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Student Number: First name: Last name: Curtin Law School DEFERRED EXAMINATION End Of OUA Study Period 3, 2020 BLAW1001 BUSINESS LAW Question 1: Four Step Process question Step 1: Identify the legal issue. The issue in this case is whether Justine can successfully obtain court order for her to use James Scott’s paintings at GMA. In case, she fails to obtain court order, what remedies will be available for Justine? Step 2: Explain the principles of law relevant to that issue with reference to authority. A contract may be terminated based on a few elements: performance, agreement, frustration and illegality. There is a specific area called the ‘ready, willing and able’ rule. This is applied when a party is unable to perform due to action from other parties. If the other party refuse to comply due to the terms of contract, then the ‘perform’ party is free of charge, and may as well as sue the other party for damages, or seeking for remedies. (Graw, 2018) We can look at case of Mahoney V Lindsay (1980) 33 ALR 601. Mahoney agreed to sell to Lindsay two blocks of land and business conducted on it, then later Mahoney refused to complete the transfer due to lack of tendered payment from Lindsay. Lindsay sued Mahoney. Court ruled Lindsay was entitled to enforced the agreement even though he had not tendered payment. For breaching contract, there are always consequences. The innocent party may seek for remedies and sue for damages. In general rule, whether the breach is actual or anticipatory, the innocent party must either tender performance or be ‘ready, willing and able’ to perform. If not, the non-breaching party is not classified as ‘innocent’. This is essential. Refusal or prevent performance is classified as breach of the contract. (Graw, 2018) The case Foran v Wight (1989) 168 CLR 385; 88 ALR 413; [1989] HCA 51 is an example. A contract for sale of land was executed and deposit had been paid. Settlement day had been confirmed as 22 June 1983. However, 2 days before the settlement date, the purchaser had not obtained finance and so was not able to settle on 22 June 1983. The vendor’ solicitor said that settlement could not take place since a right of way has not registered as contract’s requirement. There was no communication between both parties and their solicitor. On 24 June, the purchaser revoked the contract. Since the purchaser was not being able to complete the contract due to their lack of finance, was they entitled to revoke the contract? Would ‘ready, willing and able’ rule apply? The High Court held that the purchaser was entitled for revoking and got his deposit refunded. Because since the vendor has failed to 1

settle on 22 June as the contract required, the purchaser knew and did not take any further step to acquired finance. When there is a breach of contract, the party has the right to seek remedies for damages. When actual damages are proved, substantial damages may be awarded. An innocent party will be entitled to recover damages for the loss of a commercial opportunity. This is to put the party back to position before damages happened. (Graw, 2018) We can look at the case Lindley v Silverbrook Research Pty Ltd [2009] NSWDC 396. Lindley was employed by Silverbrook. Her employment contract stated that level of remuneration would be reviewed annually. Even though it did not state Silverbrook will increase her salary annually, Lindley is entitled for annual performance bonus. Silverbrook introduced her to their client as a high value employee and never criticised her performance. However, she never received any bonus or her salary had never been reviewed. The issue is whether Silverbrook breach employment contract with Lindley by failing to review and assess her entitlement to a bonus. Was Lindley entitle for damages for loss of opportunity? The court ruled that given Lindley as good quality employee with highly satisfaction performance should have given bonus if any assessment had undertaken, according to the term of contract. Therefor the court awarded her $74,000 Damages. However, measure of damages will be taken to determine value for awarded to innocent party. It bases on market value and diminution of value. When market value is undertaken, the real number may be more or less compared to contract price. If the value the plaintiff received less than that bargained or paid for, plaintiff may ask to have deficiency cured. (Graw, 2018) Innocent party can also bring up heads of damage to court if there is damages to business reputation. In Flamingo Park Pty Ltd v Dolly Dolly Creations Pty Ltd (1986) 65 ALR 500, Flamingo Park sued Dolly Dolly Creations for breaching contract that affecting their reputation. The court ruled Flamingo Park was entitled to damages for loss of reputation in a situation where the term of agreement purported to safeguard reputation of the company. Step 3: Apply the law to the fact of questions. James Scott and Justine agreed with each other terms of agreement and therefor, there is legal contract bind both of them together. However, James Scott made assumption based on untrue rumours and decided to withdraw himself out of the contract before clarifying circumstances with Justine. Justine was unable to perform her exhibition due to James Scott refused to give his paintings to Justine. Justine can bring up the ‘ready, willing and able’ rule. (Graw, 2018) His action prevented Justine Exhibition to take place on time. It also affecting her GMA’s reputation. Justine can seek remedies as heads of damages in court. (Graw, 2018) On our cases, Justine wishes that James Scott would have continue carry out his agreement so her exhibition can keep going on. It will prevent damages to her GMA’s reputation and financial damages. 2

Since James Scott decision was made based on untrue rumours, the element for clarifying circumstances is highly necessary. Considering if total damages James has to pay for Justine can go up to $166500, the measure of damages at court will based on this this contract price. (Graw, 2018) Step 4: Conclusion. In conclusion, there are enough evidence to support Justine in court in order to make James Scott exhibit his painting in GMA. If James Scott refused to do so, he will need to pay back Justine with approx. $166500 for her financial remedies and reputation damages.

Question 2: Four Step Process. Step 1: Identify the legal issue. 3

The issue in this question is determine liabilities of TPG manufacturer to damages cause by their product toward safety of children who used their services. Step 2: Explain the principles of law relevant to that issue with reference to authority Three elements of negligence are: Duty of care, Breach of duty, Damage. “Before duty of care exits, it must be reasonable foreseeable to the wrongdoer that others could be injured through his/her acts or omission – and plaintiffs must show that they belonged to the class of people who classified as being ‘at risk’.” (Graw, 2018) If the plaintiff injury is not reasonable foreseeable, it would be unreasonable to impose duty of care of defendant. As case of Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449; (2002) HCA 35. The plaintiff had been involved in a traffic accident. She was tested and her blood alcohol returned as nil, but the police officer recorded as 0.14. Her solicitor later corrected it for her but it cause her obsessed and developed psychiatric disorder. The question is whether her injuries had been reasonable foreseeable. The court rule it was not reasonable for her to develop psychiatric issue due to the police office wrongly recorded her blood alcohol reading. And the police officer had not been under duty of care to avoid causing her psychiatric damage. In order to success in negligence action, the plaintiff need to prove not only the defendant owe them duty of care, but also there has been breached of that duty. Breaching duty of care happened of the defendant does not do what a reasonable person would have done in the same situation. Case Flavel v South Australia (2008) 102 SASR 404; (2008) SASC 333, a group of school children were allowed to ‘race’ during their second training session. Flavel injured herself became a tetraplegic. The court ruled the state has breached its duty of care as they failed to prevent accident that was reasonable foreseeable. When determine a precaution, the court look forward to identity what a reasonable person would have done in the situation, not backward to what should have avoided to prevent particular accidents or injuries. When the “standard of care” failed to meet, the court will consider variety of elements, such as: the probability that the harm would occur if care was not taken, dangerous activity. The greater standard of care occur when children are among the ones that might get involved in accident. Case Lynch v Nurdin (1841) 1 QB 30; 113 ER 1041 is one example. It shows children are vulnerable and required extended care to ensure they are not injured. The precautions are required as such “reasonable person”. In some cases, the defendant may have to provide the possibility that person will not care for their own safety. As with case Nagel v Rottnest Island Authority, where the authority was held liable. The plaintiff must prove the defendant owed him/her duty of care and breached duty that cause loss, damage, injury. This is reflected in Civil Liability Acts.

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The last element is proving damage cause by defendant. Plaintiff need to prove any loss, injury or damage cause by lack of duty of care. Without that, there is no action. There are three elements in proving damage: the law recognise the damage, The breach was a necessary condition of the occurrence of the harm, It is appropriate that the scope of the defendant liability extends to the harm. As with case Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; (2006) HCA 15. The plaintiff sued the defendant for breaching duty of care when her mother was pregnant her, causing her severe congenital disabilities. Her mother contracted rubella during her pregnancy. The court ruled the doctor was not liability as plaintiff’s damage was not legally recognisable. It is impossible to compare her disability life to no life at all. Step 3: Apply the law to the fact of questions TPG has failed to provide extra care when supplied their product to these children. They didn’t provide any safeguard to extend safety for their client. Their clients are children which required extra guidance when using their playground product. Even though supervisor has been provided but it was not enough. Their product mostly made by wood and without safety net, Hiro fall after climbing on it. They also failed to provide material that safe to use outdoor under high temperature, causing suffered burn to Gabe. Their design also has problem when the timber which was holding the ships flag fall off and injure ChiCho. Lack of experience children supervisor cause Chevie got hit on the face when another kid slide down behind her. Step 4: Conclusion The liability for TPG is to pay medical treatment bills to the children family. They need to improve their products as same as provide experience supervisor to the family that hire their service, in order to avoid injuries to children.

List of Cases: Mahoney V Lindsay (1980) 33 ALR 601 Foran v Wight (1989) 168 CLR 385; 88 ALR 413; [1989] HCA 51 5

Lindley v Silverbrook Research Pty Ltd [2009] NSWDC 396 Flamingo Park Pty Ltd v Dolly Dolly Creations Pty Ltd (1986) 65 ALR 500 Tame v New South Wales (2002) 211 CLR 317; 191 ALR 449; (2002) HCA 35 Flavel v South Australia (2008) 102 SASR 404; (2008) SASC 333 Lynch v Nurdin (1841) 1 QB 30; 113 ER 1041 Nagel v Rottnest Island Authority Harriton v Stephens (2006) 226 CLR 52; 226 ALR 391; (2006) HCA 15 List Of Reference: Understanding Business Law – Stephen Graw (2018)

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