LAW2447 SGS Group 6 Team 45 ASM2 Team Paper PDF

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LAW2447 – COMMERCIAL LAWASSESSMENT 2 – TEAM PAPERSubject Code LAWSubject Name Commercial LawLocation and Campus Sai Gon South CampusSemester Semester 3 - 2021Assignment Assignment 2 – Team PaperStudent NameNguyen Khanh Nhu – s Nguyen Duy Khai – s Doan Bach Thuy Vy – s Lecturer’s Name Esmira Hackenbe...

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RMIT UNIVERSITY VIETNAM

LAW2447 – COMMERCIAL LAW

ASSESSMENT 2 – TEAM PAPER Subject Code

LAW2447

Subject Name

Commercial Law

Location and Campus

Sai Gon South Campus

Semester

Semester 3 - 2021

Assignment

Assignment 2 – Team Paper

Student Name

Nguyen Khanh Nhu – s3891489 Nguyen Duy Khai – s3891477 Doan Bach Thuy Vy – s3891484

Lecturer’s Name

Esmira Hackenberg

Class Group

6

Date of Submission

29/11/2021

Number of page

16

Words Count

4101

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Contents I.

SCENARIO 1.....................................................................................................................................3 Case 1: Ms. Tormey v Tom and Ben.....................................................................................................3 Case 2: Mathew v John.........................................................................................................................3 Case 3: Mathew v Coles........................................................................................................................4 a.

Vicarious Liability.....................................................................................................................4

b.

Tort of negligence.......................................................................................................................5

Case 4: Ms. Tormey v Coles..................................................................................................................6 I.

SCENARIO 2.....................................................................................................................................7 Case 1: Loan v Minh.............................................................................................................................7 a.

Forming a contract....................................................................................................................7

b.

Vicarious Liability.....................................................................................................................7

Case 2: Loan v Trinh.............................................................................................................................7 Case 3: Loan v Tung..............................................................................................................................8 Case 4: Huy v Loan...............................................................................................................................9 Case 5: Huy v Tung..............................................................................................................................10 Case 6: Huy v Minh.............................................................................................................................11 III.

SCENARIO 3...............................................................................................................................11

Case 1: Simon v Nicole........................................................................................................................11 Case 2: Simon v Joe.............................................................................................................................12 Case 3: Nicole v Joe.............................................................................................................................13 Case 4: Nicole v White Rock South Surrey Taxi................................................................................13 IV.

SCENARIO 4...............................................................................................................................14

Case: Winson v Julia...........................................................................................................................14 Case 1: Grassy Plains v Sierra Foxtrot..............................................................................................14 Case 2: Green Grow v Sierra Foxtrot................................................................................................15 Case 3: Sow This! v Sierra Foxtrot.....................................................................................................15 Case 4: Sow This! v Sierra Foxtrot.....................................................................................................15 V.

BIBLIOGRAPHY............................................................................................................................16

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I. SCENARIO 1 Case 1: Ms. Tormey v Tom and Ben Issue: Whether Ms. Tormey can successfully sue Tom and Ben in the Tort of negligence because Tom and Ben caused Ms. Tormey's significant physical injuries? Rule: If the relationship between parties belongs to established categories of DOC, the defendant directly owes the plaintiff a DOC. In contrast, if the relationship does not fall into established categories, the "neighbors test" is applied based on Donoghue v Stevenson (1932). Moreover, Wyong Shire Council v Shirt (1980) is applied to identify whether the defendant breached the DOC. Four factors in the Civil Liability Act (2002), namely probability of harm, likely seriousness of harm, cost of taking precaution and social utility, must be considered to determine the SOC. Application: Firstly, the relationship between Tom and Ben (the defendant) and Ms. Tormey (the plaintiff) is not a recognized DOC category, so the "neighbor test" is necessary1. Playing with the trolley in public places is potentially harmful to others. Besides, Ms. Tormey is a customer in the supermarket at that time so she is most likely to be bumped by Tom and Ben's trolley. Thus, Tom and Ben owed Ms. Tormey a duty of care. Secondly, four factors are examined to identify whether the plaintiff met the SOC 2. In this case, the probability of harm is high because many people are in the supermarket and the aisle is relatively narrow. Furthermore, being trucked by the trolley in the back can suffer physical injuries, so the seriousness of harm is medium. The cost of precaution is low because Tom and Ben can control it carefully and look out for the surroundings easily. Social utility is not discussed here. From the above analysis, there is no doubt that the defendant breached DOC to the plaintiff.3 Lastly, Tom and Ben caused Ms. Tormey to suffer a reasonably foreseeable injury. Conclusion: Three requirements are satisfied, which indicate that Tom and Ben committed Tort of Negligence. Therefore, Ms. Tormey can successfully sue Tom and Ben under negligence.

1 Donoghue v Stevenson [1932] AC 562 2 Civil Liability Act [2002] SECT 5B 3 Wyong Shire Council v Shirt [1980] HCA 12

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RMIT UNIVERSITY VIETNAM Case 2: Mathew v John Issue: Can Mathew successfully sue John under the Tort of Negligence because John's bag of fruit caused Mathew a broken arm? Rule: Occupiers to guests - Australian Safeway Stores Pty Ltd v Zaluzna (1987) , Civil Liability Act (2002) and Wyong Shire Council v Shirt (1980). Application: Firstly, the case showed the relationship between Mathew (the plaintiff) and John (the defendant) was identified as an "Occupier-Guest." 4This means occupiers have a duty to take reasonable care to protect their guests from harm caused by unexpected danger. As a result, John owed Mathew a DOC. Secondly, four major factors of SOC must be considered to determine whether John breached a DOC5. The probability of harm is low because, as an ordinary person, Mathew actually could be aware of the big bag of fruit which dropped in the middle of the aisle. Moreover, the seriousness of harm is high because the head can be hit to the ground causing significant damage to the nerves. The precautionary cost is medium because John was in an emergency to help his customers, so that his carelessness is inevitable. The final factor is social utility, which is irrelevant because the conduct was not beneficial to society. As a result, John breached a DOC to Mathew6. Thirdly, because the defendant's conduct was reasonably foreseeable to cause harm to the plaintiff, the Causation requirement is satisfied. Defense: John can argue that even though Mathew fell to the floor after tripping over his big bag and breaking his arm, this is an emergency and John had no intention to drop the bag on the floor. Moreover, Mathew could have avoided falling if he had paid attention to the floor. As a result, Mathew contributed negligence to his injury by following Ingram v Britten7. Conclusion: From the above analysis, Mathew can successfully sue John under negligence to receive compensation for his injuries. If John used the argument in defense, he could claim that Mathew contributed negligence to his own injuries to minimize his responsibilities.

4 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7 5 Civil Liability Act [2002] SECT 5B 6 Wyong Shire Council v Shirt [1980] HCA 12 7 Ingram v Britten [1994] QSC 144

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RMIT UNIVERSITY VIETNAM Case 3: Mathew v Coles a. Vicarious Liability Issue: Whether Coles was vicariously liable when his employee (John) caused Mathew to suffer a broken arm? Rule: Century Insurance v Northern Ireland Road Transport Board (1942) - The employer is vicariously liable for the conduct of its employee within the “scope of employment.” Application: At the time of the accident, John was a staff of the store and dropped his bag while rushing into Ms. Tormey to help her. His bag caused Mathew to suffer a broken arm. John performed an authorized task because he was in working time. In addition, John’s conduct brought benefits to Coles’s supermarket. Therefore, two factors are satisfied so that John’s conduct was contained in the “scope of employment”.8 Conclusion: Coles can be sued under vicarious liability for Mathew’s injuries. This will bring more advantages for Mathew than suing the employee in compensation.

b. Tort of negligence Issue: Whether Mathew can successfully sue Coles under negligence because John's bag of fruits caused Mathew a broken arm? Rule: Occupiers to guests - Australian Safeway Stores Pty Ltd v Zaluzna (1987), Civil Liability Act (2002) and Wyong Shire Council v Shirt (1980). Application: Firstly, the relationship between Mathew (the plaintiff) and John (the defendant) was "Occupier-Guest."9 This means that occupiers are responsible for exercising reasonable care to safeguard their guests against injury induced by unanticipated hazards. As a result, John owed Mathew a DOC. Secondly, four major factors of SOC must be considered to determine whether John breached a DOC10. The probability of harm is low and the seriousness of harm is high, which is proven in the case between Ms. Tormey v Tom and Ben. The cost of taking precautions is high because the incident happened unexpectedly and Coles could not anticipate and control it. The social utility is not concerned. As a result, Coles did not breach his DOC to Mathew11.

8 Century Insurance v Northern Ireland Road Transport Board [1942] AC 509 9 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7 10 Civil Liability Act [2002] SECT 5B 11 Wyong Shire Council v Shirt [1980] HCA 12

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RMIT UNIVERSITY VIETNAM Thirdly, the Causation requirement is satisfied since the defendant's action was reasonably foreseeable to cause harm to the plaintiff. Defense: According to Australian Safeway Stores Pty Ltd v Zaluzna12, Mathew had to be liable for the accident because of his carelessness. He would not have been damaged if he had paid more attention to his surroundings. Moreover, the occupier does not always have to be liable for the accidents of their visitors. Conclusion: Mathew cannot successfully sue Coles for his broken arm under negligence.

Case 4: Ms. Tormey v Coles Issue: Whether Ms. Tormey can successfully sue Coles under the Tort of Negligence because Ms. Tormey had a broken arm in Coles's supermarket? Rule: Occupiers to guests - Australian Safeway Stores Pty Ltd v Zaluzna (1987), Civil Liability Act (2002) and Wyong Shire Council v Shirt (1980). Application: Firstly, the case identified Ms. Tormey (the plaintiff) and Coles (the defendant) as an "Occupier-Guest" relationship13. This means occupiers have a duty to take reasonable care to protect their guests from harm caused by unexpected danger. Therefore, Coles owned Ms. Tormey a DOC. Secondly, four major factors of SOC must be considered to determine whether Coles breached a DOC14. The probability of harm is high and the likely seriousness of harm is medium, as proven in the case of Ms. Tormey v Tom and Ben. Furthermore, the cost of precaution is low because the supermarket could put warning signs to tell people to avoid over-frolic. Social utility is not discussed here. From the above analysis, there is no doubt that Coles breached DOC to the Ms. Tormey. 15 Finally, Coles caused Ms. Tormey to suffer a reasonably foreseeable injury. Conclusion: Three conditions are met, indicating that Coles committed Tort of Negligence. Hence, Ms. Tormey can legitimately sue Coles for negligence.

12 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7 13 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7 14 Civil Liability Act [2002] SECT 5B 15 Wyong Shire Council v Shirt [1980] HCA 12

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I. SCENARIO 2 Case 1: Loan v Minh a. Forming a contract Issue: Whether there is a binding contract between Loan and Minh for parachuting? Rule: Smith v Hughes (1871) and Chappell & Co Ltd v Nestle Co Ltd (1960). Application: Before going parachuting, Loan signed the waiver with a clear commitment to confirm that she was completely aware of the risks involved with parachutes. Therefore, she accepted Minh’s offer to be fully liable for her parachuting. An official agreement had been established when an offer was accepted16 implied that they intend to established a legal relationship. However, there is no consideration in this case so just two out of three elements of forming a contract are satisfied. Conclusion: There is no enforceable contract between Loan and Minh.

b. Vicarious Liability Issue: Whether Loan can sue Minh successfully under vicarious liability because his employee’s carelessness caused her broken leg while going parachuting? Rule: Century Insurance v Northern Island Road Transport Board (1942). Application: When the incident happened, Tung was a highly experienced parachute instructor of the Society and he was training for Loan. This means Tung performed an authorized task for Minh, his manager, which was beneficial for the Society. Therefore, two factors are satisfied so that Tung’s conduct was contained in the “scope of employment.”17 Conclusion: Loan can successfully sue Minh under vicarious liability for her damages.

Case 2: Loan v Trinh Issue: Whether Loan can successfully sue Trinh for bruised arm because Trinh struck Loan by his vehicle? Rule: Drivers to road users - Imbree v McNeilly (2008), Civil Liability Act (2002) and Wyong Shire Council v Shirt (1980).

16 Smith v Hughes [1871] LR 6 QB 597 17 Century Insurance v Northern Ireland Road Transport Board [1942] AC 509

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RMIT UNIVERSITY VIETNAM Application: Firstly, Trinh (the defendant) owed Loan (the plaintiff) a DOC, as there is a recognized relationship between the driver and road user that means drivers have liabilities to keep the road users safe18. Secondly, the identification of breaching the DOC of Trinh is based on four key factors 19. Although Trinh was driving in the lane at a speed limit, the probability of harm is medium as he was texting with his friends at the same time. The severity of the injury is modest because Trinh was aware of Loan sliding off the sidewalk and into the traffic lane so that he could fully brake at a safe distance to avoid the high level of injury. The cost of precaution is low as Trinh could entirely focus on his driving by stopping texting with his friends to avoid colliding with Loan, but he did not. There is no social utility issue in this situation. As a result of the driver failing to act reasonably as a reasonable driver in the circumstances (failing to meet SOC), Trinh breached DOC and owed Loan.20 Thirdly, because the defendant's conduct was reasonably foreseeable to cause harm to the plaintiff, the Causation requirement is satisfied. Defense: Trinh may argue that even though Loan was struck by Trinh's vehicle when she suddenly fell into his lane and suffered a bruised arm, Loan might have avoided falling if she had not consumed beers previously. As a result, Loan contributed negligence to her damage by following Ingram v Britten.21 Conclusion: Loan can successfully sue Trinh for her bruised arm to gain compensation and liability. If Trinh used the argument in defense, he could claim that Loan contributed negligence to her injuries to minimize his responsibilities.

Case 3: Loan v Tung Issue: Whether Loan can successfully sue Tung for his carelessness in forgetting to attach one of the clips and cause Loan injuries? Rule: Donoghue v Stevenson (1932), Civil Liability Act (2002) and Wyong Shire Council v Shirt (1980).

18 Imbree v McNeilly [2008] HCA 40 19 Civil Liability Act [2002] SECT 5B 20 Wyong Shire Council v Shirt [1980] HCA 12 21 Ingram v Britten [1994] QSC 144

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RMIT UNIVERSITY VIETNAM Application: Firstly, the relationship between Tung (the defendant) and Loan (the plaintiff) is not a recognized DOC category so the "neighbor test" is necessary 22. Carelessness in ensuring safety is potentially harmful to customers. Besides, Loan is a customer in the Jump Society at that time, so Tung's conduct directly and closely impacts her. Secondly, four factors are examined to identify whether the plaintiff met the SOC 23. In this case, one of the clips is not installed properly so the probability of harm is high. Moreover, the seriousness of harm is high because being floated in the air with one of the clips unattached can suffer severe injuries and cause death. The cost of precaution is low due to Tung being able to attach and recheck it carefully. Social utility is not discussed here. From the above analysis, there is no doubt that the defendant breached DOC to the plaintiff. 24 Lastly, Tung caused Loan to suffer a reasonably foreseeable injury. Conclusion: Three requirements are satisfied, which indicate that Tung committed Tort of Negligence. Therefore, Loan can successfully sue Tung under negligence.

Case 4: Huy v Loan Issue: Whether Huy can successfully sue Loan because her parachute cords caused his serious face and eye injuries? Rule: Donoghue v Stevenson (1932), Civil Liability Act (2002) and Wyong Shire Council v Shirt (1980). Application: Firstly, the relationship between Huy (the plaintiff) and Loan (the defendant) is not a recognized DOC category, so the “neighbor test” is necessary25. Her parachute opening when landing near the ground is potentially harmful to Huy. Besides, Huy was also a parachute trainee at that time so the conduct of Loan directly and closely impacted him because he was standing on the ground and could collide with Loan anytime. Secondly, four factors are examined to identify whether the plaintiff met the SOC 26. The probability of harm is medium because the people standing on the ground can recognize and avoid the danger, but it is difficult to determine the direction of the parachute landing. Moreover, 22 Donoghue v Stevenson [1932] AC 562 23 Civil Liability Act [2002] SECT 5B 24 Wyong Shire Council v Shirt [1980] HCA 12 25 Donoghue v Stevenson [1932] AC 562 26 Civil Liability Act [2002] SECT 5B

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RMIT UNIVERSITY VIETNAM anyone in this circumstance could ...