TEAM144 - LAW2447 - Asign 2 PDF

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ASSESSMENT TASK 2(TEAM PAPER)Course Code: LAW2447 (Commercial Law)Team Number: 144Lecturer’s Name: NGUYEN TAN SONTeam Members’ Name & ID: Ngo Ngoc Dang - sPham Le Phuoc Dai - sVo Ngoc Yen Nhi - s1 TABLE OF CONTENTS2 SCENARIO 1:........................................................................

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ASSESSMENTTASK2 ( TEAM P APER) Course Code: LAW2447 (Commercial Law) Team Number: 144 Lecturer’s Name: NGUYEN TAN SON Team Members’ Name & ID: Ngo Ngoc Dang

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Pham Le Phuoc Dai - s3769044 Vo Ngoc Yen Nhi

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1 TABLE OF CONTENTS 2

3

4

SCENARIO 1:........................................................................................................................................ 3 2.1

MANNY V HARRY......................................................................................................................... 3

2.2

MANNY V WALSTORE...................................................................................................................4

2.3

MANNY V MINNIE AND MICKIE...................................................................................................5

2.4

MANNY V RAY..............................................................................................................................6

SCENARIO 2:........................................................................................................................................ 7 3.1

BILLY LOCAL V JANET WHIZ..........................................................................................................7

3.2

BILLY LOCAL V JULY.......................................................................................................................8

3.3

DR DENNIS V BILLY LOCAL AND JULY............................................................................................9

SCENARIO 3:......................................................................................................................................10 4.1

ALGERNON V BASIL....................................................................................................................10

4.2

ABEL MOVERS V CAIN CONSTRUCTION CO LTD (CCC)................................................................11

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2 SCENARIO 1: 2.1 MANNY V HARRY Manny was pulled down by Harry and suffered injuries. The main legal issue is whether Manny can sue Harry under the Tort of Negligence (ToN). To discuss the case, the following legal issues must be considered: [1] Whether Harry owe Manny a Duty of Care (DoC)? [2] Whether Harry’s action meet the required Standard of Care (SoC)? [3] Is there any actual harm caused by Harry’s action? And [4] Are there any possible defences? [1] Because the relationship between Harry and Manny is not fall in the scope of established categories of Duty of Care, the Reasonable Foreseeability Test (Neighbor Test) is applied. Harry specifically grabbed Manny by the elbow, and make Manny fell down, means that the plaintiff is closely and directly affected by Harry’s conduct. Moreover, pulling someone down is a potentially harmful in a normal situation, not to mentioned in a crowded place where everyone was rushing. Therefore, the reasonable foreseeability test is satisfied, and according to Donoghue v Stevenson1,Harry owe Manny a DoC. [2] The required SoC is what a reasonable person would have done in the same situation. If Harry met the required SoC, there will be no breach of DoC, and vice versa. The required SoC could be high or low, considering the 4 main factors:  Probability of harm: When the incident occurred, the was a crowd of about 150 people and everyone was on a rush. In such a situation, people are less likely to look around carefully, and when someone fell, there is a high chance that they might get stepped on and hurt. Furthermore, an actual person in a normal place would still get hurt when suddenly being pulled down by others. Therefore, according to Bolton v Stone 2, the SoC in this case is high.  The likely seriousness of harm: In a normal context, a strong healthy person when being pulled down might not suffered fatal injuries, depending on the position of the victim when falling. However, in the case, being pulled down in a crowded is almost certainly mean that you will get stepped on, regardless of the position you fell. And when you get stepped on dangerous spots, which is very likely, the damages are fatal. Therefore, according to Paris v Stepney Borough Council3, the likely seriousness of harm is high.  The cost of taking precaution: It is clearly in this case that there is no expensive cost for Harry to not pulling Manny. Giving up a chance to get a cheap laptop is not an expensive and difficult measure, even when considering that Harry recently lost a job. Therefore, According to Latimer v AEC4, the cost of taking precaution is low, lead to the higher required SOC.  Social Ultility: There is no controversy in this legal issue. There is no evidence that anyone other than Harry and his friend, Sally, is benefitted when Harry pull down Manny to get the bargain. In another word, Harry’s conduct was for his own sake, and there was no social ultility. Hence, According to Watt v Hertfordshire County Council5, the SoC is normal. 1 Donoghue v Stevenson [1932] AC 562. 2 Bolton v Stone (1951). 3 Paris v Stoney Borough Council (1951). 4 Latimer v AEC (1953). 5 Watt v Hertfordshire County Council.

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 After carefully weighing and balancing the 4 factors in totality, Harry’s conduct didn’t meet the required SOC, and he breached the duty of care. [3] Two important issues must be proven to see if Manny suffered actual harm related to Harry. The harm Manny suffered is the injury.  Causation: The ‘but for’ test will be applied, Particularly, if Harry didn’t grab Manny by the elbow, Manny wouldn’t fall down, and wouldn’t be stepped on by Mickie and Minnie. Hence, the injuries will disappear. In another word, according to Yates v Jones6 the ‘but for’ test is satisfied, and the causation is established.  Remoteness: Even though Harry didn’t directly step on Manny, causing the specific type of injury, damages in this case, the harm was caused right after Harry pull Manny down. Hence, according to Rowe v McCartney7, Manny’s injuries are not too remote from Harry’s negligence.  2 important issues are proven, and Harry is responsible for Manny’s injuries. In conclusion, Manny can successfully sue Harry under the Tort of Negligence, then ask for the remedies for the damages.

2.2 MANNY V WALSTORE The main legal issue is whether Manny can sue the Walstore under the tort of negligence, for not providing necessary action to protect him from the injuries. Similar to the first case, we need to consider 4 sub issues. [1] It is easy to recognize that Walstore was the occupier who sale computer and create the sale event, and Manny was one of the guests who trying to shop in it. According to Australian Safeway Store Pty Ltd v Zaluzna (1987)8, the relationship between occupiers and guests establishes a DoC. Thus, Walstore owe Manny a DoC. [2] The 4 factors are also considered:  Probability of harm: It is cleared that a sale event will have many people. There are possibilities that accident will occur in such a crowded place. However, the possibilities are not considered very high, because not every sale event witness the same accident. Only 2 security guards, Bob and Ray, are not enough to deal with the harm if there are any, and one even is only a college student. This increased the chances slightly. Therefore, it is reasonable to say that the possibility of harm here is slightly high, or a normal to high standard of care 9.  The likely seriousness of harm: In a crowded place, people could step on each other, causing serious harm. They might fight each other very hard to win bargains. Therefore, the seriousness of potential harm is slightly high, and the SoC is more or less high10.  The cost of taking precaution: To decide if Walstore could avoided the incident by cheap or expensive methods, we have to look carefully in the background and evidence. To avoid potential accidents, Walstore could have establish more security guards to protect the customers 6 Yates v Jones (1990). 7 Rowe v McCartney (1976) 8 Australian Safeway Store Pty Ltd v Zaluzna (1987) 162 CLR 479 9 Bolton v Stone (1951). (cited above in 10 Paris v Stoney Borough Council (1951).

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to organize the line. It takes some consideration to decide if these methods are expensive or not. It is noticed that Walstore failed to keep the crowd organized, because when Harry and Sally come to the store, there were no line. It is also noticed that there were only 2 security guards, which are clearly not enough to organize the crowd. It might be reasonable if the store is trying to cut cost on labor, however, according to the ‘Grand Bailout Act of 2020’, the store has been provided with $1 million to cut costs without cutting jobs. Hence, using more guards to organize the crowd is not an expensive and difficult method. Therefore, Walstore’s negligence is more likely a breach of DOC11.  The social ultility: As discussed above, the store didn’t provide enough security guards to organize the crowd, and it is not helpful to the society as a whole. It might be reasonable if the store cut down labor because of economic downturn, but they were supported with money and encouraged to not cutting down the cost. Hence, the standard of care is high12.  Although, the breach is not very clearly, it is still reasonable to claim that Walstore has breached the duty of care. [3] The harm is the injuries of Manny.  Causation: ‘But-for’ test is applied. However, there is not enough evidence to say that if Walstore establish more security guards, Manny wouldn’t have fell down. Manny might not fell down because being pulled down by Harry, but he could still have fell for some other reasons and suffer the same injuries. There are no guarantees that Manny would be safe when Walstore set more guards. If only Walstore changed their promotion strategies, applying sale to all the computers so that no one push or trying to compete for the bargain, Manny would be safe. But it is not feasible for Manny to argue under the scope of that. Hence, the causation test is not satisfied, and the defendant’s conduct did not cause the plaintiff to suffer harm13. Then, it is not necessary to consider further. In conclusion, Manny could sue Walstore for not establishing enough security guards to protect him, but it is not likely that Manny could demand for any remedies.

2.3 MANNY V MINNIE AND MICKIE The main legal issue is whether Manny could successfully sue Mickie and Minnie under the tort of negligence for directly run over him and cause his injuries. Similar to above cases, there are 4 smaller legal issues. [1] There is no established category of DOC, so the ‘neighbor test’ is applied. It is cleared that step on someone is more or less cause harm to others, and Manny is directly being ran over by Mickie and Minnie. Hence, Mickie and Minnie owe Manny a duty of care. [2] 4 factors are considered:

11 Latimer v AEC (1953). 12 Watt v Hertfordshire County Council. 13 Yates v Jones (1990).

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 Probability of harm: At the time the incident occurred, when everyone rushing, it is very likely that Mickie and Minnie would negligently step on Manny when he fell down. Thus, the standard of care is higher.  The likely seriousness of harm: Stepping on someone clearly is dangerous. In the context of the defendant is rushing, it is likely that they will step on the dangerous body parts of the defendant, causing serious harms. Even when they are not rushing, it would still leave some considerable damages. Hence, the standard of care is high.  The cost of taking precaution: To take the precaution, a reasonable person is required to look down on the floor continuously. But in the context of the incident, when the defendant is trying to rush for the bargain, and the crowd are pushing each other, a reasonable person wouldn’t have always notice around. Hence, the cost of taking precaution here is high, and the require SOC is low.  Social Ultility: the defendant is not helping other people beside themselves when stepping on the plaintiff. They even yell happily when achieving the cheap computer. Hence, there is no social ultility, and the SOC is normal.  Mickie and Minnie have breached the duty of care. [3]  Causation: ‘But-for’ test is applied. Without the defendant’s stepping on the plaintiff’s body, the damages wouldn’t have been so severed, or wouldn’t suffer such damages. Therefore, the causation is satisfied. However, more evidence needed to decide which kind of injury among bruises, broken nose, and broken neck is from Mickie and Minnie, and which one is from falling down by being pulled by Harry. It is suspected that bruises and broken nose are from the defendant.  Remoteness: It is clear that the damages are directly cause by the defendant. No further type of harm is considered.  There are actual harms. The defendant committed the tort of negligence. However, Mickie and Minnie could try and argue for contributory negligence the defence to reduce the liability. To argue under the scope of this defence, the plaintiff suddenly fell down to the ground is a negligent action. Because Manny fell on the floor suddenly, even though that he is not responsible for the fall, that the defendant ran over him and cause the injuries. Hence, the contributory negligence defence is satisfied. In conclusion, Manny could successfully sue Mickie and Minnie under the Tort of negligence, but Mickie and Minnie won’t have to be responsible for all Manny’s injuries.

2.4 MANNY V RAY It is suspected that the broken neck of Manny is the result of Ray pulling him out from the crowd. The main legal issue is whether Manny can successfully sue Ray under the tort of negligence for the neck injury. Similar to the above cases, 4 small legal issues are examined. [1] Because security guards are not law enforemence officers, and there are no established categories of DOC, the neighbor test is then applied. Ray directly grabbed Manny’s shoulders and pulled him, and that action is potentially causing harm to other. Hence, Ray owes Manny a duty of care.

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[2] 4 factors are considered:  Probability of harm: a reasonable person when being grabbed by a shoulder and pulled are not likely to suffer harm. In the context of a crowded place, and the victim is not aware of being pulled by shoulder, it is still not considered a high probability of harm. However, expert knowledge about medical needed to have a right decision. Hence, it is considered that the probability of harm is normal, and so are the SOC.  The likely seriousness of harm: A reasonable person when being pulled by shoulder are not likely to suffer severe injuries. Even when pulling a person lying on the floor in a crowded place, it is still not likely to break the neck of a healthy person. Hence, the required SOC is low.  The cost of taking precaution: The cost of taking precaution is determined to be very hard. In a regular context, a reasonable person would have grab anywhere to save Manny. However, in the actual situation, Ray has to fight through the crowd to save the plaintiff, and he just barely able to grab Manny in the shoulders to save him. It is believed that the situation at that time was chaos, so it is hard for Ray to do differently to save Manny. Thus, the required SOC is very low.  The social ultility: It is recognized that Ray has a good motive in performing the conduct to save Manny. However, it did not benefit a society as a whole, since Manny is just a regular person. Therefore, there is no social ultility and the SOC is normal.  Ray have done what a reasonable person would do in the same situation and met the required SOC. Therefore, there are no breach of DOC. Hence, no further legal issues should be considered. In conclusion, Manny couldn’t successfully sue Ray under the tort of negligence. There are more possible legal issues between Ray/Walstore with Harry, Mickie and Manny, but there were no specific harms. Hence, it is not relevant to discuss these issues.

3 SCENARIO 2: 3.1 BILLY LOCAL V JANET WHIZ The issue is whether Whiz owned Local a D.O.C and breach the tort of negligence while the smoke caused by the event was blown into Local’s house made him upset. Firstly, we examined the relationship between Whiz and Local based on the established categories of D.O.C, the result is they are not in the relationship of D.O.C. So Neighbour test is applied.  The conduct of Whiz is potentially harmful to everyone if they get hit or nearby. Because the fireworks need power to fire so it contains an amount of explosive to fire, so it must be separated from the viewers safely14.  Mr Local was directly hit by the firework while he stood there and screamed on Ms. Whiz’s ear about the smoke affecting his house. 14 Regulation 155 of the Dangerous Goods (Explosives) Regulations 2011

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After applying the Neighbour Test, all two conditions are satisfied in this situation15 , we temporarily assume that Ms. Whiz owned Mr. Local a D.O.C. Secondly, to determine whether Ms. Whiz is breaching the tort of negligence, yet. We will determine the four factors of S.O.C.  The probability of harm. As we had mentioned above, to fire the fireworks, the space must be safe enough to fire. Here, the Mall placed the ground which radius is 3 meters far from the viewers. We could conclude that the SOC is low on this situation.  The likely seriousness of harm. Analysing the case, there are two states that we could base on are warning labels on the firework bag and the injuries Mr. Local and July have to suffer. It is not easy to get harm, but once it does, it can cause quite severe consequences on the injured person. As I mentioned, on the warning stamp it says that there will be serious consequences if shot directly by fireworks. So, the S.O.C is high, unfortunately, Mrs. Whiz did not read until it hit Mr. Local.  The cost of taking precaution. According to the case, Mrs. Whiz had warning board construction that people should stay 3 meters away from the fireplace. In addition, when Mr. Local complained about the smoke, she also bought powerful fans to help Mr. Local solve problems. Yet, Mr. Local did not follow the warning and stood beside Mrs. Whiz while she fired the fireworks and this caused by the wind, even Mrs. Whiz tried to help Mr. Local. This means Mrs. Whiz did not breach the S.O.C.  Social Utility. This event is really useful not only for the Mall but also for guests and their family. Significantly, this activity is for community interest. This event is really beneficial for the community, breach the S.O.C is no in this situation.

In conclusion, after analyzing the D.O.C and tort of negligence of Billy Local v Janet Whiz, we conclude that Mrs. Whiz owned Mr, Local the D.O.C, but did not breach the tort of negligence.

3.2 BILLY LOCAL V JULY The issue is whether Billy Local owned July a D.O.C due to broken arm that she had to suffered. Because Mr. Local bumped into July, causing her to break her arm. Here we will consider, so whether Mr. Local is responsible for taking care of Ms. July based on measure D.O.C. Based on the DOC's relationship listing, we can see that they are not in the predefined relationship, so we will apply the Neighbour test.  The conduct of getting hit Ms. July is not causing by Mr. Local, but he accidentally hit Ms. July because the firework was directly knock him.  To clarify, we examine the situation here, Ms. July was completely unaffected by the fireworks but she was indirectly injured by Mr. Local's hit while he was shot down. This proves, the conduct causing the accident chain is not from Mr. Local but here it is from Ms. Whiz and he is also directly affected by it. 15 Donoghue v Stevenson [1932] UKHL 100

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In the result, Mr. Local does not satisfy two conditions in the Neighbour test rule. We could conclude that Mr. Local does not owe Ms. July any of D.O.C.

3.3 DR DENNIS V BILLY LOCAL AND JULY The issue is wh...