Whether ned can successfully sue quick for her violation of the “tort of negligence” (crucial issue) and the defendant quick breached a DOC to the plaintiff (ned)

Ned plaintiff v Sara Quick defendant Legal Issues Whether Ned can successfully sue Quick for her violation of the “Tort of negligence” crucial issue and the defendant Quick breached a DO

ASSIGNMENT 2: COMMERCIAL LAW

Table of Contents

LIST OF ACRONYMS 3

SCENARIO 1: 3

*Tortious liability 3

1 Ned (plaintiff) v Sara Quick (defendant) 3

2 Quick (plaintiff) v Dr.Duy (defendant) 4

3 Quick (plaintiff) v The Oakleigh hospital (defendant) 5

4 Ned (plaintiff) v the company (defendant) 6

*Vicarious liability 7

5 Ned (plaintiff) v the company (defendant) 7

6 Quick (plaintiff) v the hospital (defendant) 8

SCENARIO 2: 8

*Tortious Liability 8

1 Tung (plaintiff) v Chu (defendant) 8

2 Binh (plaintiff) v The hospital (defendant) 9

3 Tung (plantiff) v The Blackrock Café’s Ownwer (defendant) 11

4 Binh (plaintiff) v Tung (defendant) 12

SCENARIO 3a *Contract Law 12

1 Gorden (plantiff) v Outback Burger (defendant) 12

2 Sam (plaintiff) v Outback Burger (defendant) 14

SCENARIO 3b 15

1 Carl (plaintiff) v Direct (Defendant) 15

2 Carl (plaintiff) v Opera (Defendant) 15

LIST OFACRONYMS DOC: Duty of care NT: Neighbour Test

SOC: Standard of care TON: Tort of Negligence VL: Vicarious Liability CN: Contributory Negligence

SCENARIO 1:

*Tortious liability

1 Ned (plaintiff) v Sara Quick (defendant) Legal Issues

Whether Ned can successfully sue Quick for her violation of the “Tort of negligence” (crucial issue) and the defendant Quick breached a DOC to the plaintiff (Ned)

Duty of Care

In the case of the “NT”1, it is reasonable to expect that Quick in the throng would be damaging to others Furthermore, Quick actions had a direct impact on Ned As a result, the exam was passed, and Quick owed Ned the DOC.

Breach of Duty of Care

The case Blake v Galloway 2 and Hackshaw v Shaw 3 are applied There are four requirements analyzed to justify whether Quick breached DOC according to 4,5,6and7 Firstly, as the scooter’s brake cannot work well when driving in store, driving scooter in store and then raising speed will easily cause crash Therefore, the probability of harm is high Secondly, she suddenly lost control and hit Ned by a scooter and cause the victim a broken leg However, the worst case is unlikely to cause death Therefore, the likely seriousness of harm is medium Thirdly, the burden of precaution

is low and easy simply by slowing down to walking speed and observe the

1 Donoghue v Stevenson (1932) AC 562

2 Blake v Galloway [2004] 3 All ER 315

3 Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662- 663

4 Bolton v Stone [1951] AC 850.

5 Paris v Stepney Borough Council [1951] AC 367.

6 Latimer V AEC LTD [1953] AC 643 at [193].

7 Ward v London County Council [1938] 2 All ER 341

surrounding carefully After analyzing the four requirements, Quick and Ned failed to meet the required standard of care and breached their duty of care.

Conclusion

In conclusion, Ned can successfully sue Quick under TON for his suffered injuries.

2 Quick (plaintiff) v Dr.Duy (defendant) Issues

Whether Quick can sue Dr Duy under TON for not informing her the risk of sympathetic ophthalmia before the operation (crucial issue) and whether the plaintiff could be contributory negligent to this accident (subordinate issue).

Duty of Care

The first issue is to identify “whether Dr.Duy owed Quick a DOC” The relationship between

Dr Duy and Quick obviously falls within Established categories of DOC, doctors-patients relationship, stated in Rogers and Whitaker8 Therefore, Dr.Duy owed Quick a DOC.

Breach of Duty of Care

To determine whether Dr.Duy breached the DOC, four criteria were examined Firstly, the probability

of harm is low because Quick's right eye procedure has a risk of affecting her left eye of about 1:1400, and not all cases result in blindness in the affected eye Despite the low probability of harm, the severity

of harm is significant because Quick went almost completely blind, which means she will remain blind for the rest of her life, lowering her psychology, impairing her daily routine and career, and preventing her from being a normal person Thirdly, the cost of precautions is quite easy and inexpensive, such as informing Quick about the danger of sympathetic ophthalmia before the operation, so she may decide whether to have the surgery or not Furthermore, the precaution was required and had to be carried out

by Dr.Duy as a doctor's responsibility The last factor is social utility which is not crucial in this scenario as it

8 Rogers and Whitaker (1992) 175 CLR 479

was not the act useful for society As a result, Dr Duy failed to fulfill the requisite SOC and breached the DOC by failing to act as a reasonable doctor.

Defence

According to Ingram v Britte9, there is no contributory negligence defense because it is reported that Quick had constantly questioned the doctor about the various complications of operation, including the risk of sympathetic ophthalmia She was just a patient with several injuries who knew nothing about medicine, especially the operation's effects on her left eye, which she wanted to ask the doctor about Dr.Duy was required to notify the plaintiff of all potential complications and hazards, but the defendant failed to do so carefully As a result, Quick cannot be criticized for not specifically inquiring if the operation on her right eye might have an impact on her left eye.

Conclusion:

Dr Duy committed TON and Quick can sue successfully him under TON

3 Quick (plaintiff) v The Oakleigh hospital (defendant) Issue

The crucial issue is whether Sara Quick can successfully sue Oakleigh Hospital under TON when they hire a doctor who did not graduate from Melbourne Medical School and let him operate for Quick which led to Quick’s eye injuries The subordinate issue is whether Quick could be contributory negligent to this accident.

DOC

The first issue is whether the Oakleigh hospital owed Quick a DOC Based on Australian Safeway Stores Pty Ltd v Zaluzna10, the defendant obviously owed the plaintiff a DOC because

there is a straightforward relationship between occupiers (the Oakleigh hospital) and entrants (Quick).

Breach of DOC

9 Ingram v Britten [1994] Aust Torts Reports 81-291 (p.238)

10 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479

The following factors are examined in determining if the defendant breached the DOC Firstly, the probability of harm is First, the probability of harm is likely low to medium due to the reason that the probability of hospital would not check the doctor background is low Moreover, in this case, he was well-known for his dexterity, which means he had rehearsed and saved the lives of several people However, the seriousness of harm is significantly high Even though a very skillful doctor has experience in saving people life, but in fact, did not graduate from Melbourne Medical School meaning

we cannot guarantee his talent and knowledge and he may lack of knowledge in some areas and as a result, may put patients into dangerous situation Thirdly, the cost of taking precautions was simple and inexpensive, such as patiently spending more time to examine the doctor’s background Finally, it has high social utility because the hospital was in desperate need of doctors at the time, and Dr Duy was a capable physician who they could not dismiss There could have been a lot of unsaved individuals if they hadn't hired him Quick could, however, change doctors or go to a different hospital with minimal restrictions if the restoration of his right eye's vision is not urgent Therefore, the defendant breached DOC they owed the plaintiff due to his failure to meet SOC

However, according to case Cork v Kirby MacLean 11and Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound)12 causation successfully established since

without the hospital’s carelessness, the accident would not happen due to Dr Duy’s conduct.

Additionally, remoteness was reasonably foreseeable due to the reason that the hospital hasn’t carefully checking the background of their doctor Hence, unqualify doctor hired can cost failed operation creating dangerousness to patient.

Conclusion:

Quick can sue the hospital under TON because harm caused by breach was satisfied.

4 Ned (plaintiff) v the company (defendant) Legal Issue

Whether Ned can sue company under Ton for providing Quick incorrect riding scooters

technique which Quick applied in this case, suffering from serious eye injury and breaking Ned’s leg

DOC

Whether the company owed Ned a DOC The company obviously owed the plaintiff a DOC since an occupier who is the owner of a property has the responsibility to ensure safety for people such as the plaintiff based on 10 (cited above) occupiers-entrants relationship The

11 Cork v Kirby MacLean Ltd [1952] 2 All ER 402

12 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound) [1961] AC 388

company’s conduct was potentially harmful, as they required Quick to run the scooters with uneasily controlling brake as a reasonable providing vehicles company should not have done It was predictable that providing incorrect scooters-riding technique could make the clients injured after running it, particularly broken leg here However, Quick was the one who closely and directly bumping into Ned and causing injuries Therefore, the company did not owe a DOC

Conclusion:

Ned cannot sue the company under TON because Ned was not the ‘neighbor’ of the company

*Vicarious liability

5 Ned (plaintiff) v the company (defendant)

The legal issue is whether the company was vicariously liable toward the case between Ned v Quick

According to Century Insurance v Northern Ireland Road Transport Board13, an employer is vicariously liable for damages incurred by the negligence of the employee if this harmful act was carried out within the job area In this case, Quick is a part time employee, she was performing approved job for the company's advantage Thus, the company was vicariously liable for Quick’s actions.

In conclusion, Quick can sue the company under vicarious liability successfully, which will be more advantageous for Ned because the company will have more probability to pay compensation than Quick (employee).

6 Quick (plaintiff) v the hospital (defendant)

The legal issue is whether the Oakleigh hospital was vicariously liable toward the case

between Quick v Dr.Duy

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

Regarding12 (cited above), if the harmful act was done within the "work field," an employer is vicariously responsible for damages caused by the employee's negligence Dr Duy was doing his duty as a doctor working at a hospital in unauthorized manner He did not tell Quick about the risk before operation resulting in inflammation and sympathetic ophthalmia in his left eye Additionally, the hospital owned non-delegable duty of care to its patient – Quick according to

Roe v ministry of Health14 The duty of care extends to negligent acts and not to intentionally harmful by Dr Duy Therefore, the hospital was vicariously liable for Dr Duy’s actions.

In conclusion, Quick can successfully sue the hospital under vicarious liability, which will bring more benefits for Quick than suing Dr Duy due to higher probability to receive indemnification

SCENARIO 2:

*Tortious Liability

1 Tung (plaintiff) v Chu (defendant) Issue

The crucial issue is whether Chu owes a DOC to Tung because his action on the lighting grid directly led to Tung’s injuries The subordinate issues are whether Chu has breached the DOC and Chu can ask for CN.

DOC

The first problem is to find out if Chu owes Tung a DOC With the application of the ‘NT’ of 1

(cited above) It can be confirmed that the defendant owes the plaintiff a DOC.

At first, it was foreseeable for Chu that the accident would occur if he did not perform reasonable action Waving hands and leaping out at the lightning grid was foreseeably harmful to other people In this case, Tung was directly injured by Chu’s action (suffering from significant soft tissue to his neck and spine) Therefore, the test is satisfied, Chu owed Tung the DOC

14 Roe v ministry of Health [1954] 2 QB 66

Breach of DOC

There are four requirements analyzed to justify whether Chu breached DOC Firstly, everyone knows that someone would injure if that person did not aware of obstacles falling from the ceiling Moreover, the bar’s lighting is casually dim to stimulate the atmosphere, which in this case that Chu leaping around and might crash with people when he uncontrolling himself So, the possibility of harm is medium Next, in the situation that an accident occurs, the falling of the lighting grid obviously cause the victim to suffer from mild to severe injury The worst case is likely to cause death Therefore, the likely seriousness of harm is medium Thirdly, the burden of taking precautions is cheap and easy because the defendant can simply request the band to notify the guests before reaching the chorus line and control himself from doing what a reasonable person would do in this situation Finally, social utility in this case is not important After analyzing the four requirements, Chu failed to meet the required SOC and breached DOC

Conclusion

In conclusion, Tung can successfully sue Chu under TON for his suffered injuries.

2 Binh (plaintiff) v The hospital (defendant) Issue

The main issue is whether Binh can successfully sue the hospital under TON for letting the stairs being slippery so that the plaintiff walked through on the way to the hospital garden and fell, resulting in his injuries The subordinate issue is whether Binh could be contributory negligent to this accident.

DOC

The first issue is whether the hospital owed Binh a DOC The hospital obviously owed the plaintiff a DOC since an occupier who is the owner of a property has the responsibility to ensure safety for people such as the plaintiff based on 10 (cited above) occupiers-guests relationship and the defendant needs to make preventions for not to cause harm to others15.

15 Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [45].

Breached of DOC

There are factors that needed to be analyzed for determining whether the hospital breached DOC Firstly, the probability of harm is medium because it was foreseeable that anyone could using the floor and stairs and suffer accidents such as falling down the stairs without any notice before the cleansing hours This means the stairs are daily closed until 7am to prevent others entering while people rarely using at that time and 7am is regular opening time since the hospital was established Secondly, the likely seriousness of harm is significantly high as an abrupt fall caused by slippery could cause a terrible injury It could have led to the death if he had not founded out on time Yet, Binh broke his arm

in this case Thirdly, the cost of taking precaution is cheap and easy in this case by putting a warning slippery sign to prevent patients walking through and get injure Moreover, the hospital can quickly move the cleansing time toward a little earlier for that day in order to protect their patients Lastly, there

is no social utility issue in this situation Hence, the hospital failed to do what a reasonable hospital would have done in the circumstances (failed to meet SOC), therefore, they breached DOC they owed Binh

Defence

According to civil liability legislation of Ingram v Britten16 (cited above), if the plaintiff contributed to their own injury, liability will be appointed between the defendant and the plaintiff In this case, Binh could raise his contributory defense because he should have known that yesterday was heavy raining which led to the slippery floor and stairs, so he must take good care of himself and being more careful in the next morning Hence, the plaintiff was also negligent along with the defendant’s negligence.

Conclusion:

Binh will not totally successful in suing the hospital The liability will be appointed between the plaintiff (50%) and the defendant (50%) because both of them were negligent.

3 Tung (plantiff) v The Blackrock Café’s Ownwer (defendant) Issue

The crucial issue is whether the defendant owes a DOC to Tung because they did not provide enough safety equipment for the crowd size event of 500 people, which indirectly lead to Tung’s