Case 1 ms tormey v tom and ben issue whether ms tormey can successfully sue tom and ben in the tort of negl

Case 2: Mathew v John Issue: Can Mathew successfully sue John under the Tort of Negligence because John's bag of fruit caused Mathew a broken arm?. Application: Firstly, the case showed

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LAW2447 – COMMERCIAL LAW ASSESSMENT 2 – TEAM PAPER

Nguyen Khanh Nhu – s3891489

Doan Bach Thuy Vy – s3891484

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I SCENARIO 1 3

Case 1: Ms Tormey v Tom and Ben 3

Case 2: Mathew v John 3

Case 3: Mathew v Coles 4

a Vicarious Liability 4

b Tort of negligence 5

Case 4: Ms Tormey v Coles 6

I SCENARIO 2 7

Case 1: Loan v Minh 7

a Forming a contract 7

b Vicarious Liability 7

Case 2: Loan v Trinh 7

Case 3: Loan v Tung 8

Case 4: Huy v Loan 9

Case 5: Huy v Tung 10

Case 6: Huy v Minh 11

III SCENARIO 3 11

Case 1: Simon v Nicole 11

Case 2: Simon v Joe 12

Case 3: Nicole v Joe 13

Case 4: Nicole v White Rock South Surrey Taxi 13

IV SCENARIO 4 14

Case: Winson v Julia 14

Case 1: Grassy Plains v Sierra Foxtrot 14

Case 2: Green Grow v Sierra Foxtrot 15

Case 3: Sow This! v Sierra Foxtrot 15

Case 4: Sow This! v Sierra Foxtrot 15

V BIBLIOGRAPHY 16

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I SCENARIO 1

Case 1: Ms Tormey v Tom and Ben Issue: Whether Ms Tormey can successfully sue Tom and Ben in the Tort of negligence

because Tom and Ben caused Ms Tormey's significant physical injuries?

Rule: If the relationship between parties belongs to established categories of DOC, the

defendant directly owes the plaintiff a DOC In contrast, if the relationship does not fall into

established categories, the "neighbors test" is applied based on Donoghue v Stevenson (1932) Moreover, Wyong Shire Council v Shirt (1980) is applied to identify whether the defendant breached the DOC Four factors in the Civil Liability Act (2002), namely probability of harm,

likely seriousness of harm, cost of taking precaution and social utility, must be considered to determine the SOC

Application: Firstly, the relationship between Tom and Ben (the defendant) and Ms Tormey

(the plaintiff) is not a recognized DOC category, so the "neighbor test" is necessary1 Playing with the trolley in public places is potentially harmful to others Besides, Ms Tormey is a customer in the supermarket at that time so she is most likely to be bumped by Tom and Ben's trolley Thus, Tom and Ben owed Ms Tormey a duty of care

Secondly, four factors are examined to identify whether the plaintiff met the SOC2 In this case, the probability of harm is high because many people are in the supermarket and the aisle

is relatively narrow Furthermore, being trucked by the trolley in the back can suffer physical injuries, so the seriousness of harm is medium The cost of precaution is low because Tom and Ben can control it carefully and look out for the surroundings easily Social utility is not discussed here From the above analysis, there is no doubt that the defendant breached DOC to the plaintiff.3

Lastly, Tom and Ben caused Ms Tormey to suffer a reasonably foreseeable injury

Conclusion: Three requirements are satisfied, which indicate that Tom and Ben committed Tort of

Negligence Therefore, Ms Tormey can successfully sue Tom and Ben under negligence.

1 Donoghue v Stevenson [1932] AC 562

2 Civil Liability Act [2002] SECT 5B

3 Wyong Shire Council v Shirt [1980] HCA 12

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Case 2: Mathew v John Issue: Can Mathew successfully sue John under the Tort of Negligence because John's bag of

fruit caused Mathew a broken arm?

Rule: Occupiers to guests - Australian Safeway Stores Pty Ltd v Zaluzna (1987), Civil

Liability Act (2002) and Wyong Shire Council v Shirt (1980).

Application: Firstly, the case showed the relationship between Mathew (the plaintiff) and

John (the defendant) was identified as an "Occupier-Guest." 4This means occupiers have a duty to take reasonable care to protect their guests from harm caused by unexpected danger

As a result, John owed Mathew a DOC

Secondly, four major factors of SOC must be considered to determine whether John breached

a DOC5 The probability of harm is low because, as an ordinary person, Mathew actually could be aware of the big bag of fruit which dropped in the middle of the aisle Moreover, the seriousness of harm is high because the head can be hit to the ground causing significant damage to the nerves The precautionary cost is medium because John was in an emergency to help his customers, so that his carelessness is inevitable The final factor is social utility, which is irrelevant because the conduct was not beneficial to society As a result, John breached a DOC to Mathew6

Thirdly, because the defendant's conduct was reasonably foreseeable to cause harm to the plaintiff, the Causation requirement is satisfied

Defense: John can argue that even though Mathew fell to the floor after tripping over his big

bag and breaking his arm, this is an emergency and John had no intention to drop the bag on the floor Moreover, Mathew could have avoided falling if he had paid attention to the floor

As a result, Mathew contributed negligence to his injury by following Ingram v Britten 7

Conclusion: From the above analysis, Mathew can successfully sue John under negligence to

receive compensation for his injuries If John used the argument in defense, he could claim that Mathew contributed negligence to his own injuries to minimize his responsibilities

4 Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7

7 Ingram v Britten [1994] QSC 144

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Case 3: Mathew v Coles

a Vicarious Liability

Issue: Whether Coles was vicariously liable when his employee (John) caused Mathew to

suffer a broken arm?

Rule: Century Insurance v Northern Ireland Road Transport Board (1942) - The employer is

vicariously liable for the conduct of its employee within the “scope of employment.”

Application: At the time of the accident, John was a staff of the store and dropped his bag

while rushing into Ms Tormey to help her His bag caused Mathew to suffer a broken arm John performed an authorized task because he was in working time In addition, John’s

conduct brought benefits to Coles’s supermarket Therefore, two factors are satisfied so that John’s conduct was contained in the “scope of employment”.8

Conclusion: Coles can be sued under vicarious liability for Mathew’s injuries This will bring

more advantages for Mathew than suing the employee in compensation

b Tort of negligence

Issue: Whether Mathew can successfully sue Coles under negligence because John's bag of

fruits caused Mathew a broken arm?

Application: Firstly, the relationship between Mathew (the plaintiff) and John (the defendant)

was "Occupier-Guest."9 This means that occupiers are responsible for exercising reasonable care to safeguard their guests against injury induced by unanticipated hazards As a result, John owed Mathew a DOC

Secondly, four major factors of SOC must be considered to determine whether John breached

a DOC10 The probability of harm is low and the seriousness of harm is high, which is proven

in the case between Ms Tormey v Tom and Ben The cost of taking precautions is high because the incident happened unexpectedly and Coles could not anticipate and control it The social utility is not concerned As a result, Coles did not breach his DOC to Mathew11

8 Century Insurance v Northern Ireland Road Transport Board [1942] AC 509

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Thirdly, the Causation requirement is satisfied since the defendant's action was reasonably foreseeable to cause harm to the plaintiff

Defense: According to Australian Safeway Stores Pty Ltd v Zaluzna 12, Mathew had to be liable for the accident because of his carelessness He would not have been damaged if he had paid more attention to his surroundings Moreover, the occupier does not always have to be liable for the accidents of their visitors

Conclusion: Mathew cannot successfully sue Coles for his broken arm under negligence.

Case 4: Ms Tormey v Coles Issue: Whether Ms Tormey can successfully sue Coles under the Tort of Negligence because

Ms Tormey had a broken arm in Coles's supermarket?

Application: Firstly, the case identified Ms Tormey (the plaintiff) and Coles (the defendant)

as an "Occupier-Guest" relationship13 This means occupiers have a duty to take reasonable care to protect their guests from harm caused by unexpected danger Therefore, Coles owned

Ms Tormey a DOC

Secondly, four major factors of SOC must be considered to determine whether Coles breached

a DOC14 The probability of harm is high and the likely seriousness of harm is medium, as proven in the case of Ms Tormey v Tom and Ben Furthermore, the cost of precaution is low because the supermarket could put warning signs to tell people to avoid over-frolic Social utility is not discussed here From the above analysis, there is no doubt that Coles breached DOC to the Ms Tormey 15

Finally, Coles caused Ms Tormey to suffer a reasonably foreseeable injury

Conclusion: Three conditions are met, indicating that Coles committed Tort of Negligence.

Hence, Ms Tormey can legitimately sue Coles for negligence

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I SCENARIO 2

Case 1: Loan v Minh

a Forming a contract

Issue: Whether there is a binding contract between Loan and Minh for parachuting?

Rule: Smith v Hughes (1871) and Chappell & Co Ltd v Nestle Co Ltd (1960).

Application: Before going parachuting, Loan signed the waiver with a clear commitment to

confirm that she was completely aware of the risks involved with parachutes Therefore, she accepted Minh’s offer to be fully liable for her parachuting An official agreement had been established when an offer was accepted16 implied that they intend to established a legal relationship However, there is no consideration in this case so just two out of three elements

of forming a contract are satisfied

Conclusion: There is no enforceable contract between Loan and Minh.

b Vicarious Liability

Issue: Whether Loan can sue Minh successfully under vicarious liability because his

employee’s carelessness caused her broken leg while going parachuting?

Rule: Century Insurance v Northern Island Road Transport Board (1942).

Application: When the incident happened, Tung was a highly experienced parachute

instructor of the Society and he was training for Loan This means Tung performed an authorized task for Minh, his manager, which was beneficial for the Society Therefore, two factors are satisfied so that Tung’s conduct was contained in the “scope of employment.”17

Conclusion: Loan can successfully sue Minh under vicarious liability for her damages.

Case 2: Loan v Trinh

Issue: Whether Loan can successfully sue Trinh for bruised arm because Trinh struck Loan by

his vehicle?

Rule: Drivers to road users - Imbree v McNeilly (2008), Civil Liability Act (2002) and Wyong

Shire Council v Shirt (1980).

16 Smith v Hughes [1871] LR 6 QB 597

17 Century Insurance v Northern Ireland Road Transport Board [1942] AC 509

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Application: Firstly, Trinh (the defendant) owed Loan (the plaintiff) a DOC, as there is a

recognized relationship between the driver and road user that means drivers have liabilities to keep the road users safe18

Secondly, the identification of breaching the DOC of Trinh is based on four key factors19 Although Trinh was driving in the lane at a speed limit, the probability of harm is medium as

he was texting with his friends at the same time The severity of the injury is modest because Trinh was aware of Loan sliding off the sidewalk and into the traffic lane so that he could fully brake at a safe distance to avoid the high level of injury The cost of precaution is low as Trinh could entirely focus on his driving by stopping texting with his friends to avoid colliding with Loan, but he did not There is no social utility issue in this situation As a result of the driver failing to act reasonably as a reasonable driver in the circumstances (failing to meet SOC), Trinh breached DOC and owed Loan.20

Thirdly, because the defendant's conduct was reasonably foreseeable to cause harm to the plaintiff, the Causation requirement is satisfied

Defense: Trinh may argue that even though Loan was struck by Trinh's vehicle when she

suddenly fell into his lane and suffered a bruised arm, Loan might have avoided falling if she had not consumed beers previously As a result, Loan contributed negligence to her damage by

following Ingram v Britten.21

Conclusion: Loan can successfully sue Trinh for her bruised arm to gain compensation and

liability If Trinh used the argument in defense, he could claim that Loan contributed negligence to her injuries to minimize his responsibilities

Case 3: Loan v Tung Issue: Whether Loan can successfully sue Tung for his carelessness in forgetting to attach one

of the clips and cause Loan injuries?

Rule: Donoghue v Stevenson (1932), Civil Liability Act (2002) and Wyong Shire Council v

Shirt (1980).

18 Imbree v McNeilly [2008] HCA 40

21 Ingram v Britten [1994] QSC 144

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Application: Firstly, the relationship between Tung (the defendant) and Loan (the plaintiff) is

not a recognized DOC category so the "neighbor test" is necessary22 Carelessness in ensuring safety is potentially harmful to customers Besides, Loan is a customer in the Jump Society at that time, so Tung's conduct directly and closely impacts her

Secondly, four factors are examined to identify whether the plaintiff met the SOC23 In this case, one of the clips is not installed properly so the probability of harm is high Moreover, the seriousness of harm is high because being floated in the air with one of the clips unattached can suffer severe injuries and cause death The cost of precaution is low due to Tung being able to attach and recheck it carefully Social utility is not discussed here From the above analysis, there is no doubt that the defendant breached DOC to the plaintiff 24

Lastly, Tung caused Loan to suffer a reasonably foreseeable injury

Conclusion: Three requirements are satisfied, which indicate that Tung committed Tort of

Negligence Therefore, Loan can successfully sue Tung under negligence

Case 4: Huy v Loan Issue: Whether Huy can successfully sue Loan because her parachute cords caused his serious

face and eye injuries?

Shirt (1980).

Application: Firstly, the relationship between Huy (the plaintiff) and Loan (the defendant) is

not a recognized DOC category, so the “neighbor test” is necessary25 Her parachute opening when landing near the ground is potentially harmful to Huy Besides, Huy was also a parachute trainee at that time so the conduct of Loan directly and closely impacted him because he was standing on the ground and could collide with Loan anytime

Secondly, four factors are examined to identify whether the plaintiff met the SOC26 The probability of harm is medium because the people standing on the ground can recognize and avoid the danger, but it is difficult to determine the direction of the parachute landing Moreover,

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anyone in this circumstance could suffer damage such as severe face and eye injuries Therefore, the seriousness of harm is high This is an unpredictable accident because her first jump failed due to her trainer’s carelessness in preparation Hence, the cost of precaution is high Social utility is not discussed here From these characteristics, Loan met the SOC and did not breach DOC27

Lastly, the serious face and eye injuries of Huy were reasonably foreseeable when Loan landed the parachute unprofessionally

Conclusion: Based on the above analysis, Huy cannot successfully sue Loan under the Tort of

negligence when Loan collided and caused him serious face and eye injuries

Case 5: Huy v Tung Issue: Whether Huy can successfully sue Tung because his carelessness in forgetting to attach

one of the clips for Loan caused Huy to suffer serious face and eye injuries?

Shirt (1980).

Application: Firstly, the relationship between Tung (the defendant) and Huy (the plaintiff) is

not a recognized DOC category, so the “neighbor test” is necessary28 Tung’s carelessness in forgetting to attach one of the clips for Loan is potentially harmful when landing to others, specifically in this case is Huy Also, Huy was a parachute trainee so the conduct of Tung directly and closely impacted him because he was standing on the ground at that time

Secondly, four factors are examined to identify whether the plaintiff met the SOC29 The probability of harm is medium and the seriousness of harm is high, as proven in the case of Huy v Loan None of the accidents would happen if Tung had rechecked the clips carefully Therefore, the cost of precaution is low Social utility is not discussed here From these characteristics, Tung failed to meet SOC and breached the DOC30

Lastly, the serious face and eye injuries of Huy were reasonably foreseeable when Tung forgot

to attach one of the clips

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