legal issue is whether Ms. Hoa, the defendant, commit Tort of negligence toward Ms. Vo, the plaintiff when she carelessly dropped a water bucket causing Ms. Vo’s injury. The minor legal issue is whether Thu Phung Desserts is vicariously liable for Ms. Hoa’s conduct.

Legal rules – Application According to the legal issue, three elements must be examined thoroughly: Duty of Care (DOC), breach of DOC, and Causation27(cited above in the case between Summer v Charles). Firstly, based on the DOC requirement, the plaintiff and defendant are outside of required relationship categories, so the “neighbor test” was applied to assess two requirements: whether the defendant’s conduct had potentially harmful to others and whether the defendant’s action affected closely or directly the plaintiff28(cited above in the case between Summer v Charles). Dropping a bucket of water without cleaning or prober warning people around could result in the slippery floor and injured people nearby, including Ms. Vo. Consequently, Ms. Hoa owes Ms. Vo DOC. Secondly, based on breach of DOC, four aspects of the Standard of Care must be considered: Probability of harm, Seriousness of harm, Cost of precaution, and Social Utility 29(cited above in the case between Summer v Charles). In this situation, Ms. Hoa dropped a bucket of water on the floor during the working hour of the shop; there is a high possibility that a customer walking pass by will trip on it. The seriousness of the injury is medium since most injuries are related to sprains or skin-deep wounds30. However, the cost of precaution is low since Ms. Hoa only needs a little time to clean up the water or put a warning sign nearby. The social utility for not cleaning the puddle is not recognized since Ms. Hoa did not have a reason not to clean up. Hence, a reasonable person would have taken some measures to avoid causing harm. This is due to the high probability of harm, medium seriousness of harm, low cost of precaution, and no social probability in no...