(TIỂU LUẬN) ASSESSMENT 2 TEAM PAPER the collins multidisciplinary clinic v (july v doctor denning)

Vicarious Liability Case 7: The Great Lake Shopping Mall v Billy Local v Janet Whiz 13 Case 8: The Great Lake Shopping Mall v July v Janet Whiz 14 Case 9: The Collins Multidisciplinary

Subject Code: LAW2447

Subject Name: Comercial Law

Student name - ID: Pham Quoc Khai - s3836559

Tran Bao Ngoc – s3836222

Tran Hai Bang – s3752939

Group: 89

Campus: RMIT Viet Nam - SGS

Lecturer's Name: Mr Son Nguyen Tan

Word count: 4030

TABLE OF CONTENT

Scenario 1

I Tort of Negligence

Case 1: Manny v Harry 3

Case 2: Manny v (Ray and Bob) 4

Case 3: Manny v Ray 5

Case 4: Manny v Walstore 6

Case 5: Manny v (Mickey and Minnie) 6

II Vicarious Liability Case 6: Manny v Walstore 7

Scenario 2 I Tort of Negligence Case 1: Billy Local v Janet Whiz 8

Case 2: Billy Local v Janet Whiz 9

Case 3: July v Billy Local 10

Case 4: July v Janet Whiz 11

Case 5: Billy Local v Doctor Denning 12

Case 6: July v Doctor Denning 13

II Vicarious Liability Case 7: The Great Lake Shopping Mall v (Billy Local v Janet Whiz) 13

Case 8: The Great Lake Shopping Mall v (July v Janet Whiz) 14

Case 9: The Collins Multidisciplinary Clinic v (Local v Doctor Denning) 14

Case 10: The Collins Multidisciplinary Clinic v (July v Doctor Denning) 15

Scenario 3 Case 1: Abel Movers v Cain Construction Co Ltd (CCC) 15

Case 2: Algernon v Basil 16

Scenario 1:

I Tort of Negligence.

Case 1: Manny v Harry

In this situation, Manny is the plaintiff and Harry is the defendant The main legal issue here is whether Manny can sue Harry under Tort of Negligence (TOC) because of grabbing Manny by the elbow and making Manny fell on the ground

First of all, to determine the relationship between the plaintiff and defendant, the

“neighbor test” must be considered here based on Donoghue v Stevenson [1932] 1 Harry pulled Manny down on the floor, that action caused potential harm for the plaintiff Additionally, Harry was in the crowd and Manny was also there Therefore, the “neighbor test” is satisfied So, Harry owed a Duty of Care (DOC) to Manny

To decide whether Harry breached a DOC that he owed Manny By applying the rules in

(SOC): the probability of harm in Bolton v Stone [1951] 3, the likely seriousness of harm in Paris

social utility in Watt v Hertfordshire County Council [1964] 6 Firstly, the probability of harm in this situation is medium to high because in the crowd, when someone is grabbed suddenly, they tend to loose the balance and fall on the ground Secondly, the likely seriousness of harm is also high Once the accident is happened, a person, who fell on the ground can be trampled by the crowd and get serious injuries like broken nose, bruises However, the cost of taking precaution

is easy by not pulling Manny Finally, the action of defendant is useless for the society because Harry’s action can cause disorder for surrounding people Hence, Harry breached the DOC that

1 Donoghue v Steven [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 (Q1d) s 9(1); Civil Liability Act 1936 (SA) s 32(1); Civil Liability Act 2002 (Tas) s 11; Civil 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 [1953] AC 643.

6 Watt v Hertfordshire County Council [1964] 1 WLR 835.

he owed Manny Moreover, the defendant caused the plaintiff to suffer serious damage was reasonably foreseeable

· Defence

Based on Alexander v Manley [2004] 7, contributory negligence defence is made here, Manny already knows Walstore has no plans or warning signs to ensure the order of the crowd,

so Manny must recognize the danger and protect himself by staying away the crowd However,

he still joined to the crowd even though he knew the crowd can cause potential harm to him

Overall, all of requirements are convinced So Manny can sue Harry under Tort of Negligence However, Harry can reduce his liability due to the contributory negligence defence

Case 2: Manny v (Bob and Ray).

In this case, Manny is the plaintiff, Bob and Ray are the defendants The significant issue here is if Manny can sue Bob and Ray under Tort of Negligence because of the careless of taking precaution in the store

The first demand is if Bob and Ray owed Manny a DOC It is clear that the relationship

between the plaintiff and the defendants is “Occupier and Guest” based on Australian Safeway

manage the order of the store and Manny was a guest in Walstore Hence, Bob and Ray had a responsibility for accident that happened in the store Therefore, the Bob and Ray owed Manny a DOC

The second demand is whether Bob and Ray breached DOC that they owed Manny All

four factors of SOC are also considered as the case above Firstly, based on Bolton v Stone [1951] (cited above) the probability of harm is medium to high To interpret, the store had a

discount program Then, the store would be full of people Therefore, the scuffle is unavoidable

Secondly, according to Paris v Stepney Borough Council [1951] (cited above), the likely seriousness of harm is also high as the same interpretation in case 1 Besides, based on Latimer v AEC [1953] (cited above), it is easy to avoid the accident by setting up a sign to ask customer

making a line to get into the store Finally, there is no social useful activity in this case because

7 Alexander v Manley [2004] WASCA 140.

8 Australian Safeways Stores Pty Ltd v Zaluzna [1987] 162 CLR 479 488.

the careless of defendants did not contribute any advantages to society as stated in Watt v Hertfordshire County Council [1964] (cited above) Furthermore, the defendant caused the

plaintiff to suffer serious damage was reasonably foreseeable Therefore, Bob and Ray breach the DOC that they owed Manny

· Defence

The contributory negligence defence is the same as Manny v Harry.

In conclusion, Manny can successfully sue Bob and Ray under Tort of Negligence However, the defendants can reduce the damage rewards due to contributory negligence

Case 3: Manny v Ray

In this situation, Manny is the plaintiff, Ray is the defendant The significant issue here is whether Manny can sue Ray under TON because Manny was intentionally injured by Ray The first deputy legal issue is whether Ray owed a DOC to Manny Like Manny v Bob and Ray, the relationship between Manny and Ray is also “Occupiers and Guests” (cited above) Hence, Ray owed Manny a DOC

The second subordinate legal issue is whether Ray breached the DOC that he owed Manny Firstly, as stated in Bolton v Stone [1951] (cited above), the probability of harm is low

since Ray just wanted to grab Manny out of the crowd Based on Paris v Stepney Borough Council [1951] (cited above), the likely seriousness of harm is just medium, because in a

situation, when people pull someone with supportive purpose, they tend to try to keep safe for victim As stated in Latimer v AEC [1953] (cited above), there is a useful social activity in this case The reason is the defendant’s conduct is to save the plaintiff’s life Additionally, based on

Watt v Hertfordshire County Council [1964] (cited above), it will be difficult to take a

precaution, because if Ray had not done that, Manny would have been killed by the crowd

Overall, Ray met the SOC Consequently, Manny cannot sue Ray

Case 4: Manny v Walstore

In this case, the plaintiff is Manny and the defendant is Walstore The crucial issue here is whether Manny can sue Walstore under TON because of the careless of Walstore in managing the order of the store

The first legal issue is whether Walstore owed Manny a DOC As the case of Manny v Bob and Ray, it is obvious that the relationship between Walstore and Manny is “Occupiers and Guests” Cited above) Therefore, Walstore owed Manny a DOC

The second legal issue is whether Walstore breached the DOC that they owed Manny All

of four elements in SOC in this case are considered as the same with the case of Manny v Bob and Ray The third requirement is satisfied as the defendant caused the plaintiff to suffer serious

damage was reasonably foreseeable Hence, Walstore breached a DOC that they owed Manny

· Defence

In contrast, the contributory negligence defence of Walstore is similar to the case of Manny v Bob and Ray

Overall, Manny can sue Walstore under TOC But Walstore can reduce the damage rewards due to contributory negligence defence

Case 5: Manny v (Mickey and Minnie)

In this case the plaintiff is Manny, the defendants are Mickey and Minnie The main legal issue here is whether Manny can sue Mickey and Minnie under TOC due to running over on Manny

The first legal issue is whether Mickey and Minnie owed Manny a DOC The “neighbor test” is considered here based on Donoghue v Stevenson [1932] (cited above) as the explanation

is similar to the case of Manny V Harry Therefore, Mickey and Minnie owed Manny a DOC

The second legal issue is whether Mickey and Minnie breached a DOC Based on Bolton

v Stone [1951] (cited above), the probability of harm is medium to high as Mickey and Minnie

run in the crowd quickly to get the cheap laptop, therefore, they only pay attention to where to

store cheap laptops, so they do not pay attention to their surroundings According to Paris v Stepney Borough Council [1951] (cited above), the likely seriousness of harm is high as the

interpretation is similar to the case of Manny v Harry As stated in Watt v Hertfordshire County Council [1964] (cited above), it is easy to take precaution because instead of running quickly, they should slow down and pay close attention to their surroundings Based on Latimer v AEC [1953] (cited above), the social utility is the same with the case of Manny v Harry Additionally,

the third requirement is satisfied as the defendant caused the plaintiff to suffer serious damage was reasonably foreseeable Mickey and Mannie breached the DOC that they owed Manny

· Defence

On the other hand, the contributory negligence defence is also made It is similar to the case of Manny v Harry

Overall, Manny can successfully sue Mickey and Minnie under TOC But the defendants can reduce the liability because of making a contributory negligence defence strongly

II Vicarious liability

Case 6: Manny v Walstore.

The main legal issue here is whether Manny can sue Walstore under vicarious liability because of the careless conduct of Walstore employees

To consider Manny can sue Walstore under vicarious liability or not, the plaintiff has to demonstrate that the employee committed tort of negligence for the plaintiff inside the extent of employee’s work That implies the representative perform approved assignments to upgrade the advantages for the business In this case, Bob and Ray were the security of Walstore, and they9 had responsibility to keep order in the store, but their mission has failed and they committed TOC Therefore, Walstore is also responsible for Manny’s accident

In conclusion, Manny can also successfully sue Walstore under vicarious liability

9Century Insurance v Northern Ireland Road Transport Board [1942] AC 509

Scenario 2:

I Tort of negligence:

Case 1: BILLY LOCAL (plaintiff) v JANET WHIZ (defendant)

The main legal issue is whether Local can sue Whiz under TON for causing Local the head injury in the firework show

· Duty of Care:

The first issue is whether Whiz owed Local a DOC By applying neighbor test based on Lord Atkin in Donoghue v Stevenson [1932] (cited above) it was reasonably foreseeable that Whiz’s,

conduct could cause harm to Local as the firework was hit by Whiz’s foot and fired at awkward angles, then potentially slammed into other people including Local Indeed, Local was closely and directly affected by Whiz’s conduct as Local was standing beside Whiz at that time Hence, the neighbor test is satisfied and Whiz owed Local a DOC

· Breach of Duty of Care:

The second issue is whether Whiz breached her DOC First of all, probability of harm cited

in Bolton v Stone [1951] is one of the four factors that needs to be considered to determine

whether Whiz breached her DOC For this case, the probability of harm is high as Whiz’s foot caused the firework to fire at different and uncontrollable angles which obviously could hit and injure anyone nearby even though they stay 3 meters away as following the warning sign Secondly, according to Paris v Stepney Borough Council [1951] (cited above), the likely seriousness of harm is high because the fireworks are made from sturdy and solid materials which seriously damage the body and cause severe injury, even death if they hit Besides, when considering the cost of taking precautions based on Latimer v AEC [1953] (cited above), it was cheap and easy for Whiz as she could be careful to ask Local to leave outside the firework zone

as following the sign’s instruction before lighting the firework and talk about the smoke problem after the show Consequently, Whiz could avoid the screaming of Local’s complaint and was not

in a hurry which caused her foot hitting the firework that led to Local’s injury Finally, the legal

rules of social utility stated in Watt v Hertfordshire County Council [1954] (cited above) is

considered In this case, there was no social utility as Whiz’s conduct was not useful to the society Overall, after considering the four elements of SOC above, Whiz did not do what a reasonable person would have done in the same situation Thus, Whiz breached her DOC

In this case, Whiz caused Local to suffer injury which was reasonably foreseeable

· Defences:

Although Whiz committed a tort of negligence, Whiz can escape from liability completely by

establishing a full defence related to voluntary assumption of risk (Insurance Commissioner v

3 meters away from the fireworks While entering the firework zone and standing beside Whiz where Whiz was about to lighting the firework, Local was fully aware of the risk and voluntarily assumed that risk In addition, Local’s action made Whiz in haste that cause her carelessly hitting the firework Thus, Whiz can be relieved of all liability

· Conclusion:

To conclude, Billy Local can successfully sue Whiz under TON However, Whiz can be completely relieved her liability by establishing a full defence

Case 2: BILLY LOCAL (plaintiff) v JANET WHIZ (defendant)

The main legal issue is whether Local can sue Whiz under TON for causing smoke from fireworks into Local’s house

· Duty of Care:

The first subordinate issue is whether Whiz owed Local a DOC By conducting neighbor test cited in Lord Atkin in Donoghue v Stevenson [1932] (cited above), the fireworks’ smoke could

be potentially harmful to other people nearby Besides, Local was living in a house which is four blocks far away from the Mall and the smoke was also directly blown towards Local’s house, which shows that Local was closely and directly affected by Whiz’s conduct Hence, the neighbor test is satisfied and Whiz owed Local a DOC

· Breach of Duty of Care:

10 Insurance Commissioner v Joyce [1948] HCA 17

By identifying whether Whiz breached her DOC, four factors of SOC are considered Firstly, smoke from fireworks could make Local suffer some breathing issues, and emotional distress which was mentioned in the scenario that Local was really upset However, Local’s house was quite far away, about 4 blocks from the Mall that was approximately one mile away Thus, the probability of harm (Bolton v Stone [1951] -cited above) was medium Secondly, the likely seriousness of harm (Paris v Stepney Borough Council [1951] -cited above) was high because heavy smoke blown directly to Local’s house which could definitely leads Local who was an old, retired teacher to serious breathing problems and brain damage as lacking oxygen along with psychological injury However, Whiz made his efforts to prevent the smoke blowing to Local’s house with series of powerful fans but they were not enough Thus, the precautionary cost

(Latimer v AEC [1953]-cited above) was considered not easy and expensive to have more

powerful fans to reduce the smoke Lastly, there was no social benefit of Whiz’s conduct in this

case (Watt v Hertfordshire County Council [1954]-cited above) According to the four factors

above, Whiz breached her DOC

Besides, Whiz caused Local to suffer injury which was reasonably foreseeable

· Conclusion:

In conclusion, Local can successfully sue Whiz under TON for causing smoke to Local’s house

Case 3: JULY (plaintiff) v BILLY LOCAL (defendant)

The main legal issue is whether July can sue Local under TON for July’s arm injury

· Duty of Care:

The first subordinate issue is whether Local owed July a DOC Since there is no relationship between July and Local recognized in established categories of DOC, neighbor test (Donoghue v Stevenson [1932]-cited above) must be done As Local was knocked out by the firework and then probably hit other guests attending the show including July, which potentially made July being harmed Besides, July was standing nearby Local when the accident happened so July was closely and directly affected by Local’s conduct Thus, Local owed July a DOC

· Breach of Duty of Care: