LAW2447 COMMERCIAL LAW – ASSESSMENT 2 TEAM PAPER the summers v chad charles

Legal rules Application – The legal rules are used in the first issue is Tort of negligence.. According to the probability, when the drivers exceeded the speed limit, they may not contr

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RMIT UNIVERSITY VIETNAM

HANOI CAMPUS

Lecturer: Dr Loh Ing Hoe

Prepared by Team 95

Team members: Pham Quynh Anh s3821194 –

Lai Minh Cam s3802917 – Nguyen Ha Linh s3825960 –

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TABLE OF CONTENTS

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SCENARIO 1

ISSUE 1

The Summers v Chad Charles

Legal issue

Whether Charles was tortiously liable to the Summers when he tried to avoid Free’s car and crashed into the Summers’ wooden playhouse As a result, the truck of Charles has destroyed the playhouse and injured Sarah Summer

The subordinate legal issue is whether Fresh Fruit has the vicarious liability to Charles’s conduct

Legal rules Application –

The legal rules are used in the first issue is Tort of negligence When a person performs careless conduct that causes harm to another, he/she infringes upon the tort of negligence (James, 2017) 1

In order to determine this, three requirements must be established by the plaintiff comprising (1) whether the defendant owed the plaintiff a ‘duty of care’ (DOC), (2) if the respondent breached the DOC, and (3) whether the claimant endured injury/ damage/ harm that was reasonably foreseeable2

First of all, according to the DOC, the relationship between these two parties is not detected in the established lists, therefore, the ‘neighbor test’ is used to identify whether the defendant’s conduct was closely or directly influenced the plaintiff as well as was potentially harmful to others The 3 surrounding area of the highway is farmland and the speed limit at 100km/h However, Charles has exceeded the speed limit at 110km/h Consequently, he has served out of the lane and could have been injured anything or anyone nearby the highway Thus, Charles owed DOC to the Summers

Second, to verify if the defendant did breach the DOC to the plaintiff, the standard of care must be determined through four factors: the probability of harm, the seriousness of harm, the cost of taking precaution, and social utility The higher the probability of harm, the greater the standard of care 4 (SOC)5 This also applied to the seriousness of harm, the higher the likely seriousness of harm, the higher the SOC Determining the cost of precautions, when the harm can be avoided with a cheap 6 and easy method, but the defendant failed to take these measurements is likely a breach of DOC 7

1 Jame, 2017, Business Law 4th ed, page 118

2Civil Law (Wrongs) Act 2002 (ACT) Chapter 4.

3Donoghue v Stevenson [1932] UKHL 100 (26 May 1932).

4Civil Law (Wrongs) Act 2002 (ACT) s 43.

5Bolton v Stones [1951] AC 850 (10 March 1951).

6Paris v Stepney Borough Council [1951] AC 367 (13 December 1951)

7Latimer v AEC Ltd [1953] AC 643 (25 June 1953)

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Besides, the standard of care may be lowered if the defendant’s behavior is beneficial to society8 According to the probability, when the drivers exceeded the speed limit, they may not control the steering wheels and cause harm to people or objects on the roads and the roadsides, hence, the probability, in this case, is high The seriousness of harm is noticeable as traffic accidents which are caused by a truck at speed 110km/h will seriously damage the property as well as injure people Moreover, the cost of precaution is really low because Charles just needed to drive at the proper speed Lastly, since no social utility is recognized for driving a truck on the highway, all four factors indicated that Charles did breach his DOC to the Summers

Third, taking into account the final element of Tort of Negligence, the Causation principle proclaims that:

(1) A decision that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation');

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (the scope of liability)9

In this case, the defendant’s conduct was reasonably predictable to cause injuries to the plaintiff However, concerning the contributory negligence, the defendant might get reduced from liability when the plaintiffs also did something careless that contributed to their injuries In this situation, 10 the Summers’ house was built only 15 meters away from the road which is not far enough to maintain the safety of the house Therefore, the Summer has contributed to their house’s damage, and this defense is recognized

On the topic of vicarious liability, when the harmful act was done within ‘the scope of employment’, which means that the employer will be vicariously liable to the employees if they were working Yet, it did not inform that Charles was on duty when the accident came about 11 Hence, Fresh Fruit was not a vicarious liability to the Summers

Conclusion

Charles was tortiously liable to the Summers, still, the contributory negligence must be taken into consideration and Fresh Fruit was not vicariously liable to the Summers

8 Civil Liability Act 2002 (WA) s 5 B (2)

10Ingram v Britten [1994] Aust Torts Reports 81-291

11Century Insurance v Northern Ireland Road Transport Board [1942] AC 509 (4 March 1942).

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ISSUE 2

Chad Charles v Fred Free

Legal issue

Whether Free has a tortious liability to Charles when Free exceeded the speed limit and changed

to Charles’s lane too quick that made Charles crash into the cornfield Consequently, the car accident injured Charles and caused damage to his truck

Considering the legal issue, there are three elements needed to be satisfied: DOC, Breach of DOC, and Causation 12

Firstly, the relationship between Charles and Free was identified in the categories of DOC as Motorists and road users Thus, Free owed Charles a duty of care 13

Secondly, in order to determine if the defendant did breach the DOC, there are four elements needed to be concerned about (Cited in the case between the Summers v Chad Charles) Since 14 Free obviously exceeded the speed limit (110km/h) and changed lane at high speed which can cause accidents to anyone on the roads and in this case is Charles, the probability of harm is high The seriousness of harm is also predicted to be high as a car accident would lead to serious injuries and even mortality In contrast to the cost of precaution, Free just needed to drive at the proper speed and comply with the traffic rules when changing lanes, hence, the cost is cheap and easy Last but not least, no social utility is recognized for changing lanes All four elements have indicated that Free breached DOC to Charles

On the other hand, before the accident happened, Charles also exceeded the speed limit which affected his control of the steering wheel and made him unable to react opportunely If Charles drove at the proper speed, he would minimize the chance of the accident Hence, Charles was contributorily negligent

Conclusion

Free has a tortious liability to Charles Therefore, Charles can win this case However, contributory negligence should be taken into consideration

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SCENARIO 2.

ISSUE 1

Tracey Ryder v the 5-year-old girl

Legal issue

The legal issue is whether the 5-year-old girl committed the tort of negligence owing to her action

of letting soap liquid splilled on the floor which caused Ms Ryder's spinal injury and cost her a

$40.000 medical bill

The subordinate legal issues are whether the child was fully capable of taking legal responsibility for her conduct, and whether her parents had vicarious liability for their child’s action or not

According to Legal Services Commission of South Australia, a child is generally liable for the repercussions of his/ her wrongdoing Though the required level of reasonable care of the child 15 might depend on his/ her age as well as the expected SOC of a child at the same age, the child in this case still had the capability to take responsibility for her own wrongful conduct To determine the tort of negligence, three requirements are needed: (1) DOC, (2) Breach of DOC, and (3) Causation16

In terms of DOC, since the relationship between Ms Ryder and the little girl does not fall within any of DOC established categories, the neighbor test is applied Considering the required SOC, ‘ ’ 17

it makes sense for a child at the age of 5 to aware that spilled liquid on the floor is something unwanted However, it is unreasonable for the child to foresee that his/ her conduct might lead to

a bodily injury of someone else who might slip on the wet floor and cost them other losses Hence, the 5-year-old girl, in this case, was not tortuously liable to Ms Ryder

As the child did not commit the tort of negligence, her parents accordingly had no vicarious liability to the plaintiff

Conclusion

The child was free from tortious responsibility for Ryder, thus, her parents also had no vicarious liability to Ryder

15 Legal Services Commission of South Australia n.d, Children and negligence, viewed 10 August 2020,

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ISSUE 2

Tracey Ryder v the 5-year-old girl’s parents

Legal issue

The legal issue is whether Ms Ryder can sue the 5-year-old girl's parents for their failure in supervising their child, which led to Ryder's bodily injury and financial losses or not

Considering the legal issue, there are three elements needed to be satisfied: DOC, Breach of DOC, and Causation 18

In terms of DOC, since the relationship between Ms Ryder and the parents does not fall within any of DOC established categories, the ‘neighbor test is applied It is reasonably predictable that ’ 19 allowing the child to play with liquid objects in public without supervision may lead to a liquid leak This might cause harm to anyone moving around the area Therefore, in this case, her parents owned the plaintiff's DOC

To indicate the breach of DOC, the following SOC's factors need to be taken into consideration 20 Firstly, the probability of a child unintentionally spilling liquid from the bubble bottle is as high

as the probability of someone slipping and getting hurt because of the liquid leaked Referring to the seriousness of harm, a slip-on the wet floor in a bad situation would even cause severe bodily injuries such as brain injury Meanwhile, the cost of taking precautions is extremely low, as parents only need to watch their children more carefully and responsibly Last but not least, social utility

is not applicable

About the causation, the spinal injury that the plaintiff had to suffer due to the slip was reasonably predictable

Conclusion

In brief, it can be concluded that the 5-year-old girl's parents were tortiously liable to Ms Ryder

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ISSUE 3

Tracey Ryder v Tom v Woodworths

Legal issue

The main legal issue is whether Tom, the defendant, committed the tort of negligence toward Ryder, the plaintiff, as he opens the bottle of bubble without warning the customer of the possible liquid leak, which results in Ryder’s injury

The subordinate legal issue is whether Woolworth Supermarket was vicariously liable for Tom’s conduct

Based on the main legal issue, three elements need to be examined: Duty of Care (DOC), breach

of DOC, and Causation 21

Firstly, the relationship between Ryder and Tom does not fall within the required relationship category, so the neighbour test was applied Opening a bottle of bubbles can not be considered ‘ ’ 22

dangerous or have closely or directly affect Ryder Hence, Tom does not owe Ryder DOC Regarding the principle of vicarious liability of employer and employee (cited above in the case 23

between Summer v Charles), since Tom does not owe Ryder DOC, Woolworth Supermarket was not vicariously liable

Conclusion

Overall, Tom does not owe Ryder DOC Thus, Woolworth Supermarket was not vicarious liable over Tom’s conduct Ryder cannot successfully sue Tom nor Woolworth Supermarket in this situation

21 Civil Law (Wrongs) Act 2002 (ACT) Chapter 4

22 Donoghue v Stevenson [1932] UKHL 100 (26 May 1932)

23 Australian Safeway Stores Pty Ltd v Zaluzna [1987] 162 CLR 479 (10 March 1987)

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ISSUE 4

Tracey Ryder v Robert

Legal issue

Mr Robert was the one who was standing near Ms Ryder when the accident happened Jumping

to the scene and attempting to help, he broke her left arm, which led to her 2-month hospitalization and cost her $15.000 for the medical bill The legal issue is whether Mr Robert committed a tort

of negligence to Ms Ryder or not

The relevant legal rule for this case is the tort of negligence (Jame, 2017, Business Law 4th ed,

page 118) (cited above in the case between the Summers v Chad Charles) To determine the tort

of negligence, three requirements are needed: (1) DOC, (2) Breach of DOC, and (3) Causation 24 Owing to the fact that Ms Ryder is the customer of Westfield Shopping Center and Mr Robert

is the passerby, the relationship between the two parties does not belong to any listed categories

of DOC Then, the "Reasonable Foreseeability Test" will be examined According to HLS Health Care, lifting a person up incorrectly might cause shoulder and back injuries to that person In 25 this case, Mr Robert's conduct of lifting Ms Ryder did cause a direct harm to her (he broke her left arm) As a result, Mr Robert owed Ms Ryder a DOC

The probability of harm from the action of lifting Ms Ryder up quickly is extremely high as HLS mentioned above Thus, the SOC is also higher Moreover, before that, Ms Ryder had already been suffering a spinal injury from the slip, so his careless conduct of lifting her up could make the seriousness of harm become more severe On the other hand, if Mr Robert had been more careful and lifted her up in the right way, her arm would not have been broken The cost of taking precautions is low and easy but Mr Robert failed to do it Hence, this was considered to

be a breach of DOC Besides, though Mr Robert's action stem from his wanting to help her out, this action did not work but coincidentally made her injury more serious So, this can not be considered as a social utility

In this scenario, Ms Ryder's broken arm is actual harm Without the conduct of Mr Robert, Ms Ryder would not have to suffer broken arm injury The 'but for' test is satisfied Moreover, the consequence from his reckless action is reasonably predictable, so he has tortious liability for it

25 Elissa, S 2017, ‘Injuries to Nurses and Carers by Lifting Patients Incorrectly- HLS’, hlshealthcare, 5 December

2017, viewed 25 July 2019, <https://www.hlshealthcare.com.au/potential-injuries- -nurses-and-carers-by-lifting- to patients-incorrectly/>

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Conclusion

All the aspects of the tort of negligence rules were examined It came to a conclusion that Mr Robert committed a tort of negligence to Ms Ryder As a result, Ms Ryder can successfully sue him and make him compensate her for the injury

ISSUE 5

Tracey Ryder v Westfield Shopping Center

Legal issue

Did Westfield Shopping Center have tortiously liability to Ryder since the Shopping center did not take appropriate action against the slippery floor in the Common Area which led to Ryder’s injuries

Considering the tort of negligence, three elements must be taken into account: Duty of care (DOC), Breach of DOC, and Causation26

First of all, the relationship between Ryder and Westfield Shopping Center at the time the incident happened was occupier and guest, which was listed in the categories of DOC Therefore, the defendant owed the plaintiff the duty of care

Second, the four components required in SOC (cited above in the case between Tracy Ryder v The 5-years-old girl) is applied to determine did the defendant breach the DOC Regarding the probability of harm, the injuries cause by the fall on a slippery floor in the mall can be serious, thus, the probability is high Likewise, the seriousness of harm is also high since the fall could cause serious trauma or even mortality In contrast to the cost of precaution, as the shopping center just needed to train its sanitation staff more carefully There was no social utility because the shopping center made profits out of its customers Finally, the gap between liquid spelling and Ryder’s incident is rather short, hence, the Westfield Shopping Center did breach the DOC

Conclusion

According to occupier’s liability rules, Ryder has shown that the Westfield Shopping center committed a tort of negligence and the shopping center also needed to compensate for Ryder’s injuries Hence, Ryder can successfully sue the Westfield Shopping Center

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