LAW 2447 – COMMERCIAL LAW assessment task 2 – team paper the first issue is whether peter, the plaintiff, can successfully sue evan, the defendant, for committing a tort of negligence when peter

The second issue is whether Evan can claim a contributory negligence against Peter to lower his liability when Peter allowed himself to be driven by a drunk driver and failed to wear a s

LAW 2447 – COMMERCIAL LAW

Assessment Task 2 – Team Paper

Course’s code and name: LAW 2447 – Commercial Law

Class group: Thursday morning

Lecturer’s name: Do Thi Huong Nhu

Team number: 32

Team members: Do Khanh Huyen – s3694634

Pham Thuy Nga – s3697073

Le Hoang Phong – s3741312

Rmit University Vietnam

Hanoi

Table of Contents

Scenario 1: 1

1.1 Peter v Evan: 1

1.2 Peter v Reid: 3

Scenario 2 5

2.1 Tom v BlackRock Café 5

2.2 Tom v James 6

Scenario 4: 7

4.1 Trevan v Isaac 7

4.2 Trevan v Olivia: 10

Scenario 3 11

3.1 Loan v Trinh 11

3.2 Loan v Huy 12

3.3 Loan v Nha Trang Jump Society 13

3.4 Huy v Hospital 14

Scenario 1:

1.1 Peter v Evan:

Legal Issues:

The first issue is whether Peter, the plaintiff, can successfully sue Evan, the defendant, for committing a tort of negligence when Peter, who was sitting in the passenger’s seat of a vehicle, suffered a neck injury because such vehicle skidding into the traffic light was driven by Evan, who was driving in the state of being intoxicated by a large consumption of alcohol.

The second issue is whether Evan can claim a contributory negligence against Peter to lower his liability when Peter allowed himself to be driven by a drunk driver and failed to wear a seatbelt at the time of the accident

Legal Rules:

First, it must be proven that the defendant owes the plaintiff a duty of care (DOC) In most scenarios, it is comparatively effortless to demonstrate the existence of a DOC given that the relationship between the defendant and the plaintiff is listed among the established categories of DOC If the established categories are not satisfied, in order to justify the

existence of DOC, the ‘Neighbor test’1 will be utilized to prove that the defendant’s conduct could potentially cause harm to others and the plaintiff is closely and directly affected by the defendant’s act

Next, it must be determined whether the defendant breached the DOC if he or she failed to meet the required standard of care (SOC), which refers to what a reasonable person would have done in the same position2 To ascertain the required SOC and whether the defendant violated the DOC, the court will profoundly consider four elements: the probability of harm3, the likely seriousness of harm4, the cost of taking precautions5, and the social usefulness6 Lastly, legal obligation can be divided between the two parties as the defendant can use a

‘contributory negligence’7 as a defence by providing evidence that the plaintiff was

Application:

Duty of Care

It is apparent that the relationship between Evan and Peter, the driver and passenger of the vehicle, falls within the established category of DOC – motorists and road users Therefore, there existed a DOC owed to Peter by Evan

Breach of DOC

Alcohol can influence people’s judgement, reduce concentration, decrease coordination and vision, thus, those who drive motor vehicles while being impaired by alcohol are incapable to meet the required SOC to drive within the speed limit, cautiously observe the traffic, cooperate with other road users and comply with traffic law This will produce a high probability to severe accidents Therefore, the probability of harm in this case is high The likely seriousness of harm is also high as motor vehicles accidents often lead to catastrophic consequences, including fatal injuries Other road users, most likely motorcyclists or pedestrians, could have been killed if they were close to the traffic light at the time of the accident

Regarding the burden of taking precautions, Evan could have prevented the accident to occur by sitting in the passenger seat and letting Reid, who was sober, drive the vehicle Thus, the cost of taking precautions in this scenario is low

1 Donoghue v Stevenson [1932] AC 562

2 Civil Law (Wrongs) Act 2002 (ACT) s 43(1); Civil Liability Act 2002 (NSW) s 5B(1); Civil Liability Act 2003

(Qld) s 9(1); Civil Liability Act 1936 (SA) s 32(1); Civil Liability Act 2002 (Tas) s 11(1); Wrongs Act 1958 (Vic) s 48(1); Civil Liability Act 2002 (WA) s 5B(1).

3 Bolton v Stone [1951] AC 850

4 Paris v Stepney Borough Council [1951] AC 367

5 Latimer v AEC Ltd [1953] A 643

6 Watt v Hertfordshire County Council [1954] 1 WLR 835

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

There is no relevant social utility involved in this context because the defendant’s conduct brought no advantage to the society

Based on the examination of the four factors above, Evan has breached the DOC owed to Peter

Defence

Evan can make a contributory negligent defence to argue that Peter contributed to his own injury by negligently accepting to be driven by a drunk driver and unbuckling his seat belt at the time of accident

Peter continued to stay in the car driven by Evan despite being aware that Evan was drunk and under fine suspension In the interests of his own safety, Peter could have exited the car, but he was considerably drunk due to large consumption of alcohol and unable to make a reliable assessment before accepting a ride home from the defendant As Peter was intoxicated at the time the accident took place and was counting on the care and skill

of a person knew to be intoxicated, contributory negligence on the part of Peter will be

Moreover, at the time of the accident, Peter failed to keep his seat belt fastened A presumption of contributory negligence on the part of Peter will be established, following the Road Traffic Act9

Conclusion:

To summarise, Evan owed and breached a DOC to Peter, caused Peter to suffer a neck injury Nevertheless, the judge can apportion the liability between Peter and Evan as Peter can be held liable for contributory negligence

1.2 Peter v Reid:

Legal Issues:

The legal issue is whether Reid, the defendant, committed a tort of negligence to Peter, the plaintiff when Reid was warned by Peter of Evan’s state of being drunk and under suspension, however, ignored this caution, and despite being the only sober person on the vehicle, Reid did not insist on driving and quickly allowed Evan to drive, causing an accident to happen and left Peter with the neck injury

Legal Rules:

8 Civil Law (Wrongs) Act 2002 (ACT) ss 96-96; Civil Liability Act 2002 (NSW) s 50; Personal Injuries (Liabilities and

Damages) Act 2003 (NT) ss 14-15; Civil Liability Act 2003 (Qld) ss 47-49; Civil Liability Act 1936 (SA) s 46-50; Civil Liability Act 2002 (Tas) s 5; Wrongs Act 1958 (Vic) s 14G: Civil Liability Act 2002 (WA) s 5L.

9 Civil Liability Act 1936 (SA) ss 49; Road Traffic Act 1961 (SA).

First, the existence of a DOC must be proven If the relationship between two parties does

cited above in the case between Peter v Evan).

Second, to determine whether the defendant has breached the DOC owed to the plaintiff, the ‘Reasonable person test’ and four key elements of SOC will be discussed (as cited

above in the case between Peter v Evan).

Application:

Duty of Care

As the relationship between Reid and Peter is not recognized among the established categories of DOC, the ‘Neighbor test’ is executed First, the act of ignoring Peter’s warning and letting a drunk person drive was potentially harmful to others Second, as they were riding in the same vehicle, Peter was closely and directly influenced by Reid’s behaviour Therefore, the ‘Neighbor test’ is satisfied and Reid owed Peter a DOC

Breach of DOC

Reid failed to meet the required SOC as Reid’s behavior cannot be seen as what a reasonable person would have done in the same situation A sober person, with regards

to his own safety, would have insisted on driving instead of allowing a drunk man steer the wheel A reasonable person under the same circumstances as Reid would have taken

To justify this statement, four major factors will be considered The probability and the likely seriousness of harm is high since letting a drunk person drive clearly not only can cause harm to the passengers but also other road users if an accident occurred The highest level of seriousness of harm could have been death if other road users were involved and killed in the crash The cost of taking precautions in this case is low Reid could have refused to let Evan in the car unless he sat in the passenger seat Moreover, Reid could have ignored Evan’s demand and drove off to avoid any risk of harm There is

no social usefulness involved in this case

Based on the above analysis, Reid breached his owed DOC to Peter

Conclusion:

Although it was not Reid’s fault that directly caused the accident, Reid’s conduct of negligence should be held responsible for Peter’s injury, thus, Peter can successfully sue Reid

10 Donoghue v Stevenson [1932] AC 562

11 Civil Law (Wrongs) Act 2002 (ACT) s 43(1); Civil Liability Act 2002 (NSW) s 5B(1); Civil Liability Act 2003

(Qld) s 9(1); Civil Liability Act 1936 (SA) s 32(1); Civil Liability Act 2002 (Tas) s 11(1); Wrongs Act 1958 (Vic) s 48(1); Civil Liability Act 2002 (WA) s 5B(1).

Scenario 2

2.1 Tom v BlackRock Café

Legal Issue

The legal issue in this case is whether Tom, the plaintiff can successfully sue Blackrock Cafe, the defendant for committing a tort of negligence when Tom got hit by the Cafe’s lighting grid which had crashed down on Tom and resulted in significant injuries to his neck and spine

Legal Rules

First, it must be verified whether the defendant owes the plaintiff a DOC If the established categories does not cover the relationship of two parties, to prove the presence of DOC, the ‘Neighbor test’12 will be brought in Next, to demonstrate the required SOC, the

relevant legal rules of The Council of the Shire of Wyong v Shirt will be implemented in this

above in the case of Peter v Evan).

proof that the plaintiff was partially negligent and hence contributed to his own injuries

Application:

Duty of Care

The relationship between Tom and Blackrock Café fits one of the established category of DOC which is Occupier and Guest Hence, Blackrock Café is proved to owe a DOC to Tom Breach of DOC

Blackrock Café did not meet the desired SOC because the act of not keeping the lighting grid secured to the ceiling can potentially make it become loose and cause serious injuries

to anyone in the plaintiff’s position

Applying four elements of SOC, it can be seen that the probability of harm is high because considering the circumstances of the Café when the live music is meant to encourage people to be excited and jump along, the lighting grid can easily fall down and hurt people The likely seriousness of harm is also high as the lightning grid is 4.5 to 5 meters big and if it falls, it will cause severe damage to people who stand below The plaintiff could have been unconscious if the grid hit directly to his head The cost of taking precaution is not expensive because Blackrock Café later hired a builder to settle the lighting framework to the ceiling to avoid any unfortunate possibilities This means that the burden of taking precaution is low

12 Donoghue v Stevenson [1932] AC 562

13 The Council of the Shire of Wyong v Shirt per Mason J [1980] 146 CLR 40

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

and the Café should have done this long before to prevent accidents The social utility is not applicable in this case

Defence

Tom is not held liable for any contributory negligence because at the time of the accident,

he was standing still and having a conversation with Ben

Conclusion

Based on the above analysis, Tom can successfully sue Blackrock Cafe for having a tortious liability

2.2 Tom v James

Legal Issue

The legal issue is whether James, the defendant, committed a tort of negligence to Tom, the plaintiff, when James leapt onto the bar table, waved his hands around and then leapt out at the lighting grid making the grid become loose and fall down on Tom, which left Tom a damage to his neck and spine

Legal Rules

First, the existence of a DOC must be proven If the relationship between two parties is

Second, to verify the breach of DOC, four factors of SOC will be analysed (as cited above in

the case of Peter v Evan).

Application

Duty of Care

The relationship between Tom and James is not under any established category of DOC as they are both guests of Blackrock Cafe A “Neighbor test” will be applied Tom and James are neighbors in law because they were in the same bar, thus, James’s action potentially caused harm to Tom closely and directly Consequently, James owed Tom a DOC

Breach of DOC

The probability of the harm in James’s conduct is high as his leaping onto the bar table and out like Tarzan at the lighting grid would potentially cause it to become loose, slip out of the ceiling hook and fall on those who are standing under the grid, leading to serious injuries and The likely seriousness of risk is high as his conduct could not only result in the loss of balance of those standing underneath but also make them pass out Cost of precautions is

15 Donoghue v Stevenson [1932] AC 562

apparently low as he could have simply controlled himself and not jumped on the table to avoid any accident Lastly, the social utility is not relevant in this case After all, James breached his DOC owed to Tom

Conclusion

In conclusion, James committed a tort of negligence toward Tom and can be sued by Tom

as a consequence

Scenario 4:

4.1 Trevan v Isaac

Legal Issues:

The first issue is whether there existed a legally enforceable contract between Isaac, the seller and Trevan, the buyer of the shorts

The second issue is whether Trevan, the buyer, can sue Isaac, the seller, for breaching the contract when he refused to sell the shorts to Trevan after Trevan had already informed Isaac of his acceptance to purchase the shorts

Legal Rules:

Rules of forming a contract:

To prove the existence of a contract between the two parties, three elements must be satisfied: Agreement, Consideration and Intention to create legal relations

First, a contractual agreement will be effective under these requirements: the offeror has created an offer, the offeree has accepted the offer and the offeree has communicated

The offeror’s offer must be clear and complete17 Moreover, the offer must be communicated, otherwise, it is not considered legally valid18 Offerors are entitled to

16 Smith v Hughes [1871] LR 6 QB 597

17 Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd - [2006] VSC 42

18 R v Clarke [1927] 40 CLR 227

19 Dickinson v Dodds (1876) 2 Ch D 463

The offeree’s acceptance must be clear and complete20 The acceptance must be effectively communicated between two parties, otherwise, the agreement is not completed21 The only exception relevant to this case is the postal rule The postal rule stated that the acceptance is effective and validates the contract as soon as the letter of acceptance is sent, not when it is received22 The postal rule is only applicable to postal communications and has no relevance

to instantaneous forms of communication, namely telephone calls or faxes23.

Second, consideration is the contribution of each party and the agreement is not enforceable without consideration24 Past consideration is invalid25 and consideration

Lastly, intention to generate legal relations is crucial to legally enforce a contract When the agreement is established within a business context, each party will be presumed to be

Rules of negating a contract:

A formed contract can still be unenforceable if there exists a lack of formality A legislation that demands certain contracts to be in writing and signed to be operative and enforceable Regarding contracts for the sales of goods worth more than $20, they must

be evidenced in writing and signed to be legally enforceable However, this rule only

Application:

Agreement:

The existence of an agreement between Isaac and Trevan is justified as it met all 3

and Trevan has accepted this offer by writing back to Isaac a letter to purchase the shorts The acceptance of Trevan is communicated to Isaac

20 Scammell and Nephew Ltd v Ouston [1941] 1 AC 251

21 Felthouse v Bindley [1862] 142 ER 107

22 Adams v Lindsell 106 ER 250

23 Brinkibon Ltd v Stahag Stahl Und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34

24 Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87

25 Roscorla v Thomas [1842] 3 QB 234

26 Biotechnology Australia Pty Ltd v Pace [1988] 15 NSWLR 130

27 Edwards v Skyways Ltd [1964] 1 WLR 349

28 Rose& Frank Co v JR Crompton & Brothers Ltd [1925] AC 445

29 Sales of Goods Act 1896 (Tas) s 9; Sales of Goods Act 1895 (WA) s 4

The enforceability of the contract was unaffected by Isaac’s revoking the offer because the revocation was invalid Offerors are allowed to revoke their offers anytime before acceptance, however, Isaac phoned Trevan to withdraw the offer after the acceptance was effective and the contract was legally formed Eventhough Isaac received the acceptance letter on November 17th, applying the postal rule, the acceptance already became effective by the time

it was sent on November 13th Despite Trevan calling Isaac on November 14th to revoke the offer and called Isaac again to accept the offer on the same day, this was sent by instantaneous communication, thus, it was not in effect until it is actually received by Isaac Considerations:

The considerations of this contract are the pair of shorts worn by player Robinho when he played his first game for City paid by Isaac and $1000 paid by Trevan All considerations meet the relevant rules as they are neither exchanged in the past nor insufficent in legal value

Intention:

Although Isaac and Trevan are both soccer fans and presumably knew each other before the contract, it was clear that their agreement was established in a business context, not a domestic context Hence, it would be presumed that the agreement had the intention to

be legally enforceable No evidence in this case that suggested any lack of intention to make legal relations from either party, thus, it is impossible to rebut this presumption Lack of formality:

Although the contract between Isaac and Trevan involved the sales of goods for more than $20 and was not in writing and signed, the contract is established in Melbourne, thus the addressed rule was not applicable and the contract is still legally enforceable

Conclusion

As three crucial requirements to form a contract are satisfied, it can be summarized an enforceable contract between Isaac and Trevan that conforms to the law existed Therefore, Trevan can sue Isaac for refusing to follow his legal obligation as required in the contract.

4.2 Trevan v Olivia:

Legal Issues:

The first issue is whether there existed a legally enforceable contract between Olivia, who offered to sell Trevan the shoes Robinho had worn and Trevan, the buyer of the shoes Another issue is whether Trevan, the offeree, can sue Olivia, the offeror, for breaching the contract when she sold the shoes to someone else after she promised to keep the offer