LAW2447 S12021 SGS ASM2 Team-53 PDF

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LAW2447_S1.2021_SGS_Assignment 2_Team 53

ASSESSMENT TASK 2 – TEAM PAPER Semester A, 2021

Course Code:

LAW2447 (Commercial Law)

Team Number:

Team 53

Tutorial Class/ Group:

Activity 3_Monday 3:00 PM_SGS

Lecturer’s Name:

Dr Son Nguyen Tan

Team Members’ Name & ID: Nguyen Hoang Bao Ngoc

s3878632

Le Thi Mai Thao

s3864168

Luu Doan Phuong Thao

s3864180

Word count:

3735 words (excluding headings, footnotes)

The due day:

19 Apr 2021

1

LAW2447_S1.2021_SGS_Assignment 2_Team 53

TABLE OF CONTENTS ABBREVIATIONS--------------------------------------------------------------------------------------2 I.

SCENARIO 1:-----------------------------------------------------------------------------------3

1.

Manny v Harry:-------------------------------------------------------------------------------------------------------3

2.

Manny v Ray:---------------------------------------------------------------------------------------------------------4

3.

Manny v Walstore:---------------------------------------------------------------------------------------------------5

4.

Manny v Walstore (vicarious liability):---------------------------------------------------------------------------6

5.

Manny v Mickey & Minnie:----------------------------------------------------------------------------------------7

II.

SCENARIO 2:-----------------------------------------------------------------------------------7

1.

Local v Great Lake Shopping Mall:-------------------------------------------------------------------------------7

2.

Local v Great Lake Shopping Mall (vicarious liability):------------------------------------------------------8

3.

Local v Whiz:----------------------------------------------------------------------------------------------------------8

4.

Whiz v Ace Firework:------------------------------------------------------------------------------------------------9

5.

July v Local:---------------------------------------------------------------------------------------------------------10

6.

July v Whiz:----------------------------------------------------------------------------------------------------------11

7.

Local & July v Denning:-------------------------------------------------------------------------------------------12

8.

Local & July v Collins Multidisciplinary Clinic (Vicarious Liability):-----------------------------------13

III.

SCENARIO 3:---------------------------------------------------------------------------------13

1.

Abel Movers (AM) v Cain Construction Co Ltd (CCC):----------------------------------------------------13

2.

Basil v Algernon:----------------------------------------------------------------------------------------------------14

Abbreviations Duty of care (DOC) Standard of Care (SOC) The tort of negligence (TON) 2

LAW2447_S1.2021_SGS_Assignment 2_Team 53 I.

Scenario 1: 1. Manny v Harry: The legal issue is whether Harry owned Manny a Duty of Care (DOC) and breached

that DOC for causing Manny's fall and injuries by grabbing Manny's elbow. The subordinate is whether Manny voluntarily assumed the risk of getting injured in the Mall. As the relationship between Manny and Harry is not recognised 1, Neighbour Test is performed.2 When Harry attempted to enter a 150-people crowd, he should be aware of the potential risk of hitting others. In a shopping rush, Harry's behaviour could have a direct and close impact on other shoppers. The Neighbour Test is now satisfied; Harry owned Manny a DOC. The examination of Standard of Care (SOC) to determine whether Harry breached the DOC is essential, as stated in the Civil (Wrongs) Act 2002 (ACT). 3 Harry completely disregarded Manny's safety by jumping over him to continue the hunt. Thus, Harry breached his DOC to Manny and failed the Reasonable Person Test.4

Besides, the Probability of Harm that Manny would get injured is high since the massive influx of customers during the sales rush could cause trampling accidents. 5 The Likely Seriousness of Harm is exceptionally high. Besides getting injured by the hard fall, the victim would find it impossible to get up from the ground if no rescue is provided. Eventually, the stampede could worsen the original injuries or even lead to fatal cases. However, the Cost of Precautions, including stopping to help Manny, is easy and unburdened.6 Also, no Social Utility was accounted for Harry's conduct.7 As a result, Harry failed to achieve a SOC as a reasonable person in that situation.

1 James, N 2014, Business Law, 4th edn., Wiley, ProQuest Ebook Central database. 2 Donoghue v Stevenson [1932] AC 562. 3 Civil (Wrongs) Act 2002 (ACT) pt 4.2 s 43. 4 Wrongs Act [1958] (Vic) s 48(1). 5 Bolton v Stone [1951]. 6 Latimer v AEC [1953]. 7 Watt v Hertfordshire County Council [1954]. 3

LAW2447_S1.2021_SGS_Assignment 2_Team 53 The plaintiff's injuries caused by the defendant were reasonably foreseeable. Hence, Manny can successfully sue Harry under the Tort of Negligence (TON) for breaching the DOC he owned towards Manny.

Defence: Harry might reject all liabilities towards Manny and ask for Full Defence. He could argue that, while chasing in the crowd with around 150 people, Manny should have voluntarily assumed the risk of falling or even suffering from severe injuries. 8 However, Harry's ignorance to help Manny breached the primary SOC, regardless of his fault. Harry’s argument might be partially credible, but his liability could not be cleared entirely. Thus, the Full Defence failed. 2. Manny v Ray: The legal issue is whether Ray owned Manny a DOC and breached that DOC by rescuing Manny and causing Manny additional injuries. On the other hand, the subordinate should be concerned with whether Ray could apply for a defence. The Neighbour Test will be applied as there was no established relationship between the two parties.9 In this case, Ray was a college student applying for a sales position without prior experience as a security guard. Because of the lack of medical understanding, Ray grabbed the victim out of the crowd and unexpectedly posed latent dangers to Manny. Ray's conduct affected Manny closely and directly, so he owed Manny a DOC. 10 Manny could blame Ray’s lack of essential first-aid's knowledge and skills for making him worse than originally. Ray might apply the Reasonable Person Test to argue that in that circumstance, even a reasonable person would prioritise saving Manny's life without any considerations of potential risks.11 However, his contention fails as this only applies to people with sufficient skills. Ray's negligent conduct was potentially harmful to Manny. Hence, Ray owned Manny a DOC.

8 Insurance Commissioner v Joyce [1948]. 9 James, above n 1. 10 Donoghue, above n 2. 11 ACT, above n 3; Civil Liability Act 2002 (NSW) s 5B(1); Civil Liability Act 2003 (Qld) s 9(1); Civil Liability Act 1936 (SA) s 32(1); Civil Liability Act 2002 (Tas) s 11(1); Wrongs Act 1958 (Vic) s 48(1); Civil Liability Act 2002 (WA) s 5B(1).

4

LAW2447_S1.2021_SGS_Assignment 2_Team 53 Relied on the Civil (Wrongs) Act 2002 (ACT), the Probability of Harm is high. 12 In the absence of basic first-aid knowledge, Ray could easily commit serious mistakes that endangered the victim's life.13 The Likely Seriousness of Harm is also high. As Manny was in a vulnerable situation, a wrong step in assistance could significantly worsen the initial injuries.14 The Cost of Precautions is easy and inexpensive as Ray could seek additional help to dismiss the crowd and immediately call an ambulance.15 Besides, no Social Utility relates to Ray's conduct. Hence, Ray breached a DOC to Manny. Furthermore, the defendant's conduct, which caused Manny to suffer injuries, was reasonably foreseeable. Overall, Manny could successfully sue Ray under the TON by the defendant's breach of the plaintiff's DOC. Defence: Ray might ask to clear all liabilities towards Manny because a reasonable person would do the same. However, this claim failed since neither the plaintiff's Voluntary Assumption of Risk. 3. Manny v Walstore: The legal issue is whether Walstore owned Manny a DOC and breached that DOC by failing to ensure their customers' safety. The sub-issue is whether Manny voluntarily assumed the risk of being injured.

The incident occurred within the Mall where Walstore is an occupier, while Manny is a guest. According to Australian Safeway Stores Pty Ltd v Zaluzna [1987], the occupier has responsibilities to avoid foreseeable risks of injury to other people within the occupied area. 13 Thus, Walstore owned Manny, an established DOC. As hundreds of people enter the Mall via only one entrance without any guides provided, the Probability of Harm is high.14 Furthermore, the Likely Seriousness of Harm is high as Walstore has no procedures to ensure customers' safe shopping experiences could result in severe injuries or even fatal.15 Despite the severe consequences, the Cost of

12 ACT, above n 3. 13 Australian Safeway Stores Pty Ltd v Zaluzna [1987] 162 CLR 479. 14 Bolton, above n 5. 15 Paris v Stepney BC [1951] AC 367. 5

LAW2447_S1.2021_SGS_Assignment 2_Team 53 Precautions is easy and unburdened to Walstore.16 Harm could be easily mitigated by warning of potential risks, providing more entrances for convenient and safe entering or creating orderly lines before opening. Moreover, Ray was hired as an additional precaution implies that Walstore was aware of the danger. No Social Utilities are related to Walstore's negligent conduct. These arguments effectively claim that Walstore breached the DOC towards Manny.

Ultimately, Manny's injuries caused by Walstore were reasonably foreseeable. The Walstore committed the TON, thus, can be successfully sued by Manny.

Defence: The Walstore might apply for a Full Defence based on the arguments, which are identical to the Manny v Harry case, blaming for the plaintiff's voluntary assumption of risk.17 However, there is no Voluntary Assumption of Risk as no initial precautions were provided. Hence, the Walstore could not reduce its liabilities. 4. Manny v Walstore (vicarious liability): The legal issue is whether Walstore was vicariously liable for the harm caused by Ray to Manny. The initial requirement for Walstore's Vicarious Liability as specified in Century Insurance v Northern Island Road Transport Board - the committed person must be the employer's employee - was met when Ray is proven to have committed tort to Manny in Manny v Ray case.18 Furthermore, he was also Walstore's employee as a temporary security officer. Walstore might argue that Ray's commencing of rescue was out of “The Employment Scope” as he was not an official security guard. However, this argument completely fails as, although Ray was initially hired as a salesman, Walstore asked him to be in the security position at the incident time. Therefore, saving a customer was Ray's authorised work and within his scope of duty.19 Walstore is vicariously liable for Ray's action.

16 Latimer, above n 6. 17 Insurance Commissioner, above n 8. 18 Century Insurance v Northern Island Road Transport Board [1942] 72 Ll.L.Rep. 119. 19 Century Insurance, above n 18. 6

LAW2447_S1.2021_SGS_Assignment 2_Team 53 In conclusion, Manny would successfully sue Walstore under Vicarious Liability for their employee, Ray's TON. 5. Manny v Mickey & Minnie: The legal issue is whether Mickey – Minnie owed Manny a DOC and breached that DOC by running over him, which caused his injuries. The sub-issue is whether Mickey – Minnie could defend against the blame.

As the relationship between Mickey, Minnie and Manny are unrecognised, the Neighbour Test is carried out. Manny blamed Mickey – Minnie for contributing to his injuries by having overrun him to get their bargains. However, Mickey - Minnie's conduct of running on the way to get their target is determined to be conventional, all done by other customers. Due to the crowd, Mickey – Minnie was not aware of Manny’s presence on the ground. Also, there is no evidence proving that Manny's injuries resulted from Mickey – Minnie's conduct, which means Manny was not directly and closely affected by them. Hence, the Neighbour Test is unsatisfactory – Mickey – Minnie did not owe Manny a DOC. Overall, Manny would fail to sue Mickey – Minnie under the TON as they did not owe him a DOC, then there was no required defence.

II.

Scenario 2: 1. Local v Great Lake Shopping Mall: The legal issue is whether the Mall owed Local a DOC and breached that DOC by

letting Whiz conduct the firework display without any precaution measures, which caused Local's injuries. The sub-issue is whether Local contributed to his loss. Initially, the incident occurred in the defendant's garden. Accordingly, the defendant the Mall acts as an occupier, while Local, the plaintiff is a guest. Thus, the premise's controller is responsible for taking reasonable care of the safety of a person entering the place. Hence, the defendant owed the plaintiff a DOC.

The Probability of Harm is high since the occupier should be aware of the risk when organising the firework display without recruiting the specialist.20 Similar to the Manny v 20 Boston, above n 5. 7

LAW2447_S1.2021_SGS_Assignment 2_Team 53 Walstore (TON) case, the defendant's conduct would cause fatal injuries to others; thus, the Likely Seriousness of Harm is high. However, the Cost of Precautions is approximately handleable and inexpensive compared to the loss, such as allocating a high barrier to prevent Local from getting into Whiz's area during the performance. No Social Utilities are resulting from the owner's conduct. Generally, the defendant did not meet the SOC, so they breached a DOC owed to the plaintiff.

Finally, the plaintiff's injury caused by the defendant was reasonably foreseeable. Thus, the premise's owner committed a TON, and Local thereby can successfully sue him.

Defence: The defendant could establish a Contributory Negligence Defence to partially reduce its liability if the plaintiff has also contributed to his damage.21 In this case, Local did carelessly enter the forbidden area. Therefore, it is a successful defence, and the defendant could apply for a partial defence. 2. Local v Great Lake Shopping Mall (vicarious liability): The legal issue is whether the defendant, the Mall was vicariously liable for the harm caused by Whiz to Local - the plaintiff. As Whiz was hired by the Mall as their marketer and did commit the tort to Local, her unlawful manner met the first two criteria of Vicarious Liability according to the Deatons Pty Ltd v Flew (1949) 79 CLR 370 case.22 Additionally, to determine whether the harmful act was within "Scope of Employment", The Century Insurance v Northern Island Road Transport Board [1942] should be induced.23 Since the tort happened when Whiz did an authorised task for Mall, Whiz's behaviour would be allocated in the "Scope of Employment". Ultimately, the Mall's occupier would endure Vicarious Liability, and Local will successfully sue him.

21 Ingram v Britten [1994]. 22 Deatons Pty Ltd v Flew (1949) 79 CLR 370. 23 Century Insurance, above n 18. 8

LAW2447_S1.2021_SGS_Assignment 2_Team 53 3. Local v Whiz: The legal issue is whether Whiz owed Local a DOC and breached that DOC by continuing the firework display nearby Local.

Here, the relationship between the parties is not recognised, so the Neighbour Test is conducted to analyse the case. In effect, Whiz performed a firework herself without any technical understanding would foreseeably cause Local’s harm. Therefore, Whiz owed Local a DOC. As a marketer, Whiz held a firework display and continued to perform nearby Local, leading to a fatal accident; hence, the Probability of Harm was high.24 Similarly, the Likely Seriousness of Harm was high because someone could suffer severe injuries if a firecracker happens.25 By contrast, the Cost of Precautions is low because Whiz could easily choose to stop her conduct when she was aware of Local's presence.26 There were no Social Utilities here.27 Since Whiz did not conduct what a reasonable person would have done in the same situation, she failed to meet the required SOC and breached that DOC to the Local.

Defence: Since Local actively entered the prohibited area during the fireworks display without permission, he was negligent, which directly contributed to his injuries. Accordingly, the defendant's liabilities could be partially reduced. Then, a Contributory Negligence Defence could be successful28. 4. Whiz v Ace Firework: The legal issue is whether Ace Firework owed Whiz a DOC and breached that DOC by selling the flammable commodity with the small warning label, which obscured the user's awareness. The sub-issue is whether Whiz's responsibility is detected or not. Firstly, as Whiz bought fireworks packages from Ace Firework for the firework display, this case was allocated in the linkable term of Manufacturer and Consumer.29 Logically, the defendant owed the plaintiff a DOC. 24 Boston, above n 5. 25 Paris, above n 15. 26 Latimer, above n 6. 27 Watt, above n 7. 28 Ingram, above n 21. 29 Donoghue, above n 2. 9

LAW2447_S1.2021_SGS_Assignment 2_Team 53

On the basis of SOC, the small label obscured Whiz's vision owing to the manufacturer's carelessness in production, resulting in the inadequate distancing of 3m. Thereby, the Probability of Harm is high.30 Besides, the product's inadequate labelling would considerably cause injuries to people, so the Likely Seriousness of Harm is medium.31 Then, the Cost of Precautions is easy and reasonable. 32 The producer could print off a more significant size label and warning of the sturdy material in the firework bag to eliminate the risk.33 Also, there are no Social Utilities related.34 Consequently, the defendant did not meet the SOC; and breached DOC to Whiz.

Thereby, the plaintiff's injury caused by the defendant was reasonably foreseeable. Thus, the manufacturer committed a TON; Whiz will successfully sue him.

Defence: Regarding the Contributory Negligence Defence, the defendant can partially reduce their obligation to Whiz.35 Due to Whiz's ignorance of the requisite instruction when preparing the firework display despite her major in marketing, she did not recognise the sturdy material within the product. Thus, her negligence also contributed to her loss. 5. July v Local: The legal issue is whether July can sue Local under the TON for causing her injury due to his fall. Since the relationship between two parties does not belong to any categories of recognised DOC, the Neighbour Test should be applied in this case. July's injury was closely and directly affected by Local, and the plaintiff's hard fall could be potentially harmful to her.36 Hence, the Neighbour Test is satisfied, and Local owed July a DOC.

30 Boston, above n 5. 31 Paris, above n 15. 32 Latimer, above n 6. 33 Sale of Goods Act 1895 (S.A.), sec.14 34 Watt, above n 7. 35 Ingram, above n 21. 36 Donoghue, above n 2. 10

LAW2447_S1.2021_SGS_Assignment 2_Team 53 Next, the breach of DOC should be examined by referring to four factors associated with the required SOC.37 The Probability of Harm is between medium and high since the plaintiff was standing close to the accident zone.38 The Likely Seriousness of Harm is medium because violent contact can potentially cause specific injuries; those injuries are ra...