Commercial Law A2 SGS 08 Team 47 PDF

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ASSIGNMENT 2: COMMERCIAL LAWSubject Code: LAW 2447 Subject Name: Commercial Law Location & Campus RMIT Vietnam, SGS Class Group / Team SGS-08 / Team 47 Student ID S S S Student Name Tran Gia Minh Nguyen Hoang Khang Nguyen Huynh Thuy Trang Lecturer Name Dr. Estela Gutierrez Rodriguez Word counts ...

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ASSIGNMENT 2: COMMERCIAL LAW

Subject Code: Subject Name: Location & Campus Class Group / Team Student ID

LAW 2447 Commercial Law RMIT Vietnam, SGS SGS-08 / Team 47 S3836310 S3836309

Student Name

S3880303 Tran Gia Minh Nguyen Hoang Khang

Lecturer Name Word counts

Nguyen Huynh Thuy Trang Dr. Estela Gutierrez Rodriguez 3970 words

Table of Contents LIST OF ACRONYMS...................................................................................................................3 SCENARIO 1:................................................................................................................................3 *Tortious liability.......................................................................................................................3 1. Ned (plaintiff) v Sara Quick (defendant).........................................................................3 2. Quick (plaintiff) v Dr.Duy (defendant).............................................................................4 3. Quick (plaintiff) v The Oakleigh hospital (defendant)....................................................5 4. Ned (plaintiff) v the company (defendant).......................................................................6 *Vicarious liability.....................................................................................................................7 5. Ned (plaintiff) v the company (defendant).......................................................................7 6. Quick (plaintiff) v the hospital (defendant).....................................................................8 SCENARIO 2:................................................................................................................................8 *Tortious Liability......................................................................................................................8 1. Tung (plaintiff) v Chu (defendant)....................................................................................8 2. Binh (plaintiff) v The hospital (defendant)......................................................................9 3. Tung (plantiff) v The Blackrock Café’s Ownwer (defendant)......................................11 4. Binh (plaintiff) v Tung (defendant)................................................................................12 SCENARIO 3a *Contract Law...............................................................................................12 1. Gorden (plantiff) v Outback Burger (defendant)......................................................12 2. Sam (plaintiff) v Outback Burger (defendant)...........................................................14 SCENARIO 3b..............................................................................................................................15 1. Carl (plaintiff) v Direct (Defendant)...........................................................................15 2. Carl (plaintiff) v Opera (Defendant)...........................................................................15

LIST OF ACRONYMS DOC: Duty of care NT: Neighbour Test

SOC: Standard of care TON: Tort of Negligence VL: Vicarious Liability CN: Contributory Negligence

SCENARIO 1: *Tortious liability 1. Ned (plaintiff) v Sara Quick (defendant) Legal Issues Whether Ned can successfully sue Quick for her violation of the “Tort of negligence” (crucial issue) and the defendant Quick breached a DOC to the plaintiff (Ned) Duty of Care In the case of the “NT”1, it is reasonable to expect that Quick in the throng would be damaging to others. Furthermore, Quick actions had a direct impact on Ned. As a result, the exam was passed, and Quick owed Ned the DOC. Breach of Duty of Care The case Blake v Galloway2 and Hackshaw v Shaw3 are applied. There are four requirements analyzed to justify whether Quick breached DOC according to 4,5,6and7. Firstly, as the scooter’s brake cannot work well when driving in store, driving scooter in store and then raising speed will easily cause crash. Therefore, the probability of harm is high. Secondly, she suddenly lost control and hit Ned by a scooter and cause the victim a broken leg. However, the worst case is unlikely to cause death. Therefore, the likely seriousness of harm is medium. Thirdly, the burden of precaution is low and easy simply by slowing down to walking speed and observe the 1 Donoghue v Stevenson (1932) AC 562 2 Blake v Galloway [2004] 3 All ER 315 3 Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662- 663 4 Bolton v. Stone [1951] AC 850. 5 Paris v Stepney Borough Council [1951] AC 367. 6 Latimer V AEC LTD [1953] AC 643 at [193]. 7 Ward v London County Council [1938] 2 All ER 341

surrounding carefully. After analyzing the four requirements, Quick and Ned failed to meet the required standard of care and breached their duty of care. Conclusion In conclusion, Ned can successfully sue Quick under TON for his suffered injuries.

2. Quick (plaintiff) v Dr.Duy (defendant) Issues Whether Quick can sue Dr. Duy under TON for not informing her the risk of sympathetic ophthalmia before the operation (crucial issue) and whether the plaintiff could be contributory negligent to this accident (subordinate issue). Duty of Care The first issue is to identify “whether Dr.Duy owed Quick a DOC”. The relationship between Dr. Duy and Quick obviously falls within Established categories of DOC, doctors-patients relationship, stated in Rogers and Whitaker8. Therefore, Dr.Duy owed Quick a DOC. Breach of Duty of Care To determine whether Dr.Duy breached the DOC, four criteria were examined. Firstly, the probability of harm is low because Quick's right eye procedure has a risk of affecting her left eye of about 1:1400, and not all cases result in blindness in the affected eye. Despite the low probability of harm, the severity of harm is significant because Quick went almost completely blind, which means she will remain blind for the rest of her life, lowering her psychology, impairing her daily routine and career, and preventing her from being a normal person. Thirdly, the cost of precautions is quite easy and inexpensive, such as informing Quick about the danger of sympathetic ophthalmia before the operation, so she may decide whether to have the surgery or not. Furthermore, the precaution was required and had to be carried out by Dr.Duy as a doctor's responsibility. The last factor is social utility which is not crucial in this scenario as it

8 Rogers and Whitaker (1992) 175 CLR 479

was not the act useful for society. As a result, Dr. Duy failed to fulfill the requisite SOC and breached the DOC by failing to act as a reasonable doctor. Defence According to Ingram v Britte9, there is no contributory negligence defense because it is reported that Quick had constantly questioned the doctor about the various complications of operation, including the risk of sympathetic ophthalmia. She was just a patient with several injuries who knew nothing about medicine, especially the operation's effects on her left eye, which she wanted to ask the doctor about. Dr.Duy was required to notify the plaintiff of all potential complications and hazards, but the defendant failed to do so carefully. As a result, Quick cannot be criticized for not specifically inquiring if the operation on her right eye might have an impact on her left eye. Conclusion: Dr. Duy committed TON and Quick can sue successfully him under TON

3. Quick (plaintiff) v The Oakleigh hospital (defendant) Issue The crucial issue is whether Sara Quick can successfully sue Oakleigh Hospital under TON when they hire a doctor who did not graduate from Melbourne Medical School and let him operate for Quick which led to Quick’s eye injuries. The subordinate issue is whether Quick could be contributory negligent to this accident. DOC The first issue is whether the Oakleigh hospital owed Quick a DOC. Based on Australian Safeway Stores Pty Ltd v Zaluzna10, the defendant obviously owed the plaintiff a DOC because there is a straightforward relationship between occupiers (the Oakleigh hospital) and entrants (Quick). Breach of DOC

9 Ingram v Britten [1994] Aust Torts Reports 81-291 (p.238) 10 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.

The following factors are examined in determining if the defendant breached the DOC. Firstly, the probability of harm is First, the probability of harm is likely low to medium due to the reason that the probability of hospital would not check the doctor background is low. Moreover, in this case, he was well-known for his dexterity, which means he had rehearsed and saved the lives of several people. However, the seriousness of harm is significantly high. Even though a very skillful doctor has experience in saving people life, but in fact, did not graduate from Melbourne Medical School meaning we cannot guarantee his talent and knowledge and he may lack of knowledge in some areas and as a result, may put patients into dangerous situation. Thirdly, the cost of taking precautions was simple and inexpensive, such as patiently spending more time to examine the doctor’s background. Finally, it has high social utility because the hospital was in desperate need of doctors at the time, and Dr. Duy was a capable physician who they could not dismiss. There could have been a lot of unsaved individuals if they hadn't hired him. Quick could, however, change doctors or go to a different hospital with minimal restrictions if the restoration of his right eye's vision is not urgent. Therefore, the defendant breached DOC they owed the plaintiff due to his failure to meet SOC. However, according to case Cork v Kirby MacLean 11and Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound)12 causation successfully established since without the hospital’s carelessness, the accident would not happen due to Dr. Duy’s conduct. Additionally, remoteness was reasonably foreseeable due to the reason that the hospital hasn’t carefully checking the background of their doctor. Hence, unqualify doctor hired can cost failed operation creating dangerousness to patient. Conclusion: Quick can sue the hospital under TON because harm caused by breach was satisfied.

4. Ned (plaintiff) v the company (defendant) Legal Issue Whether Ned can sue company under Ton for providing Quick incorrect riding scooters technique which Quick applied in this case, suffering from serious eye injury and breaking Ned’s leg DOC Whether the company owed Ned a DOC. The company obviously owed the plaintiff a DOC since an occupier who is the owner of a property has the responsibility to ensure safety for people such as the plaintiff based on 10 (cited above) occupiers-entrants relationship. The 11 Cork v Kirby MacLean Ltd [1952] 2 All ER 402 12 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound) [1961] AC 388

company’s conduct was potentially harmful, as they required Quick to run the scooters with uneasily controlling brake as a reasonable providing vehicles company should not have done. It was predictable that providing incorrect scooters-riding technique could make the clients injured after running it, particularly broken leg here. However, Quick was the one who closely and directly bumping into Ned and causing injuries. Therefore, the company did not owe a DOC Conclusion: Ned cannot sue the company under TON because Ned was not the ‘neighbor’ of the company

*Vicarious liability 5. Ned (plaintiff) v the company (defendant) The legal issue is whether the company was vicariously liable toward the case between Ned v Quick According to Century Insurance v Northern Ireland Road Transport Board 13, an employer is vicariously liable for damages incurred by the negligence of the employee if this harmful act was carried out within the job area. In this case, Quick is a part time employee, she was performing approved job for the company's advantage. Thus, the company was vicariously liable for Quick’s actions. In conclusion, Quick can sue the company under vicarious liability successfully, which will be more advantageous for Ned because the company will have more probability to pay compensation than Quick (employee).

6. Quick (plaintiff) v the hospital (defendant) The legal issue is whether the Oakleigh hospital was vicariously liable toward the case between Quick v Dr.Duy

13 Century Insurance v Northern Island Road Transport Board [1942] 72 LI.L.Rep. 119.

Regarding 12 (cited above), if the harmful act was done within the "work field," an employer is vicariously responsible for damages caused by the employee's negligence. Dr. Duy was doing his duty as a doctor working at a hospital in unauthorized manner. He did not tell Quick about the risk before operation resulting in inflammation and sympathetic ophthalmia in his left eye. Additionally, the hospital owned non-delegable duty of care to its patient – Quick according to Roe v ministry of Health14. The duty of care extends to negligent acts and not to intentionally harmful by Dr. Duy. Therefore, the hospital was vicariously liable for Dr. Duy’s actions.

In conclusion, Quick can successfully sue the hospital under vicarious liability, which will bring more benefits for Quick than suing Dr. Duy due to higher probability to receive indemnification.

SCENARIO 2: *Tortious Liability 1. Tung (plaintiff) v Chu (defendant) Issue The crucial issue is whether Chu owes a DOC to Tung because his action on the lighting grid directly led to Tung’s injuries. The subordinate issues are whether Chu has breached the DOC and Chu can ask for CN. DOC The first problem is to find out if Chu owes Tung a DOC. With the application of the ‘NT’ of

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(cited above). It can be confirmed that the defendant owes the plaintiff a DOC. At first, it was foreseeable for Chu that the accident would occur if he did not perform reasonable action. Waving hands and leaping out at the lightning grid was foreseeably harmful to other people. In this case, Tung was directly injured by Chu’s action (suffering from significant soft tissue to his neck and spine). Therefore, the test is satisfied, Chu owed Tung the DOC.

14 Roe v ministry of Health [1954] 2 QB 66

Breach of DOC There are four requirements analyzed to justify whether Chu breached DOC. Firstly, everyone knows that someone would injure if that person did not aware of obstacles falling from the ceiling. Moreover, the bar’s lighting is casually dim to stimulate the atmosphere, which in this case that Chu leaping around and might crash with people when he uncontrolling himself. So, the possibility of harm is medium. Next, in the situation that an accident occurs, the falling of the lighting grid obviously cause the victim to suffer from mild to severe injury. The worst case is likely to cause death. Therefore, the likely seriousness of harm is medium. Thirdly, the burden of taking precautions is cheap and easy because the defendant can simply request the band to notify the guests before reaching the chorus line and control himself from doing what a reasonable person would do in this situation. Finally, social utility in this case is not important. After analyzing the four requirements, Chu failed to meet the required SOC and breached DOC. Conclusion In conclusion, Tung can successfully sue Chu under TON for his suffered injuries.

2. Binh (plaintiff) v The hospital (defendant) Issue The main issue is whether Binh can successfully sue the hospital under TON for letting the stairs being slippery so that the plaintiff walked through on the way to the hospital garden and fell, resulting in his injuries. The subordinate issue is whether Binh could be contributory negligent to this accident.

DOC The first issue is whether the hospital owed Binh a DOC. The hospital obviously owed the plaintiff a DOC since an occupier who is the owner of a property has the responsibility to ensure safety for people such as the plaintiff based on

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(cited above) occupiers-guests relationship and

the defendant needs to make preventions for not to cause harm to others15. 15 Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [45].

Breached of DOC There are factors that needed to be analyzed for determining whether the hospital breached DOC. Firstly, the probability of harm is medium because it was foreseeable that anyone could using the floor and stairs and suffer accidents such as falling down the stairs without any notice before the cleansing hours. This means the stairs are daily closed until 7am to prevent others entering while people rarely using at that time and 7am is regular opening time since the hospital was established. Secondly, the likely seriousness of harm is significantly high as an abrupt fall caused by slippery could cause a terrible injury. It could have led to the death if he had not founded out on time. Yet, Binh broke his arm in this case. Thirdly, the cost of taking precaution is cheap and easy in this case by putting a warning slippery sign to prevent patients walking through and get injure. Moreover, the hospital can quickly move the cleansing time toward a little earlier for that day in order to protect their patients. Lastly, there is no social utility issue in this situation. Hence, the hospital failed to do what a reasonable hospital would have done in the circumstances (failed to meet SOC), therefore, they breached DOC they owed Binh. Defence According to civil liability legislation of Ingram v Britten16 (cited above), if the plaintiff contributed to their own injury, liability will be appointed between the defendant and the plaintiff. In this case, Binh could raise his contributory defense because he should have known that yesterday was heavy raining which led to the slippery floor and stairs, so he must take good care of himself and being more careful in the next morning. Hence, the plaintiff was also negligent along with the defendant’s negligence. Conclusion: Binh will not totally successful in suing the hospital. The liability will be appointed between the plaintiff (50%) and the defendant (50%) because both of them were negligent.

3. Tung (plantiff) v The Blackrock Café’s Ownwer (defendant) Issue The crucial issue is whether the defendant owes a DOC to Tung because they did not provide enough safety equipment for the crowd size event of 500 people, which indirectly lead to Tung’s

injuries. The subordinate issues are whether Blackrock Café’s owner has breached the DOC and if the causation and the remoteness tests are satisfied. Besides that, The Blackrock Café could ask for CN.

DOC The first issue is whether the Café's owner owed Tung a DOC. Based on

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(cited above), the

Blackrock café obviously owed the plaintiff a DOC because there is a direct relationship between occupiers (the Blackrock Café’s owner) and guest (Tung)

Breach of DOC There are four requirements analyzed to justify whether the Blackrock Café breached DOC. Firstly, the possibility of harm is low since reasonable persons rarely expect the lighting grid to crash do. Moving to likely seriousness, the seriousness is medium as the plaintiff was hitting by the light and the worst case would not cause the plaintiff to death. Next, the burden of taking precautions is cheap because they can simply use eyehooks and a chain to fix the equipment before the accident happens. Social utility, in this case, is not important. Although the possibility and seriousness of harm the low and medium rate, the precautions are simple and cheap. For this factor, the defendant breached DOC because it failed to behave as a reasonable bar owner. However, according to11and

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(cited above), causation and remoteness were not successfully

established since without the owner’ carelessness, the accident still happened due to Chu’s conduct. Moreover, the defendant did not directly cause injury to Tung. Conclusion In conclusion, Tung cannot suc...