Consequently, peter can sue evan successfully under tort of negligence and based on the contributory negligence defence , evan can partly reduce his liability

Secondly, the likely seriousness of harm4 is medium to high, it can be seen that Peter suffered a fractured neck and traffic accident may life- threatening for Peter.. Moreover, Reid and

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Commercial Law

Assessment Task 2

TEAM PAPER

Class Time: Tuesday – 11:30 a.m.

Lecturer’s Name: Son Nguyen Tan

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TABLE OF CONTENTS

SCENARIO 1 2

1 Peter v Evan 2

2 Peter v Reid 3

SCENARIO 2 4

1 Tom v James 4

2 Tom v Blackrock Café 5

3 Tom v the Breakers 5

SCENARIO 3 6

1 Loan v Tung 6

2 Loan v Nha Trang Jump Society 6

3 Huy v Loan 7

4 Huy v Tung 8

5 Huy v Nha Trang Society Jump 8

6 Loan v Trinh 9

7 Huy v The hospital 9

SCENARIO 4 10

1 Trevan v Issac 10

2 Issac v Trevan 10

3 Trevan v Olivia 11

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SCENARIO 1

Peter and Evan drank a lot of alcohol, but Reid was the only one who didn't So, Reid truly would be a driver, but he gave up that position to Evan because of Evan’s intimidation and assault Additionally, Evan drank a lot of alcohol, so he could not control the steering wheel leading an accident for Peter broken his fractured neck

Did Evan (the defendant) owe Peter (the plaintiff) a DOC? If so, did Evan breach the DOC for causing an accident of broking Peter’s neck?

Since, the relationship between Evan and Peter is unrecognized, therefore the

"Neighbor Test" 1 is applied Because Evan consumed a large quantity of alcohol before driving so obviously, he lost control of the steering and it conducted potentially harmful Peter Also, both of them sit in the same car and Peter can be directly and closely affected

by Evan’s conduct Therefore, the neighbor test is satisfied, Evan owed Peter a DOC

Next, deciding whether Evan breached a DOC to Peter based on four factors2 is necessary Firstly, the probability of harm3 is high because basically, Evan drunk a lot of alcohol, the loss of control of the steering as well as the wrong ability to control the car is certain to happen Secondly, the likely seriousness of harm4 is medium to high, it can be seen that Peter suffered a fractured neck and traffic accident may life- threatening for Peter Next, if Evan did not insist on driver’s seat, the accident would not occur, hence, the cost of taking the precaution5 is easy and cheap Lastly, the defendant’s action made no harmful to society so social utility6 is not mentioned Hence, Evan breached the DOC to Peter for his action.

Nevertheless, Peter was the partial defence of the danger It is clear that Peter unbuckled his seatbelt at the time of the accident, which is considered as the main factor leaded to injuries So, Peter did this action negligently Besides, Peter also consumed too much beer, tired and

1 Donoghue v Stevenson [1932] AC 562

2 Section 9(2) of the Civil Liability Act 2003 [34]

3 Bolton v Stone [1951] AC 850 – the probability of harm

4 Paris v Stepney Borough Council [1951] AC 367 – the seriousness of harm

5 Latimer v AEC Ltd [1953] AC 643 – the cost of taking precaution

6 Watt v Hertfordshire County Council [1954] 1 Wlr 835 CA – social utility

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could not be bothered moving, he even didn’t give complaints At this point, Peter's negligence contributed to his injury

Consequently, Peter can sue Evan successfully under tort of negligence and based on the Contributory Negligence Defence7, Evan can partly reduce his liability

Whether Reid (the defendant) owed Peter (the plaintiff) a DOC? And whether Reid breach DOC to Peter?

The relationships between Peter and Reid is unrecognized, therefore we apply the

“Neighbor test”8 The defendant’s action is potentially harmful to the plaintiff because Reid left to driver’s seat and give it to Evan to drive, who had consumed a large quantity of alcohol and with fine suspension in the past Moreover, Reid and Peter also sit on the same car,

so it closely and directly affects on the plaintiff, hence, Reid owed Peter a DOC

To decide whether Reid breached the DOC to Peter, we consider four requirements9 Firstly, the probability of harm10 is high because Peter called out for Peter that Evan had under fine suspension and he had drunk a large of alcohol Therefore, when Reid gave the driver’s

seat for Evan, it can be seen that the accident occurred is very easy and high Next, the likely seriousness of harm11 is medium to high because Peter suffered a broken neck injury and it can severely lead to higher death due to the intoxicated driver which the ability of awareness is low Then, it was clear that Reid could ignore the threats and not give the driver seat to Evan, the accident would not happen, which the cost of taking precaution12 is easy and cheap Lastly, there is no social utility13 Hence, Reid breached the DOC to Peter

However, Contributory Negligence Defence14 could be applied for Reid, Peter already aware of dangerous but he removed the seatbelt and resulted in injuries Therefore, the defendant can apply this rule to reduce his liability

7 Ingram v Britten (1994).

8 Donoghue v Stevenson [1932] AC 562- cited above

9 Section 9(2) of the Civil Liability Act 2003 [34]- cited above

10 Bolton v Stone [1951] AC 850 – the probability of harm- cited above

11 Paris v Stepney Borough Council [1951] AC 367 – the seriousness of harm- cited above

12 Latimer v AEC Ltd [1953] AC 643 – the cost of taking precaution – cited above

13 Watt v Hertfordshire County Council [1954] 1 Wlr 835 CA – social utility – cited above

14 Ingram v Britten (1994).

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Overall, Peter can sue Reid successfully under the breaching of DOC and Reid can defence by Contributory Negligence Defence to reduce liability

SCENARIO 2

At about 12:30 a.m on Saturday 10 June 1995, Tom visited Blackrock Café with his friend It was actually a nightclub where there was a band – the Breakers, who regularly played lively

music here When the band called “Jump” in their song, people were dancing and jumping.

Unfortunately, there was an accident in which James (a man in the crowd) waved his hands and the leapt the lighting grids, making it loose and fell on Tom Consequently, Tom suffered significant soft-tissue injuries to his neck and spine

Whether the defendant (James) owed the plaintiff’s (Tom) a DOC? And if yes, did he breached the DOC for causing severe injuries to Tom?

Since the defendant and the plaintiff have no recognized relationship, ‘Neighbor Test’15 should be done They were at the same situation and James waved his hand, leapt out at the lighting grids, crashing it down on Tom’s head, which means the defendant closely and directly affected the plaintiff Hence, James owed Tom a DOC

In order to determine whether James breach the DOC and be responsible for the Tom’s injury, four elements should be considered16 Firstly, the probability of harm17 is high because James was leaping the lighting grids, that force might affect the grids becomes loose and basically it is easy to crash down to anyone nearby Secondly, the likely seriousness of harm18

is medium, as injuries caused by grids made Tom suffered the serious damage regarding his neck and spine Thirdly, since the defendant could choose not to dance excitedly to avoid the risk, so the burden of taking precaution19 is easy and cheap Finally, the defendant’s conduct brought no usefulness to the society so there is no social utility20 in this case Shortly, Tom can successfully sue James under the breaching of DOC

15 Donoghue v Stevenson [1932] AC 562 at 580 – cited above

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2 Tom v Blackrock Café

Whether the defendant (Blackrock Cafe) owed the plaintiff’s (Tom) a DOC? And if

so, did they breach the DOC?

In this case, the defendant and the plaintiff have recognized relationship which is

“Occupier - Visitor” so Blackrock Café owed Tom a DOC

Since the DOC is obvious, four elements21 should be analyzed to determine if Blackrock

Cafe breach the DOC and be responsible for the Tom’s injury Regarding the probability of harm22, it is at high level because the fact is that the wire cable frayed or broke so, especially it was only hocks on the ceiling rather than fixedly hanged on, so it is easy to cause accidents when the grids were able to swing Next, the likely seriousness of harm23 is medium, in which Tom had been injured by the crashing of the loose cables Besides, it is evident that the cost of precautions24 is cheap and easy because two or three days after the incident, the lighting grids was re-fixed by using eyehooks and a chain to prevent the slipping off the hooks This can be considered that the Cafe’s owner could expected the accident, but they just fixed it until the accident occurred Lastly, the social utility25 is not examined in this case since the defendant’s action brings no benefits to the society Therefore, Tom can successfully sue the Blackrock Cafe under the DOC

Whether the plaintiff’s (Tom) can sue the defendant (the Breakers) under the breaching of DOC?

As there is no recognized relationship between the defendant and the plaintiff so

‘Neighbor Test’26 should be conducted They were at the same situation, but the Breakers did not directly and closely caused Tom’s accident, hence, they do not owed Tom a DOC

so Tom cannot sue them for breaching the DOC

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SCENARIO 3

In this scenario, Loan consumed four beers and began to feel dizzy making her to walk and fall off the sidewalk and caused an accident with Trinh (the driver of a car using a phone), causing Loan a bruised arm After that, since she just received certificate and want to train parachute, she came to Nhan Trang Jump Society and meet Minh (the manager) Then he managed her to practice with Tung, even though he received some complaints about Tung recently When Tung and Loan were descending through the air, Tung had forgotten the attached clip between him and Loan Additionally, Loan was just a 3-hour trainee, it is difficult to control parachute with her bruised arm so then she hit the ground hard and broke legs severely Simultaneously, Huy (a parachute trainee) was standing on the ground,

he was tangled in the parachute cords and suffered serious facial and eyes injuries

Whether the defendant (Tung) owed the plaintiff (Loan) the DOC, and did Tung breached the DOC to the plaintiff by causing her injuries?

Since the DOC is obvious, four elements27 should be analyzed Regarding the probability of harm28, it is high because Tung forgot to attach the clip and Loan was new to this game accompanied with playing by her bruised arm, so it easily causes incident Next, the likely seriousness of harm29 is low to medium, since Loan had broken her legs Besides, the cost of precautions30 could be easy because Tung could be more careful to avoid risk, but he didn’t Lastly, there is no social utility31 Therefore, Loan can sue the Tung under breaching the DOC.

There are two legal issues would be examined: (1) whether the defendant (Nha Trang Jump Society) owned the plaintiff’s (Loan) the DOC, (2) whether the defendant is vicariously liable for Loan’s injury

There is the recognized relationship between the defendant and plaintiff which is

“Occupier – Guests”32 Hence, Nha Trang Jump did owe Loan a DOC

32 James, 2017, Business Law 4th ed., page 220

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Furthermore, in order to determine whether the defendant took the vicarious liability, three requirements33 must be identified namely: (1) Tort must be committed, (2) Must be committed by the employee and (3) Must be in the course of employment In this case, Tung

was in “Employer – Employee” relationship with Nha Trang Jump, he was taking tasks under the benefits of the employer and actually he committed tort (Loan’s accident) Therefore, the defendant was vicariously liable for Loan’s injury

Whether Loan (the defendant) owed Huy (the plaintiff) a DOC? If so, did Loan breach

the DOC of causing the plaintiff’s facial and eye injuries?

The relationship between Huy and Loan doesn't fall into the establish categories of DOC, hence, the “neighbor test”34 is applied Loan’s action is potentially harmful to Huy because when Loan fell from above with uncontrolled of her parachute, it got entangled in Huy Resulting in the plaintiff dragged 10 meters above the ground, causing serious injuries to his face and eyes Therefore, it clearly be seen that Loan’s action is potentially harmful, closely and directly to Huy, hence, Loan owed the DOC to Huy

To decide whether Loan breach her DOC Firstly, the probability of harm35 is high because Loan's coach is Tung, who has received lots of complaints about sketchy training In addition, Loan had previously been injured in the bruised arm, so her control was limited and receiving many complaints from customers may show that Tung's negligence is very likely to happen, hence, it can lead to occur an accident is high Secondly, the likely seriousness of harm36 is medium because Huy suffered face and eye injuries It can be considered not harmful

as well as threaten to life Next, the cost of taking precaution37 is difficult because Loan did not expect someone there and was only trained in 3 hours, which means she doesn't enough experience as well as skill to solve and control any trouble when jumping Lastly, there is no social utility38 Therefore, in this case, Loan owed Huy a DOC by causing damage to the face and eyes of Huy, but the defendant not breach DOC to the plaintiff

33 Greene, B 2013, 'Chapter 12 Vicarious liability', Course Notes: Tort Law, Taylor and Francis, London.

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4 Huy v Tung

Whether the defendant (Tung) owed the DOC to the plaintiff (Huy) and if so, whether Tung breached the DOC to the plaintiff by causing Huy’s injuries

The relationship between Huy and Tung is not recognized, hence we apply “Neighbor

test”39 Tung's action is potentially harmful to the plaintiff because he forgot to attach two large steel clips between him and Loan so due to his mistake, Loan can't control through the air Because of Loan only a trainee with 3 hours So, in this, the defendant's conduct directly and closely affected on Huy and in this case, Tung owed the DOC to Huy

Regarding whether Tung breached the DOC to the plaintiff by causing Huy’s injuries Firstly, the probability of harm40 is medium because the defendant had a highly experience parachute instructor, but he was also complained by many customers about Tung's rush training.

So, the chance to occur was medium Secondly, the likely seriousness of harm41 is medium because Huy only suffered facial and eye injuries, so it doesn't life-threatening to the plaintiff Next, the cost of taking precaution42 is easy and cheap It can be seen that Tung only need more careful when training parachute trainee and more focus to avoid distracted and an accident would not occur Lastly, there is no social utility43 Therefore, Tung breach the DOC to Huy by causing Huy's face and eye injuries and Huy can sue Tung under tort of negligence.

Whether Nha Trang Jump Society (the defendant) breached the DOC to Huy (the plaintiff)

and whether the defendant is vicariously liable for Huy’s injury?

The relationship between the defendant and the plaintiff is recognized as “Occupiers –

Guests”44, hence, the defendant owed Huy a DOC

However, to identify whether the defendant took vicariously liable for Huy’s injury due

to their employee’s action (Tung) There are 3 requirements that we need to clarify (1) be responsible for harm and consequences caused by other, (2) Occur in the employer-employee context and (3) Harmful actions are performed within the “scope of employment”45 It can be seen that the relationship between Minh and Tung is “employer – employee” and Tung was

44 James, 2017, Business Law 4th ed., page 220 – cited above

45 Century Insurance v Northern Island Road Transport Board [1942] 72 Ll.L.Rep 119

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violated tort of negligence (as proven above) So, the defendant has to vicariously liable to Huy.

In conclusion, the plaintiff can sue the defendant successfully

Whether Trinh (the defendant) owe Loan (the plaintiff) a DOC for causing her severe injury? And did Trinh breach the DOC to Loan?

The relationship between Loan and Trinh fall into the established categories is

“Motorists - Road users”46 So, Trinh owed Loan a DOC

To identify whether a DOC was breached, four factors 47 is clarified Firstly, the probability of harm48 is high because of using the phone while driving is easy to cause accidents Secondly, the likely seriousness of harm49 is low It can be seen that Loan only suffered a bruised arm, which not damaged to life Then, the cost of taking precaution50 is easy and cheap because if Trinh does not use the phone to message you while driving, then the accident will not happen Lastly, there is no social utility51 Therefore, Trinh breached the DOC to Loan and Loan can sue Trinh successfully

Whether the defendant (Hospital) owed the plaintiff (Huy) the DOC? And if so, whether the hospital breach the DOC to Huy?

There is no relationship between the defendant and the plaintiff, hence

“Neighbor test”52 is required The situation where Huy walked to the hospital garden and fell down the slippery stairs at 5 am due to a very rainy night At the time, it was not the hospital's cleaning time because the hospital's cleaning policy is from 7 am to 11 pm so the floor will not be cleaned until 7 am Therefore, the hospital does not directly affect or harm Huy Because of the carelessness caused by the plaintiff, the neighbor test was not applied, the defendant did not owe the DOC and did not breach the DOC to the plaintiff

46 James, 2017, Business Law 4th ed., page 220 – cited above

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