Business-law teampaper-196 PDF

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Assignment 2

TEAM PAPER Course Name

Business law

Course Code

Law2447

Team Number

196

Tutorial Group

13

Lecturer’s Name Son Nguyen Tan Team Member

Ha Gia Bao – S3911732 Doan Thi Thanh Hang – s3881225 Do Thi My Anh – S3915017

Word count

4178

TABLE OF CONTENT 1. SCENARIO 1 1.1 Wesley v McHorton’s staf.................................................1 1.2 Wesley v McHorton............................................................1 1.3 Wesley v Dr. Smith.............................................................2 1.4 Wesley v Dr. McCoy...........................................................3 1.5 Wesley v The hospital........................................................3 1.6 Wesley v Beverly...............................................................4 2. SCENARIO 2 2.1 Hung v Saigon University..................................................4 2.2 Hung v Tung.......................................................................5 2.3 Hung v Swimming Training VN...........................................6 2.4 Hung v Mai................................................................................. 7 2.5 Mai v Tung.........................................................................7 2.6 Mai v Saigon University.............................................................8 3. SCENARIO 3 3.1 Steed v McDougall.....................................................................8 3.2 McDougall v Steed....................................................................................9 3.3 Dougall v Australia Post...................................................10 3.4 Joe v Steed......................................................................11 3.5 Joe v McDougall...............................................................12 3.6 Joe v Australia Post.................................................................................12 4. SCENARIO 4 4.1 Nicholas v Petra...............................................................12 4.2 Henry v Nicholas..............................................................13 4.3 Petra v Hugo....................................................................13 5. BIBLIOLOGY.............................................................................15

LIST OF ACRONYMS: DOC: Duty Of Care NT: Neighbour Test VL: Vicarious Liability SGU: Saigon University AP: Australia Post STV: Swimming Trainning Vietnam POH: Probability Of Harm LSOH: Likely Seriousness of Harm COP: Cost Of Precaution SU: Social Utility

Scenario 1 1.1 Wesley v McHorton’s staf Whether McHorton’s staf (the defendant) owed Wesley (the plaintif) a DOC? If yes, additionally, did McHorton breach a DOC for causing the accident of Wesley’s thigh? The relationship between the defendant and the plaintif is “Manufacturer - Consumer''.1 Therefore, McHorton’s staf owed Wesley a DOC. To determine if McHorton’s staf breached a DOC to Wesley, it is necessary to analyse four factors2. Firstly, the POH is high because the lid of the hot cofee was not tightened so the liquid is certainly spilled out leading to the burn injury.3 Secondly, the LSOH is medium to high because Wesley sufered a skin burn on his right thigh, which may contribute to skin infection and problems with bones and blood vessels, especially leg disability.4 Thirdly, if McHorton’s staf tightened the lid of the hot cofee more carefully, the accident would not happen so the COP is easy and cheap.5There was no SU in this case.6 Consequently, McHorton’s staf breached the DOC to Wesley. The defendant's conduct is reasonably foreseeable contributing to the plaintif’s injuries. Overall, Wesley could sue McHorton’s staf under TON. Wesley

has

contributory

negligence

because

of

his

carelessness

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contributing to his injury. At first, he had already seen the loose lid of the cofee but not tightened it. Moreover, he did not notice the warning sign on the cup. Therefore, it is a reasonable defense that McHorton could partly diminish its liability. 1.2 Wesley v McHorton

1 2 3 4 5 6 7

Hawkins v Clayton (1988) 164 CLR 539. Civil Liability Act 2003 (Qld) s 9(2). Liebeck v McDonald’s Restaurants (1995) WL 360309. Paris v Stepney Borough Council (1951) AC 367. Latimer v AEC Ltd (1953) AC 643. Watt v Hertfordshire Country Council (1954) 1 Wlr 835 CA. Ingram v Britten (1994) ATR 81.

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Two established legal issues are if McHorton (the defendant) owed the DOC to Wesley (the plaintif) and whether the defendant has vicarious liability to the plaintif. As the relationship between both parties is the category of “Manufacturer - Consumer”, McHorton owed Wesley a DOC.8 Following that, three satisfied elements should be analysed if Wesley endured the vicarious liability from McHorton.9 Within the scope of employment, the staf is an employee of McHorton. Additionally, his conduct of negligence occurred during the performance of authorized tasks, which brings benefits to the employer. Therefore, Wesley could sue McHorton under VL. Considering contributory negligence defense,10 Wesley’s carelessness contributed to his injury because he did not tighten the lid of the cofee cup carefully and notice the warning sign on the cofee cup. Consequently, McHorton could minimise its VL. 1.3 Wesley v Dr. Smith Did Dr. Smith (the defendant) owe Wesley (the plaintif) a DOC? If so, did Dr. Smith breach DOC for causing Wesley’s injuries? Dr. Smith and Wesley have a “Doctor-Patient” relationship. 11 Hence, Dr.Smith owed Wesley a DOC The POH12 is low because the forgetting of providing MRI rarely happen. Next, the SOH is medium to high because it makes the injury worse, especially leading to the thigh’s disability. Next, the SOH is medium to high because it makes the injury worse, especially leading to the thigh’s disability. Then, the COP is easy,13 compared to the harm cost of Wesley’s injury. Lastly, social utility about Dr. Smith’s conduct is not mentioned because Dr. Smith’s careless action of saving another patient is not 8 Hawkins, above n 1. 9 Century Insurance v Northern Island Road Transport Board (1942) AC 509. 10 Ingram, above n 7. 11 Rogers v Whitaker (1992) 175 CLR 479. 12 Bolton v Stone (1951) AC 850. 13 Latimer, above n 5.

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accepted as the skill degree of a reasonable doctor.

14

Consequently, Dr.

Smith owed Wesley a breach of DOC. In addition, the defendant action is reasonably foreseeable contributing to the plaintif’s injuries. Overall, Wesley could sue Dr. Smith under TON.

1.4

Wesley v Dr. McCoy

If Dr. McCoy (the defendant) owed Wesley (the plaintif) a DOC? Additionally, whether Wesley could sue Dr McCoy under breach of DOC? The relationship between Dr. McCoy and Wesley is defined as “Doctor Patient”.15 Consequently, Dr. McCoy owed Peter a DOC. Firstly, there was a low POH because there is no evidence to proof that McCoy’s conduct have occured regularly16. Then, similar to Dr. Smith’s case, the SOH is high.17

Next, the COP is cheap and easy since the

defendant asked Dr. Smith about Wesley’s injury to provide an MRI test for him.18 Finally, the social utility is not available because Dr. McCoy’s conduct did not give advantage to society.19 Therefore, Dr. McCoy owed Wesley a breach of DOC Furthermore, the conduct of Dr. McCoy is reasonably foreseeable that he caused Wesley’s injury. To conclude, Dr. McCoy committed a TON to Wesley. 1.5 Wesley v The hospital Whether the hospital (the defendant) owed the DOC to Wesley (the plaintif)? Then, if yes, did the hospital have the vicarious liability for Wesley’s injury?

14 15 16 17 18 19

Bolam v Friern Hospital Management Committee (1957) 2 ALL ER 118 Rogers, above n 11. Bolton, above n 13. Paris, above n 4. Latimer, above n 5 Watt, above n 6.

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The established category relationship between the hospital and Wesley is “Occupier - Guest”.20 Consequently, the hospital owed Wesley a DOC. To determine if the defendant is vicariously liable to the plaintif’s injury because of its employees’ conduct (Dr. Smith and Dr. McCoy), three requirements should be clarified.21 In this case, Dr. Smith and Dr. McCoy are employees of the hospital and they were working there as authorised tasks during office hours when the incident happened. Their actions of negligence bring benefits to their employers. Consequently, Wesley could sue the hospital VL.

1.6 Wesley v Beverly The legal issue is whether Beverly (the defendant) owed the DOC and breached a DOC to Wesley (the plaintif). The category relationship of DOC between Beverly and Wesley is not identified so the NT is necessarily examined.22 The defendant’s conduct was not potentially harmful to the plaintif because it was legal to accelerate driving at the high speed onto the highway, even though this conduct closely and directly impacted on Wesley. Therefore, Beverly did not owed the DOC and breach of DOC to Wesley.

Scenario 2 2.1 Hung v Saigon University The legit issue is whether Hung can sue SGU under TON as the entrances opened before access time? In this lawsuit, the relationship between Saigon University and Hung is determined as " Occupier- Guest”,23 which means that the defendant owns DOC with the plaintif.

20 21 22 23

Australian Safeway Stores Pty Ltd v Zaluzna (1987 162 CLR 479 Century Insurance, above n 9. Donoghue v Stevenson (1932) AC 562. Australian, above n 23.

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Due to the clear DOC, the analysis will be conducted to recognize whether SGU breached the DOC. First and foremost, take four factors of precaution into consideration.24 POH is low as there is no precedent mentioned in SGU 's swimming pool.25 In spite of the low POH, the severity level of harm of Hung is high and it may be fatal, which means that the LSOH is high. 26 In comparison to the loss, the COP is quite simple and inexpénive, 27 such as placing a big notice that the opening time is 7.30 am and closing all entrances carefully before that time but they did not. In addition, SGU did not have the SO as there is no positive contribution. 28 Furthermore, the significant harm to Hung is undeniable and the harm is reasonable foreseeability. In conclusion, because SGU breached the TON, Hung can successfully sue SGU with these mentioned pieces of evidence. Defense: Hung has contributory negligence to his accident in this case. Actually, Hung have eaten a large meal 30 minutes before swimming, which means that he did not notice his health as29 swimmer only need to avoid eating too full, and waiting for an hour . Thus, Hung contributed to his accident as he carelessly in ensure his health. Thus, SGU is not entirely responsible for Hung's injuries. 2.2 Hung v Tung This case has two legal issues that need to be addressed. The first issue is whether Tung owed Hung DOC and could successfully take Tung to court. The relationship between Hung and Tung did not belong to the established DOC category, the Neighbor Test must be implemented.30 In this case, Tung’s ignorance directly afected Hung's life and Hung is Tung's neighbor

24 25 26 27 28 29 30

Civil, above n 2. Bolton, above n 13 Paris, above n 4. Latimer, above n 5. Watt, above n 6. Ingram, above n 7 Donoghue, above n 25

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as Tung is the lifeguard of the SGU's swimming pool where Hung's accident occurred. Thus, Tung owed Hung DOC. Four SOC rules will be applied.31 Because of the severe cramps in his limbs, it may be difficult for POH to keep his head above water and thus cause him to become unconscious.32 As lethality may be unavoidable in this situation, the LSOH is also elevated.33 In addition, the COP is low because Tung is a lifeguard, and he could easily rescue Hung in this case, but he refuses.34 Because Tung initially ignored Hung despite finally performing CPR to help him, there is no SO in this case.35 Furthermore, the harm caused by Hung is entirely predictable. Thus, Hung can sue Tung successfully. The second question is whether Saigon University bears VL for Tung's behavior. Citing from Century Insurance v Northern Island Road Transport Board [1942], We need to see "scope of employment" 36 to determine if the employee make mistake and this can afect the employer or not. Firstly, Tung must be employer of SGU. The second condition, the employer need to do their authorised work in their working hour. Obviously, Hung came to the pool early and it was not time for Tung's work, so the second condition did not satisfy. Therefore, SGU does not has vicarious liability for Tung's action. 2.3 Hung v Swimming Training VN This case also comprises two legal issues. The first case is Hung wants to know if he has a case against Swimming Training VN under TON.

31 Australian, above n 23. 32 Bolton, above n 13 33 Paris, above n 4. 34 Latimer, above n 5. 35 Watt, above n 6. 36 Century Insurance, above n 9

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In the established category, this relationship between Hung and swimming training is not included. As a result, the neighbor test is being used 37. Because Hung's injuries were caused directly by the incorrect training he received from STV. Because of this, STV owed Hung DOC money. Hung's (plaintif) life is directly afected by the poor CPR procedure, thus the POH and LSOH are extremely high. Evidence shows that STV educated its employees to press on the chest just 50 times per minute, resulting in broken ribs and punctured lungs for Hung, instead of the proper CPR procedures of pressing on the chest 100 times per minute (proven by scientists in 2001). The COP is minimal because an organization can easily and inexpensively reorganize fresh training. In this case, the SU does not have a stake. As a result, Hung has legal grounds to sue Tung under the TON. Another question is whether Hung and Swimming training have any VL. In this case, Hung was hired and trained by STV (Century Insurance v Northern Ireland Road Transport Board). The plaintif sufers harm when the CPR method is incorrect, and here is where he swim. As a result, STV bears VL for Tung's failure to complete his work because they supplied an inadequate approach. 2.4 Hung v Mai The main issue is whether Hung can sue Mai under TON as Hung's injuries. The relationship between Hung and Mai is belong to non-establish category and the “Neighbor test” is applied. Although she did not know how to swim, she still jumps into pool, which result in Hung’s right eye beared serious harm. Thus, Mai owed Hung DOC. SOC is taken again to judge this case.38 POH and LSOH is high as she is a non- swimmer, so when she try to rescue his boyfriend, it is obviously impossible.39 37 38 39 40

40

However, the COP is high as it is unable to a non swimmer

Donoghue, above n 25 Civil, above n 2. Bolton, above n 13 Paris, above n 4.

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to rescue people in water.41 Especially, SO is extremely high as Mai's act come from the purpose of saving her boyfriend life and no intention to do harm to Hung.42 Therefore, Hung can not sue Mai successfully under TON. 2.5 Mai v Tung Because of Tung's (the defendant's) disregard for Mai's partner, the real question is whether she may bring a TON claim against him for her injuries. Mai and Tung's relationship falls within the "non-establishment" category, hence the "neighbor test" is applicable.43 To begin, Mai's inability to swim was exacerbated by her hasty rescue attempt, which pushed her to jump in to save Hung. Consequently, Tung must pay Mai DOC since Mai's actions are directly influenced by Tung's, and the potential of harm is obvious. SOC is taken again to examine this case.44 POH and LSOH is extremely high as the plaintif is unable to swim, but tries to plunge into the pool to rescue her boyfriend.45

46

Obviously, the saving is fail as well as she can be

submerged by the victim and drown might be unavoidable. The COP is low as it is easy for a lifeguard (defendant) to rescue her boyfriend, 47 and there is no SO in this situation.48 In addition, the plaintif's harm is reasonably foreseeable. Therefore, Mai can sue Tung successfully. 2.6 Mai v Saigon University Did the defendant (Saigon University) owe the plaintif’s (Hung) a DOC? And, if that's the case, did they own DOC for Mai’s injuries? 41 Latimer, above n 5. 42Watt, above n 6. 43Donoghue, above n 25 44 Civil, above n 2. 45 Bolton, above n 13 46 Paris, above n 4. 47 Latimer, above n 5. 48 Watt, above n 6.

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It can be examined that the relationship between Mai and SGU is “Occupier- Guest '', so the DOC is established.49 Like the lawsuit between Hung and SGU, it can be concluded that Mai can sue SGU successfully.

Scenario 3 3.1 Steed v McDougall The legal issue is whether Mr. McDougall committed TON by reversing out of a driveway carelessly, and whether Mr. Steed contributed to his injuries. Since the parties' relationship has been established, McDougall and Steed's DOC categories are: "Motorist - Road user".50 As a result, the defendant owed the plaintiff a DOC. Because the DOC is obvious, four elements should be examined to determine whether McDougall violated the DOC and caused Steed's injury. The POH was low because McDougall and Steed had not been involved in any accidents in many years. 51 The LSOH, on the other hand, was high because the accident could result in serious injuries or even death.52 Next, Mr. McDougall could easily eliminate the risk by reversing into his driveway and driving cautiously out into the street, resulting in a low COP. 53 There is no SU in this location.54 The SOC is dissatisfied,55 and McDougall has violated a DOC to Steed. Furthermore, McDougall caused Steed to sustain injuries that were reasonably predictable. Finally, Mr. Steed can successfully sue Mr. McDougall under TON. Defence: Because Mr. Steed played a role in his accident, a similar legal rule for CND could be applied in the Mr. McDougall v Mr. Steed case.56 Mr. Steed was at fault for the accident because he continued to ride his motorcycle despite seeing the car from two metres away. McDougall’s car is broken and he has to spend money to fix. As a result, Mr. McDougall's liability may be reduced if the CND is successful.

49 Australian, above n 23. 50 Civil, above n 2. 51 Bolton, above n 3. 52 Paris, above n 4. 53 Latimer, above n 5. 54 Watt, above n 6. 55 Civil, above n 2. 56 Ingram, above n 7.

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3.2 McDougall v Steed This case has two legal issues: The first legal issue is whether Mr. Steed owed Mr. McDougall a DOC and, by continuing to ride his motorcycle, breached that DOC. Mr. Steed owed Mr. McDougall a DOC because their relationship established a DOC category: motorists – road user.57 Failure to yield to other vehicles as a driver could result in a fatal accident; thus, POH was high.58 Because someone could be killed in the event of an accident, LSOH was also high.59 Mr. Steed's motorcycle easily stopped when he saw the car from two metres away, so the COP was low.60 There was no SU in this case61. Mr. Steed failed to meet the required SOC,62 and breached a DOC to Mr. McDougall because he did not act in the manner that a reasonable person would have in the same situation. Mr. Steed caused Mr. McDougal's car to be damaged in a way that was reasonably predictable. Finally, Mr. Steed did a TON of damage to Mr. McDougall. Mr. McDougall's second legal issue is whether he can sue Mr. Steed under the TON for using the incorrect avoidance technique; the sub-issue is whether Mr. Steed contributed to his accident. Mr. Steed owed Mr. McDougall a DOC for the same reason that he owed Mr. McDougall a DOC in the previous case.63 The POH was high because incorrect avoidance techniques resulted in a fatal accident.64 As a result, the LSOH was high because swerving without enough space ahead could cause serious injuries or even death.65 Mr. Steed's COP, on the other hand, was d...