Commercial Law Assignment 2 (HD) PDF

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LAW2447 Commercial Law

Assessment Task 2

TEAM PAPER

Class Time: Tuesday – 11:30 a.m. Lecturer’s Name: Son Nguyen Tan

SEM C 2019

TABLE OF CONTENTS SCENARIO 1 ...................................................................................... 2 1.

Peter v Evan ................................................................................................................... 2

2.

Peter v Reid .................................................................................................................... 3

SCENARIO 2 ...................................................................................... 4 1.

Tom v James ................................................................................................................... 4

2.

Tom v Blackrock Café .................................................................................................... 5

3.

Tom v the Breakers ........................................................................................................ 5

SCENARIO 3 ...................................................................................... 6 1.

Loan v Tung ................................................................................................................... 6

2.

Loan v Nha Trang Jump Society..................................................................................... 6

3.

Huy v Loan ..................................................................................................................... 7

4.

Huy v Tung ..................................................................................................................... 8

5.

Huy v Nha Trang Society Jump ...................................................................................... 8

6.

Loan v Trinh................................................................................................................... 9

7.

Huy v The hospital.......................................................................................................... 9

SCENARIO 4 .................................................................................... 10 1.

Trevan v Issac ............................................................................................................... 10

2.

Issac v Trevan............................................................................................................... 10

3.

Trevan v Olivia ............................................................................................................. 11

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SCENARIO 1 Peter and Evan drank a lot of alcohol, but Reid was the only one who didn't. So, Reid truly would be a driver, but he gave up that position to Evan because of Evan’s intimidation and assault. Additionally, Evan drank a lot of alcohol, so he could not control the steering wheel leading an accident for Peter broken his fractured neck.

1.

Peter v Evan

Did Evan (the defendant) owe Peter (the plaintiff) a DOC? If so, did Evan breach the DOC for causing an accident of broking Peter’s neck? Since, the relationship between Evan and Peter is unrecognized, therefore the "Neighbor Test" 1 is applied. Because Evan consumed a large quantity of alcohol before driving so obviously, he lost control of the steering and it conducted potentially harmful Peter. Also, both of them sit in the same car and Peter can be directly and closely affected by Evan’s conduct. Therefore, the neighbor test is satisfied, Evan owed Peter a DOC. Next, deciding whether Evan breached a DOC to Peter based on four factors 2 is necessary. Firstly, the probability of harm3 is high because basically, Evan drunk a lot of alcohol, the loss of control of the steering as well as the wrong ability to control the car is certain to happen. Secondly, the likely seriousness of harm4 is medium to high, it can be seen that Peter suffered a fractured neck and traffic accident may life-threatening for Peter. Next, if Evan did not insist on driver’s seat, the accident would not occur, hence, the cost of taking the precaution 5 is easy and cheap. Lastly, the defendant’s action made no harmful to society so social utility6 is not mentioned. Hence, Evan breached the DOC to Peter for his action.

Nevertheless, Peter was the partial defence of the danger. It is clear that Peter unbuckled his seatbelt at the time of the accident, which is considered as the main factor leaded to injuries. So, Peter did this action negligently. Besides, Peter also consumed too much beer, tired and

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Donoghue v Stevenson [1932] AC 562 Section 9(2) of the Civil Liability Act 2003 [34] 3 Bolton v Stone [1951] AC 850 – the probability of harm 4 Paris v Stepney Borough Council [1951] AC 367 – the seriousness of harm 5 Latimer v AEC Ltd [1953] AC 643 – the cost of taking precaution 6 Watt v Hertfordshire County Council [1954] 1 Wlr 835 CA – social utility 2

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could not be bothered moving, he even didn’t give complaints. At this point, Peter's negligence contributed to his injury. Consequently, Peter can sue Evan successfully under tort of negligence and based on the Contributory Negligence Defence7, Evan can partly reduce his liability.

2.

Peter v Reid

Whether Reid (the defendant) owed Peter (the plaintiff) a DOC? And whether Reid breach DOC to Peter? The relationships between Peter and Reid is unrecognized, therefore we apply the “Neighbor test”8. The defendant’s action is potentially harmful to the plaintiff because Reid left to driver’s seat and give it to Evan to drive, who had consumed a large quantity of alcohol and with fine suspension in the past. Moreover, Reid and Peter also sit on the same car, so it closely and directly affects on the plaintiff, hence, Reid owed Peter a DOC. To decide whether Reid breached the DOC to Peter, we consider four requirements 9. Firstly, the probability of harm10 is high because Peter called out for Peter that Evan had under fine suspension and he had drunk a large of alcohol. Therefore, when Reid gave the driver’s seat for Evan, it can be seen that the accident occurred is very easy and high. Next, the likely seriousness of harm11 is medium to high because Peter suffered a broken neck injury and it can severely lead to higher death due to the intoxicated driver which the ability of awareness is low. Then, it was clear that Reid could ignore the threats and not give the driver seat to Evan, the accident would not happen, which the cost of taking precaution12 is easy and cheap. Lastly, there is no social utility13. Hence, Reid breached the DOC to Peter. However, Contributory Negligence Defence14 could be applied for Reid, Peter already aware of dangerous but he removed the seatbelt and resulted in injuries. Therefore, the defendant can apply this rule to reduce his liability.

7 8 9 10 11 12 13 14

Ingram v Britten (1994). Donoghue v Stevenson [1932] AC 562- cited above Section 9(2) of the Civil Liability Act 2003 [34]- cited above Bolton v Stone [1951] AC 850 – the probability of harm- cited above Paris v Stepney Borough Council [1951] AC 367 – the seriousness of harm- cited above Latimer v AEC Ltd [1953] AC 643 – the cost of taking precaution – cited above Watt v Hertfordshire County Council [1954] 1 Wlr 835 CA – social utility – cited above Ingram v Britten (1994).

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Overall, Peter can sue Reid successfully under the breaching of DOC and Reid can defence by Contributory Negligence Defence to reduce liability.

SCENARIO 2 At about 12:30 a.m. on Saturday 10 June 1995, Tom visited Blackrock Café with his friend. It was actually a nightclub where there was a band – the Breakers, who regularly played lively music here. When the band called “Jump” in their song, people were dancing and jumping. Unfortunately, there was an accident in which James (a man in the crowd) waved his hands and the leapt the lighting grids, making it loose and fell on Tom. Consequently, Tom suffered significant soft-tissue injuries to his neck and spine.

1.

Tom v James

Whether the defendant (James) owed the plaintiff’s (Tom) a DOC? And if yes, did he breached the DOC for causing severe injuries to Tom? Since the defendant and the plaintiff have no recognized relationship, ‘Neighbor Test’15 should be done. They were at the same situation and James waved his hand, leapt out at the lighting grids, crashing it down on Tom’s head, which means the defendant closely and directly affected the plaintiff. Hence, James owed Tom a DOC. In order to determine whether James breach the DOC and be responsible for the Tom’s injury, four elements should be considered16. Firstly, the probability of harm17 is high because James was leaping the lighting grids, that force might affect the grids becomes loose and basically it is easy to crash down to anyone nearby. Secondly, the likely seriousness of harm18 is medium, as injuries caused by grids made Tom suffered the serious damage regarding his neck and spine. Thirdly, since the defendant could choose not to dance excitedly to avoid the risk, so the burden of taking precaution19 is easy and cheap. Finally, the defendant’s conduct brought no usefulness to the society so there is no social utility20 in this case. Shortly, Tom can successfully sue James under the breaching of DOC. 15

Donoghue v Stevenson [1932] AC 562 at 580 – cited above Section 9(2) of the Civil Liability Act 2003 [34]- cited above 17 Bolton v Stone [1951] AC 850 – the probability of harm- cited above 18 Paris v Stepney Borough Council [1951] AC 367 – the seriousness of harm- cited above 19 Latimer v AEC Ltd [1953] AC 643 – the cost of taking precaution – cited above 20 Watt v Hertfordshire County Council [1954] 1 Wlr 835 CA – social utility – cited above 16

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2.

Tom v Blackrock Café

Whether the defendant (Blackrock Cafe) owed the plaintiff’s (Tom) a DOC? And if so, did they breach the DOC? In this case, the defendant and the plaintiff have recognized relationship which is “Occupier - Visitor” so Blackrock Café owed Tom a DOC. Since the DOC is obvious, four elements 21 should be analyzed to determine if Blackrock Cafe breach the DOC and be responsible for the Tom’s injury. Regarding the probability of harm22, it is at high level because the fact is that the wire cable frayed or broke so, especially it was only hocks on the ceiling rather than fixedly hanged on, so it is easy to cause accidents when the grids were able to swing. Next, the likely seriousness of harm23 is medium, in which Tom had been injured by the crashing of the loose cables. Besides, it is evident that the cost of precautions24 is cheap and easy because two or three days after the incident, the lighting grids was re-fixed by using eyehooks and a chain to prevent the slipping off the hooks. This can be considered that the Cafe’s owner could expected the accident, but they just fixed it until the accident occurred. Lastly, the social utility25 is not examined in this case since the defendant’s action brings no benefits to the society. Therefore, Tom can successfully sue the Blackrock Cafe under the DOC.

3.

Tom v the Breakers

Whether the plaintiff’s (Tom) can sue the defendant (the Breakers) under the breaching of DOC? As there is no recognized relationship between the defendant and the plaintiff so ‘Neighbor Test’26 should be conducted. They were at the same situation, but the Breakers did not directly and closely caused Tom’s accident, hence, they do not owed Tom a DOC so Tom cannot sue them for breaching the DOC.

21

Section 9(2) of the Civil Liability Act 2003 [34]- cited above Bolton v Stone [1951] AC 850 – the probability of harm- cited above 23 Paris v Stepney Borough Council [1951] AC 367 – the seriousness of harm- cited above 24 Latimer v AEC Ltd [1953] AC 643 – the cost of taking precaution – cited above 25 Watt v Hertfordshire County Council [1954] 1 Wlr 835 CA – social utility – cited above 26 Donoghue v Stevenson [1932] AC 562 at 580 – cited above 22

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SCENARIO 3 In this scenario, Loan consumed four beers and began to feel dizzy making her to walk and fall off the sidewalk and caused an accident with Trinh (the driver of a car using a phone), causing Loan a bruised arm. After that, since she just received certificate and want to train parachute, she came to Nhan Trang Jump Society and meet Minh (the manager). Then he managed her to practice with Tung, even though he received some complaints about Tung recently. When Tung and Loan were descending through the air, Tung had forgotten the attached clip between him and Loan. Additionally, Loan was just a 3-hour trainee, it is difficult to control parachute with her bruised arm so then she hit the ground hard and broke legs severely. Simultaneously, Huy (a parachute trainee) was standing on the ground, he was tangled in the parachute cords and suffered serious facial and eyes injuries.

1.

Loan v Tung

Whether the defendant (Tung) owed the plaintiff (Loan) the DOC, and did Tung breached the DOC to the plaintiff by causing her injuries? Since the DOC is obvious, four elements 27 should be analyzed. Regarding the probability of harm28, it is high because Tung forgot to attach the clip and Loan was new to this game accompanied with playing by her bruised arm, so it easily causes incident. Next, the likely seriousness of harm29 is low to medium, since Loan had broken her legs. Besides, the cost of precautions30 could be easy because Tung could be more careful to avoid risk, but he didn’t. Lastly, there is no social utility31. Therefore, Loan can sue the Tung under breaching the DOC.

2.

Loan v Nha Trang Jump Society

There are two legal issues would be examined: (1) whether the defendant (Nha Trang Jump Society) owned the plaintiff’s (Loan) the DOC, (2) whether the defendant is vicariously liable for Loan’s injury. There is the recognized relationship between the defendant and plaintiff which is “Occupier – Guests”32. Hence, Nha Trang Jump did owe Loan a DOC.

27

Section 9(2) of the Civil Liability Act 2003 [34]- cited above Bolton v Stone [1951] AC 850 – the probability of harm- cited above 29 Paris v Stepney Borough Council [1951] AC 367 – the seriousness of harm- cited above 30 Latimer v AEC Ltd [1953] AC 643 – the cost of taking precaution – cited above 31 Watt v Hertfordshire County Council [1954] 1 Wlr 835 CA – social utility – cited above 32 James, 2017, Business Law 4th ed., page 220 28

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Furthermore, in order to determine whether the defendant took the vicarious liability, three requirements 33 must be identified namely: (1) Tort must be committed, (2) Must be committed by the employee and (3) Must be in the course of employment. In this case, Tung was in “Employer – Employee” relationship with Nha Trang Jump, he was taking tasks under the benefits of the employer and actually he committed tort (Loan’s accident). Therefore, the defendant was vicariously liable for Loan’s injury.

3.

Huy v Loan

Whether Loan (the defendant) owed Huy (the plaintiff) a DOC? If so, did Loan breach the DOC of causing the plaintiff’s facial and eye injuries? The relationship between Huy and Loan doesn't fall into the establish categories of DOC, hence, the “neighbor test”34 is applied. Loan’s action is potentially harmful to Huy because when Loan fell from above with uncontrolled of her parachute, it got entangled in Huy. Resulting in the plaintiff dragged 10 meters above the ground, causing serious injuries to his face and eyes. Therefore, it clearly be seen that Loan’s action is potentially harmful, closely and directly to Huy, hence, Loan owed the DOC to Huy. To decide whether Loan breach her DOC. Firstly, the probability of harm 35 is high because Loan's coach is Tung, who has received lots of complaints about sketchy training. In addition, Loan had previously been injured in the bruised arm, so her control was limited and receiving many complaints from customers may show that Tung's negligence is very likely to happen, hence, it can lead to occur an accident is high. Secondly, the likely seriousness of harm36 is medium because Huy suffered face and eye injuries. It can be considered not harmful as well as threaten to life. Next, the cost of taking precaution37 is difficult because Loan did not expect someone there and was only trained in 3 hours, which means she doesn't enough experience as well as skill to solve and control any trouble when jumping. Lastly, there is no social utility38. Therefore, in this case, Loan owed Huy a DOC by causing damage to the face and eyes of Huy, but the defendant not breach DOC to the plaintiff.

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Greene, B 2013, 'Chapter 12 Vicarious liability', Course Notes: Tort Law, Taylor and Francis, London. Donoghue v Stevenson [1932] AC 562 at 580 – cited above 35 Bolton v Stone [1951] AC 850 – the probability of harm- cited above 36 Paris v Stepney Borough Council [1951] AC 367 – the seriousness of harm- cited above 37 Latimer v AEC Ltd [1953] AC 643 – the cost of taking precaution – cited above 38 Watt v Hertfordshire County Council [1954] 1 Wlr 835 CA – social utility – cited above 34

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4.

Huy v Tung

Whether the defendant (Tung) owed the DOC to the plaintiff (Huy) and if so, whether Tung breached the DOC to the plaintiff by causing Huy’s injuries. The relationship between Huy and Tung is not recognized, hence we apply “Neighbor test”39. Tung's action is potentially harmful to the plaintiff because he forgot to attach two large steel clips between him and Loan so due to his mistake, Loan can't control through the air. Because of Loan only a trainee with 3 hours. So, in this, the defendant's conduct directly and closely affected on Huy and in this case, Tung owed the DOC to Huy. Regarding whether Tung breached the DOC to the plaintiff by causing Huy’s injuries. Firstly, the probability of harm40 is medium because the defendant had a highly experience parachute instructor, but he was also complained by many customers about Tung's rush training. So, the chance to occur was medium. Secondly, the likely seriousness of harm41 is medium because Huy only suffered facial and eye injuries, so it doesn't life-threatening to the plaintiff. Next, the cost of taking precaution42 is easy and cheap. It can be seen that Tung only need more careful when training parachute trainee and more focus to avoid distracted and an accident would not occur. Lastly, there is no social utility43. Therefore, Tung breach the DOC to Huy by causing Huy's face and eye injuries and Huy can sue Tung under tort of negligence.

5.

Huy v Nha Trang Society Jump

Whether Nha Trang Jump Society (the defendant) breached the DOC to Huy (the plaintiff) and whether the defendant is vicariously liable for Huy’s injury? The relationship between the defendant and the plaintiff is recognized as “Occupiers – Guests”44, hence, the defendant owed Huy a DOC However, to identify whether the defendant took vicariously liable for Huy’s injury due to their employee’s action (Tung). There are 3 requirements that we need to clarify (1) be responsible for harm and consequences caused by other, (2) Occur in the employer-employee context and (3) Harmful actions are performed within the “scope of employment” 45. It can be seen that the relationship between Minh and Tung is “employer – employee” and Tung was

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Donoghue v Stevenson [1932] AC 562 at 580 – cited above Bolton v Stone [1951] AC 850 – the probability of harm- cited above 41 Paris v Stepney Borough Council [1951] A...