(TIỂU LUẬN) the relationship between croll and quick is recognized by the law as employer–employee

The defendant is considered to have breached the DOC if he failed to meet the required Standard of Care SOC, which is determined using the four factors : the probability of harm, the lik

Student Name & ID

Pham Nhat Duong Nguyen Quynh Anh

Vo Thi Quynh Nhu

S3883259 S3877740 S3891702

Word count – excluding

tables, headlines &

references list

4001

Table of Contents

Scenario 1 3

Case 1: Quick v Croll 3

Case 2: Quick v Dr Duy 4

Case 3: Quick v Hospital 5

Case 4: Ned v Quick 5

Case 5: Ned v Croll - Vicarious Liability 6

Case 6: Ned v Croll – Tort of Negligence 6

Scenario 2 7

Case 1: Tung v Chu 7

Case 2: Tung v The Black Rock Café – Tort of Negligence 7

Case 3: Tung v The Black Rock Café – Vicarious Liability 8

Case 4: Binh v Chu 8

Case 5: Binh v The Black Rock Café – Tort of Negligence 8

Case 6: Binh v The Black Rock Café – Vicarious Liability 9

Case 7: Binh v Hospotal 9

Case 8&9: Tung v The Breakers and Binh v The Breakers 10

Case 10: Binh v Tung 10

Scenario 3a 11

Case 1: Gordon v Outback Burgers 11

Case 2: Sam v Outback Burgers 12

Scenario 3b 13

Case 1: Carl v Opera 13

Case 2: Carl v Direct 14

Bibliography 16

Scenario 1

Case 1: Quick v Croll

The issue is whether Croll committed a Tort of Negligence against Quick when he asked her to ride the

scooters inside the store The subordinate is whether Quick was part at fault for increasing the scooter’s speed to impress the customer

The relationship between Croll and Quick is recognized by the law as Employer–Employee 1

Specifically, Quick worked at Croll’s Mega Box Store which sells non-motorized bikes and scooters as a part-time employee Therefore, it can be concluded that Croll owed Quick a Duty of Care (DOC) The Neighbor Test is not needed in this case

The defendant is considered to have breached the DOC if he failed to meet the required Standard of Care (SOC), which is determined using the four factors : the probability of harm, the likely seriousness of harm, the cost of taking precaution and social utility.2

The Probability of Harm in this case is medium, since Quick was riding in an area with product

shelves.3

Furthermore, she mentioned herself that scooters are harder to control compared to bicycles

since their brakes do not work as well as bikes The Likely Seriousness of Harm is medium to high since she was running near the shelfs with spray paint, proven by the injuries that the plaintiff herself received when she hit it However, the 4 Cost of Taking Precaution is rather easy to establish The store owner 5

should have rules to not allow bicycles and scooters to be used inside the store No Social Utility was found in this case Croll has failed to meet the requirement of SOC and therefore has breached his DOC 6

to the plaintiff

The injuries that the plaintiff suffered were reasonably foreseen In conclusion, Quick can successfully sue Croll under Tort of Negligence for breaching the DOC

Defence : Croll might argue for Contributory Negligence Defence against Quick as it was her idea of having employees ride bikes around the store in the first place In addition to that, she also increased the 7

speed around the spray paint aisle to impress a group of customers, which led to her loss of control and crash into the aisle Quick had shown carelessness and her negligence contributed to the accident

1 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18.

2 Civil (Wrongs) Act 2002 (ACT) pt 4.2 s 43

3Bolton v Stone [1951] AC 850

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

5 Latimer v AEC Ltd [1953] AC 643.

6 Watt v Hertfordshire County Council (1954) 1 WLR 835

7Ingram v Britten [1994] QSC 144

Therefore, the defence can be accepted and the liability is divided to both parties in reasonable

proportion

Case 2: Quick v Dr Duy

The issue is whether Dr Duy (defendant) owed Quick (plaintiff) a DOC and breached it by not informing her about the risks of the operation which resulted in her blindness of both eyes The subsidiary issue is whether Quick was contributorily negligent for not asking about the possible risks

The relationship between the defendant and the plaintiff falls within the established categories of DOC as

Doctors–Patients 8 Applied to this case, Duy was a doctor at Oakley hospital and Quick was his patient, therefore, he owed Quick a DOC and the Neighbor Test is unnecessary

The rule to determine whether the plaintiff has breached his DOC is similar to case 1 The Probability of Harm in this case is extremely low, since there is only a 1:14000 chance of the risk occurring 9

Furthermore, the Likely Seriousness of Harm is high since it can result in blindness in both eyes 10

Despite the severity of the harm, the Cost of Taking Precaution is easy and inexpensive to establish.11 A

similar case, Rosenberg v Percival, accepted that had the patient been informed fully about the risks, she

would have not undergone the surgery Applying to this case, if Quick was warned about the seriousness12

of the relevant risk, she would have had a choice and might have rejected the operation in the first place

No Social Utility of the defendant’s conduct was found in this case Therefore, it can be concluded that 13

Dr Duy has failed to meet the required SOC and breached his DOC to Quick

Finally, the plaintiff’s injuries were reasonably foreseen, hence, Quick can successfully sue Duy under TON

Defence : Dr Duy can try to reduce his liability by asking for a Contributory Negligence against Quick,

as she didn’t specifically ask about whether her left eye can be damaged However, she had expressed 14

considerable concern of the possible complications before the surgery, which required the doctor to give a truthful answer in relation to the therapeutic privilege Hence, the defence is denied 15

8Roger v Whitaker (1992) 175 CLR 479

9Bolton v Stone, above n 3

10 Rosenberg v Percival [2001] HCA 18; 205 CLR 434; 75 ALJR 734 (5 April 2001) [77]

11 Latimer v AEC Ltd, above n 5

12 Rosenberg v Percival, above n 10

13 Watt v Hertfordshire County Council, above n 6.

14Ingram v Britten, above n 7

15 Rosenberg v Percival, above n 10.

Case 3: Quick v Hospital

The legal issue is whether Quick can sue the Oakleigh hospital under Vicarious Liability for the harm

caused to her by Dr Duy

The requirement to prove Oakleigh is vicariously liable is that the harmful act was performed under the scope of employment, which means that the employer authorizes his employee to perform a beneficial action for him The requirement was met when Duy performed a harmful act under the employment of 16

Oakleigh hospital Furthermore, the hospital acknowledged suspicious details in Duy’s job application concerning his medical degree but proceeded to hire him due to a shortage of doctors, thus committing a vicarious liability No defence can be made in this situation

In conclusion, Quick can successfully sue Oakleigh hospital under the vicarious liability

Case 4: Ned v Quick

The legal issue is whether Quick conducted a Tort of Negligence against Ned when she hit him with the

scooter, causing him to suffer a broken leg and $35,000 of operation fee

The Neighbor Test is necessary since the relationship between the plaintiff and the defendant is not

recognized by the law The test requires you to prove that the defendant’s conduct was reasonably 17

foreseen to be harmful and the plaintiff is closely and directly affected by that The first requirement has been satisfied The latter is also met since there was a chance that Quick would hit Ned when riding the scooter near him The neighbor test is now satisfied and Quick owed Ned a DOC

The rules to determine the defendant’s breach of DOC is similar to case 1 The Probability of Harm is medium The plaintiff acknowledged that the scooter’s brake doesn’t work as well as that of the bike, hence making it easier to lose control and hit someone That chance was increased when she speeded up near Ned to impress his group The Likely Seriousness of Harm is medium to high since she was

speeding while losing control, proven by the plaintiff’s broken leg The Cost of Taking Precaution is inexpensive and easy to establish as Quick can choose not to ride the scooter inside the store No Social Utility was found in the defendant’s action Therefore, Quick had breached the DOC 18

As mentioned above, the harm was reasonably foreseen, hence, Ned can sue Quick successfully under TON for breaching the DOC she owed to him with no possible defence

Case 5: Ned v Croll - Vicarious Liability

The legal issue is whether Ned can sue Croll under Vicarious Liability for the harm caused by Quick

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

17 Nikolas James, Business Law, (Wiley Publishing, 4 edn, 2014) th

18 Above n 3, 4, 5, 6

Firstly, Quick was an employee at Croll’s store The requirement to prove Croll’s liability here is the same with that of case 3, which was met when Quick committed the tort to Ned within the scope of

employment of Croll To be specific, the store owner asked Quick to ride the scooter inside the store to 19

attract customer, which was beneficial to his store

In conclusion, Ned can successfully sue Croll under vicarious liability

Case 6: Ned v Croll – Tort of Negligence

The legal issue is whether Croll owed a DOC to Ned and breached that duty when he failed to assure the customer’s safety in his store

Ned and Croll’s relationship in this case falls within the established categories of DOC as

Occupier-Guest since the accident happened in a store where Croll was the owner According to Australian

Safeway Stores Pty Ltd v Zaluzna, it is the occupier’s responsibility to avoid foreseeable injuries to those

who come onto his premises Therefore, Croll owed Ned a DOC 20

The rules and application of the rules to determine whether Croll has breached his DOC and failed to meet the required SOC is the same as those of case 5 (Quick v Ned) The Cost of Taking Precaution is

also simple and affordable since Croll can have rules that don’t allow people to ride bikes and scooters inside the store Hence, the DOC Croll owed to Ned was breached 21

Finally, since the injuries that the plaintiff suffered was reasonably foreseeable, it can be concluded that Ned can successfully sue Croll for breaching the DOC and committing a TON against him No further defence can be made from the defendant

Scenario 2

Case 1: Tung v Chu

The issue is whether or not Chu (defendant) had committed a Tort of Negligence against Tung (plaintiff)

when he swung from the bar lighting grid, causing physical harm to Tung

19 Above n 16

20 Australian Safeway Stores Pty Ltd v Zaluzna [1987] 162 CLR 479.

21 Above n 5

The relationship between the two parties is not established by the law, but instead through the Neighbor Test 22

Since Chu’s recklessness directly affected Tung’s well-being as occupiers in the same room, the

test is satisfied, proving Chu owed Tung a DOC

We now discuss the rules to determine the defendant’s breach of DOC The Probability of Harm is moderately high given how the cable was only supported by hooks and could not sustain the weight of a grown man The Likely Seriousness of Harm is also high any grid, made of heavy metal, falling upon

anyone could cause serious physical harm However, the Cost of Taking Precaution is easy as Chu could

have simply focused on doing his work With no apparent Social Utility to the defendant’s actions and reasonably foreseen harm, Tung can seek legal remedies for his injuries as the defendant clearly breached his DOC with no possible defence.23

Case 2: Tung v The Black Rock Café – Tort of Negligence

Tung can also sue the nightclub under the Tort of Negligence to decide whether they had breached the

DOC against him for the harm imposed by Chu

There is an established DOC between Tung and the bar as Occupier-Guest as the accident took place in

the nightclub’s premises The relevant rule is Australian Safeway Stores Pty Ltd v Zaluzna (as cited in the case Ned v Croll) which means the nightclub owed Tung a DOC.24

To determine the defendant’s breach of DOC, the first two elements are similar to the analysis in Tung v

Chu However, the Cost of Taking Precaution is medium as the nightclub probably has to hire people for

securing the lighting grid or bar training to its workers, which takes moderate resources There is no apparent Social Utility in this case As the harm was reasonably foreseen, I still find the nightclub to be 25

liable in breaching its DOC to Tung Overall, Tung can sue the nightclub under TON with a moderate success rate given the cost of taking precaution with no defence

Case 3: Tung v The Black Rock Café – Vicarious Liability

The issue is whether Tung (plaintiff) can sue the nightclub (defendant) under Vicarious Liability for his

injuries by Chu

22 Nikolas James, above n 17

23 Above n 3, 4, 5, 6

24 Australian Safeway Stores Pty Ltd v Zaluzna, above n 23.

25 Above n 5, 6

Similar to case 3 in Scenario 1, we found that the nightclub is vicariously liable as the imposed harm was done under Chu’s scope of employment As a bar of good reputation, aggressive vocational measures for26

all the nightclub staff and better securing of the lighting grid should have been taken to prevent Chu’s

incident Ryan v Ann was a case law regarding the nightclub’s accountability of their employee’s

behavior27

Applied to the case, Tung can sue the Nightclub under vicarious liability with stronger success rate than last case

Case 4: Binh v Chu

The issue is whether Binh (plaintiff) can sue Chu (defendant) under the Tort of Negligence for his

injuries

Similar to Tung v Chu and Ned v Quick, there is no established DOC; however, the Neighbour Test is

satisfied.28

Chu's act of negligence also directly affected Binh who was in close proximity to the falling lighting grid, proving Chu owed Binh a DOC

We now examine the elements of possible breach of DOC which is quite similar to Tung v Chu The only

differences were that the Probability of Harm and Likely Seriousness of Harm are both comparatively lower than case 1 since Binh was not standing directly under the grid as Tung was With reasonably 29

foreseeable harm, Binh can still seek legal remedies against Chu with no possible defence

Case 5: Binh v The Black Rock Café – Tort of Negligence

The legal issue is whether Binh (plaintiff) can sue the nightclub (defendant) under the Tort of Negligence

for his injuries

With similar legal rules to Tung v The Black Rock Cafe, the nightclub owed Binh a DOC as

Occupier-Guest 30 The two arguments of negligence: Probability of Harm and Likely Seriousness of Harm are similar to Binh v Chu 31 Next, the

Cost of Taking Precautions and Social Utility are similar to case 3 32

With reasonably foreseeable harm, Binh can seek legal remedies with no possible defence

26 Century Insurance v Northern Island Road Transport Board, above n 16

27 Ryan v Ann St Holdings P/L [2006] QCA 217

28 Above n 17

29 Above n 3, 4

30 Australian Safeway Stores Pty Ltd v Zaluzna, above n 23

31 Above n 3,4

32 Above n 5, 6

Case 6: Binh v The Black Rock Café – Vicarious Liability

Binh can also sue the nightclub for their Vicarious Liability 33 in his physical injuries

With similar rules and arguments as case 3 (Tung v The Black Rock Cafe), I find that Binh can

successfully sue the Black Rock Cafe with no possible defence

Case 7: Binh v Hospotal

The issue is whether Binh (plaintiff) can sue the hospital (defendant) under the Tort of Negligence Similar to case 2, there is an established DOC of Occupier-Guest as the accident happened on the

hospital’s premises 34

To determine the defendant’s breach of DOC, the Probability of Harm is considered medium as the floor was slippery from the rain The Likely Seriousness of Harm is medium to high as serious fall injuries

like broken bones, concussions can happen with moderate chances The Cost of Taking Precaution is

medium to high as the hospital would have to place signs or hire people for longer hours to ensure the floor is mopped at all times which is unreasonable Hence, there is Social Utility in not taking precautions

as the pathways in the hospital should be kept clear to avoid disruption for doctors and patients35

It is unlikely that Binh can successfully seek remedies for his injuries against the hospital

Defence: Similar to Quick v Croll, the hospital can make a case for themselves by arguing Binh is

Contributorily Negligent in his injuries Despite the heavy raining night, Binh still insisted on taking 36

the stairs to the garden at 6.30 which was earlier than the hospital timeframe for cleaning He should have been reasonable enough to choose a different occasion with sunny weather to visit the garden Using the relevant rules from Jackson v McDonald’s Australia, as Binh deliberately walked on the clearly wet stairs, the defence will be accepted with Bing being at least 50% contributorily negligent37

Case 8&9: Tung v The Breakers and Binh v The Breakers

The issue is whether Tung or Binh (plaintiff) can sue the Breakers (defendant) under the Tort of

Negligence.

33 Above n 16

34 Above n 23

35 Above n 3, 4, 5, 6

36 Above n 7

37 Jackson v McDonald’s Australia Ltd [2014] NSWCA 162

Since there is no established relationship by the law, the Neighbor Test fails to establish that the Breakers could have reasonably foreseen the Chu negligence as they were only doing their jobs and were busy performing on stage as usual

Case 10: Binh v Tung

The legal issue is whether Binh (plaintiff) can sue Tung (defendant) under the Tort of Negligence for his

injuries

With no established relationship by the law, the Neighbor Test 39 fails to show that Tung could have predicted the lighting grid falling which was away from his vision Ultimately, similar to two previous cases, this omits him being liable in negligence, and Binh would not be able to sue Tung under TON

38 Above n 17

39 Ibid