Commercial-Law-Group-Assignment -Luu Trung Nguyens 3752602 Trang Mai Phuongs 3741288 Nguyen Nam Khanhs 3817803-2-1 PDF

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Course Name Commercial LawCourse Code LAWLecture Name Esmira HackenbergGroup Assignment Team 45University location RMIT - Saigon CampusStudent Name and ID Luu Trung Nguyen (s3752602) Trang Mai Phuong (s3741288) Nguyen Nam Khanh (s3817803)Word Counts 3684words (Excluding references and titles)Due Dat...

Description

Course Name

Commercial Law

Course Code

LAW2447

Lecture Name

Esmira Hackenberg

Group Assignment

Team 45

University location

RMIT - Saigon Campus

Student Name and ID

Luu Trung Nguyen (s3752602) Trang Mai Phuong (s3741288) Nguyen Nam Khanh (s3817803)

Word Counts

3684words (Excluding references and titles)

Due Date:

Monday, 16:00PM, August 10th, 2020.

1

Table of Content Scenario 1: 1.1 Sarah v Charles........................................................................................

............3

1.2 Sam v Charles...........................................................................................

............4

1.3 Charles v Free...........................................................................................

......4&5

1.4 Sarah v Free..............................................................................................

......5&6

1.5 Sam v Frees...............................................................................................

............6

1.6 Sam v Fresh Fruit (vicarious liability)....................................................

............6

1.7 Sarah v Fresh Fruit (vicarious liability)..................................................

......6&7

Scenario 2: 2.1 Ryder v Westfield shopping center (WSC)..............................................

............7

2.2 Ryder v Robert...........................................................................................

............8

2.3 Ryder v a little girl.....................................................................................

............9

2.4 Ryder v the girl’s parents (vicarious liability).........................................

............9

2.5 Ryder v the girl’s parents (TON)..............................................................

.....9&10

2.6 Ryder v Tom...............................................................................................

..........10

2.7 Ryder v Woolworths supermarket (WS) (vicarious liability)................

..........10

2.8 Ryder v Westfield shopping center (WSC) & the girl’s parents

..........11

(vicarious liability)...........................................................................................

..........11

Scenario 3: 3.1 Vo v Hoa.......................................................................................................

...12&13

3.2 Vo v Ben.......................................................................................................

...13&14

3.3 Vo v Thu Phuong Deserts (TPD)................................................................

...14&15

3.4 Vicarious Liability (Vo v TPD)...................................................................

...15&16

1. Vo v Hoa..................................................................................................

..........15

2. Vo v Ben..................................................................................................

..........16

Scenario 4: 4.1 Gary v Jamala..............................................................................................

...16&17

4.2 Russel v Jamala............................................................................................

..........17

2

Scenario 1: 1.1) Sarah v Charles: a. Legal issue: The main scenario legal issue here is that Summers can sue Charles over Sarah’s injury under the Tort of Negligence (TON) for breaking her arm. Because Sarah is still a child and not old enough to take on legal actions, her father can act on her behalf. b. Legal rules and application: Neighbour Test is required to identify the legal range of this issue following Donoghue v Stevenson1 . It was reasonably foreseeable for the defendant’s actions to cause the plaintiff’s harm as he was carelessly driving over the speed limit results in his vehicle losing control thus creating reasonably foreseeable risks. The plaintiff was also closely affected by the defendant’s conducts. Sarah’s arm was broken directly because of Charles. Thus the Neighbour Test is satisfied, Charles owns Sarah the Duty of Care. Based on Wyong Shire Council v Shirt 2, the paper determines whether the defendant breached DOC. Following Bolton v Stone, the probability of harm is how likely someone will be injured3. The defendant was going over the speed limit and could easily lose control thus the probability of harm is high. Paris v Stepney Borough Council is used to examine the seriousness of harm which is also very high 4. Charles was going at the speed of over 100 miles per hour, hitting someone directly could result in fatal damage. Third factor follows Latimer v AEC 5. The  cost of taking precautions is low when it does not cost the defendant anything when he just needed to control his emotion and not go over the speed limit. There seems to be no social utility in this case. In conclusion, the defendant has breached the DOC toward the plaintiff. The defendant caused the plaintiff to suffer injury which was reasonably foreseeable. c. Conclusion: In short, Sarah can successfully sue over Charles over the Tort of Negligence.

1

 onoghue v Stevenson [1932] AC 562. D Wyong Shire Council v Shirt (1980) 146 CLR 40. 3 Bolton v Stone (1951) AC 850. 4 Paris v Stepney Borough Council (1951) AC 367. 5 Latimer v AEC (1953) AC 643. 2

3

1.2) Sam v Charles a. Legal issue: This case, Sam can sue Charles over TON. This case law is similar to Sarah v Charles. b. Legal rules and application: First is to establish DOC and the Neighbour Test is needed 6. The foreseeable risk was present when the defendant was going over the speed limit and the plaintiff was closely affected by the defendant’s action. Thus the defendant owns the plaintiff DOC. The defendant also breached such DOC toward the plaintiff by failing the RSOC 7. The probability of harm 8and the seriousness of harm 9 was high when driving over the speed limit. The defendant could have avoided the risk by going slow thus the cost of precaution is low 10. Social utility is not present here thus we can conclude that the defendant has breached the DOC by failing the RSOC. The defendant caused the plaintiff to suffer injury which was reasonably foreseeable. c. Conclusion: In short, Sam can successfully sue over Charles over the Tort of Negligence.

1.3) Charles v Free: a. Legal issue: The case law must examine whether Fred Free violates the TON toward Chad Charles. b. Legal rules and application: First, to determine whether the defendant owns the plaintiff DOC, the Neighbour Test is applied11. The defendant’s action can cause reasonably foreseeable risks and whether the plaintiff was closely or directly affected by it. Reasonably foreseeable risks were created when the defendant tried to cut ahead of Charles while both cars were both going at very high speed. Charles, the plaintiff was closely affected by Free action. The defendant owns the plaintiff the Duty of Care based on the Neighbour test.

6

Donoghue v Stevenson above n 1.  yong Shire Council v Shirt above n 2. W 8 Bolton v Stone above n 3. 9 Paris v Stepney Borough Council above n 4. 10 Latimer v AEC above n 5. 11 Donoghue v Stevenson above n 1. 7

4

The paper also determines whether the defendant breached DOC in which the defendant failed the RSOC towards the plaintiff 12. The probability of harm 13 is high, the act of forcefully merging lines while both cars were at a very high speed is very dangerous. The seriousness of harm was high when defendant action broke the plaintiff’s arm. Furthermore, it is obvious that the higher seriousness of harm, the higher RSOC 14. In addition, the defendant could have easily avoided harm just by driving slower than the speed limit and not merging into the lane while both cars were at high speed thus the cost of taking precautions is low15. Social utility is not present in this case, we can conclude that the defendant breached the DOC by failing the RSOC. The defendant caused the plaintiff to suffer injury which was reasonably foreseeable. In conclusion, the plaintiff could successfully win the case by the claim of Free committed TON toward Charles. Nevertheless, the defendant could potentially counter defense back by claiming contributory risk. The plaintiff was going over the speed limit, he was careless and did not hit the break when he was supposed to, which contributed to his injury. Going by the ruling of Ingram v Britten 16, Charles was also accountable for this injury thus this is a contributory negligence meaning Free could reduce his liability. c. Conclusion: At the end, Charles can successfully sue Free for TON but also has to share liability due to contributory negligence.

1.4) Sarah v Free a. Legal Issue: In this case, Sam represents Sarah to sue Free under the TON when he causes Chad Charles to crash and damage her. b. Legal rules and Application However, this seems to be unlikely that the plaintiff will win this case because despite that fact that driving over the speed limit could create foreseeable risks. The plaintiff was not directly affected by the defendant action but by a third party. The damage of the plaintiff was 12

 yong Shire Council v Shirt above n 2 W Bolton v Stone above n 3 14 Paris v Stepney Borough Council above n 4 15 Latimer v AEC above n 5 16 Ingram v Britten (1994) Aust Torts Reports 81-291. 238 13

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not foreseeable by the defendant, it was too remote for the defendant to see Charles will lose control of his truck and cause the plaintiff injury. c. Conclusion It was too remote for the defendant to take responsibility thus Sarah will not successfully sue Free under TON.

1.5) Sam v Free a. Legal Issue: This case is similar to the Sarah v Free as Sam can sue Free over TON. b. Legal rules and application The claim will not likely be successful even though driving at high speed could cause foreseeable risk, the plaintiff was not directly affected by the defendant. The damage was not foreseeable and it was too remote for the plaintiff to take responsibility. c. Conclusion It was too remote for the defendant to take responsibility thus Sam will not successfully sue Free under TON.

1.6) Sam v Fresh Fruit a. Legal issue: In this case, Sam can suit Fresh Fruit under the Vicarious Liability. b. Legal rules and application Following Century Insurance v Northern Island Road Transport Board 17, an harmful act was done within the “scope of employment”, from an employee’s action for the advantage of the employer. There was no evidence stating that Charles was on official task for Fresh Fruit thus no benefit involving Fresh Fruit. c. Conclusion Sam will fail to suit Fresh Fruit under the Vicarious Liability.

1.7) Sarah v Fresh Fruit a. Legal Issue:

17

Century Insurance v Northern Island Road Transport Board [1942] 72 Ll.L.Rep. 119 6

In this case, Sam can represent Sarah as she was too young to take on legal action to sue Fresh Fruit under the Vicarious Liability. b. Legal rules and application This case is similar to Sam v Fresh Fruit (1.6) in which there is no indication that Charlas was doing any authorized action for Fresh Fruit thus no benefit involved. c. Conclusion There is not enough legal range for Sarah to win this case law.

Scenario 2: 2.1 Ryder v Westfield shopping center (WSC) a. Legal issue: Whether Ryder can sue WSC under the TON for not cleaning soapy liquid on the floor which is a place occupied by WSC. b. Legal rules and application: The same legal rules as case 1 scenario 1:

Because the area of the accident was the area occupied by the WSC and Ryder is a customer. So, the relationship between Ryder and WSC is recognized by DOC as an occupier and guest 18

. Therefore, WSC owed Ms. Ryder a DOC.

The potential to hurt 19 is very high. Because that place is the common area of the shopping center, many people would walk around the accident area, there is a risk of a slippage being a possibility. The level of injury in this case is extremely serious 20. Soap liquid would lead people to fall and if this happens in the elderly it will lead to a risk of death. The cost of taking precautions 21 was low. WSC just needed to cleansing a patch of soap liquid, there are

18

N J  ames. Business Law. 4 ed. [2017]. 220 Bolton v Stone above n 3 20  aris v Stepney Borough Council above n 4 P 19

21

Latimer v AEC above n 5 7

no people would be harmed. Moreover, there is no social utility for this case. Thus, it can be concluded that WSC has breached the DOC. c. Conclusion Ryder can successfully sue WSC under TON.

2.2 Ryder v Robert a. Legal issue: Whether Robert owed Ryder a DOC is the first requirement under TON. b. Legal rules and application: The same legal rules as case 1 scenario 1: Ryder broke her left arm due to Robert's lifting action so he was the one who directly hurt Ryder22. Because of that, Robert owed Ryder a DOC.

Whether Robert violated the DOC towards Ryder is the second requirement. There are four factors. The probability of harm 23 was high. Robert lifted Ryder when she fell, and he couldn't determine if Ryder was injured so lifting her up was something that could potentially injure her. The likely seriousness of harm 24 also was high. Robert is not medical staff, he has no medical knowledge, so it is very high for him not to control the level of injury to the victim when moving or lifting the victim. The cost of taking precautions 25was really not too much money and extremely simple to do, he just called for an ambulance for her and asked the medical staff to lift her up. Therefore, Robert failed to meet the required SOC and breached the DOC.

c. Conclusion Ryder can successfully sue Robert under TON. 22

Donoghue v Stevenson above n 1

Bolton v Stone above n 3 Paris v Stepney Borough Council above n 4 25  atimer v AEC above n 5 L

23 24

8

2.3 Ryder v a little girl a. legal issue: Whether Ryder can sue a little girl under TON for spilling the soap liquid to lead she fell. b. Legal rules and application: The same legal rules as case 1 scenario 1: The relationship between Ryder and the little girl does not belong to the situation categories of DOC. Therefore, the neighbour test has to be applied. The action of spilling the soap liquid is clearly harmful 26. Therefore, the neighbour test is satisfied, the little girl owed Ryder DOC. However, because of 5 years old and not aware of how dangerous her action was, a little girl does not have to be responsible for her harmful act. c. Conclusion Ryder unsuccessfully sued the little girl under TON.

2.4 Ryder v the girl’s parents (vicarious liability): a. legal issue: Whether Ryder can sue the girl’s parent under vicarious liability for their child action b. Legal rules and application: The same legal rules as case 6 scenario 1 Although the girl was not aware of how dangerous her action was , the girl’s parents have to be responsible for her action 27. Moreover, the act of the girl led to Ms. Ryder fell and compromised her ability to be a dancing teacher. c. Conclusion Ryder can successfully sue the girl’s parents under vicarious liability.

2.5 Ryder v the girl’s parents (TON) a. Legal issue: Whether Ryder can sue the girl’s parents under TON when their child was the cause of Ryder's incident. b. Legal rules and application: 26

Donoghue v Stevenson above n 1

27

C  entury Insurance v Northern Island Road Transport Board above n 17 9

The same legal rules as case 1 scenario 1: The relationship between Ryder and the girl’s parents does not belong to the situation categories of DOC. Thus, applying the neighbour test is a requirement. The act of their daughter is potentially harmful to Ryder 28. So, they owed Ryder a DOC. The probability of harm 29 is medium. Creating a patch of soap liquid would hurt people walking around that area. The likely seriousness of harm 30 is high. Because that area is the common area in the shopping center, it is easy to cause accidents. The cost of the precaution 31

is low. They just needed to take care of their child, the accident would not happen.

Therefore, they failed to meet the required SOC and breached the DOC. c. Conclusion: Ryder can successfully sue the girl’s parents under TON. 2.6. Ryder v Tom: a. Legal issue: Whether Ryder can sue Tom under TON when He opened the bottle of soapy liquid for the 5-year-old child that made Ryder fall. b. Legal rules and application: The same legal rules as case 1 scenario 1. The relationship between Ryder and Tom does not belong to the situation categories of DOC. Because of that, the neighbour test has to be applied. Opening a bottle of soap liquid for a little girl is potentially dangerous 32. Therefore, the neighbour test is satisfied, Tom owed Ryder DOC. The probability of harm 33 is medium. Opening the soap bottle would hurt the girl or people around her when the little girl does not know the dangers of the soap bottle. The likely seriousness of harm34 is high because The little girl was not aware of how dangerous the soap bottle was. She could drink it or spill it on the floor. It's really easy to hurt people around her and herself so the cost of the precaution 35 is low. Tom needs to tell her how dangerous the 28

Donoghue v Stevenson above n 1

Bolton v Stone above n 3 Paris v Stepney Borough Council above n 4 31  atimer v AEC above n 5 L 32  onoghue v Stevenson above n 1 D 33  olton v Stone above n 3 B 34  aris v Stepney Borough Council above n 4 P 35  atimer v AEC above n 5 L

29 30

10

soap bottle was or do not open it for her. Social utility is not present. Therefore, Tom failed to meet the required SOC and breached the DOC. c. Conclusion: Ryder can successfully sue Tom under TON.

2.7 Ryder v Woolworths supermarket (WS) (vicarious liability) a. Legal issue: Whether Ryder can sue WS under vicarious liability because Tom (the employee of WS) opened the soap bottle for the little girl.

b. Legal rules and application: The same legal rules as case 6 scenario 1: Tom did commit TON towards Ryder. Addition to, Tom is an employee of the WS. Selling the product is a duty of Tom in working hours, this is made profit for WS. Thus, WS needs to be responsible for Tom’s action 36. c. Conclusion Ryder can successfully sue WS under vicarious liability. 2.8 Ryder v Westfield shopping center (WSC) & the girl’s parents (vicarious liability) a. legal issue: Whether Ryder can sue the WSC under vicarious liability for the girl’s parents b. Legal rules and application: The same legal rules as case 6 scenario 1 The girl’s parents did commit vicarious liability towards Ryder. However, they were not WSC employees. Moreover, taking care of their child did not create profit for WSC. So, WSC did not have to be responsible for their actions.

c. Conclusion Ryder can not successfully sue the WSC under vicarious liability.

36

Century Insurance v Northern Island Road Transport Board above n 17

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Scenario 3: 3.1 Vo v Hoa: a. Legal issue: The legal issue is whether Hoa violated a TON by dropping t...