Assessment task 2 team paper team 81 group 1

Assessment task 2 will primarily assess your IRAC skills (i.e. the ability to identify the legal issue, the ability to identify legal rules, and the ability to apply the legal rules to solve legal problems). Examinable topics include tort of negligence, vicarious liability, contract formation, and negating a contract.

ASSESSMENT 2 (TEAM PAPER) COVER SHEET

Table of content:

1 Tort of Negligence (TON) 11

We assume that the third element of tort of negligence is satisfied in all our tort of negligence cases The defendant caused the plaintiff to suffer injury which was reasonably foreseeable

Scenario 1

1 Tort of negligence (TON)

Case 1: Ned v Sara Quick

2 Breach of DOC

In deciding whether a reasonable person breach DOC, under the CivilLiability Act, the court must consider:

(a) the probability of harm (POH):

The higher the POH, the greater the required standard of care (SOC),

Bolton v Stone.2

(b)the likely seriousness of harm (LSOH):

The higher the required SOC can stem from the higher LSOH, Paris v

Stepney Borough Council.3

(c)the cost of taking precautions (COP):

1 Donoghue v Stevenson [1932] AC 562.

2 Bolton v Stone [1951] AC 850.

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

If the defendant could have avoided causing harm by cheap and easymeasures, failing to take these measures is likely a breach of DOC And

vice versa, Latimer v AEC.4

(d) the social utility of the activity that creates the risk ofharm:

The SOC is low if the activity is useful to society as a whole, Watt v

Hertfordshire County Council.5

Application:

Ned and Quick did not fall within the established DOC categoriesrelationship Therefore, the "Neighbour test" must be applied.6 WhenQuick speeded up, she could not handle the scooter, potentially harmingany customers in the store Accordingly, Ned was one of the shoppers, soQuick's conduct closely and directly affected him Consequently, the test issatisfied, Quick owned Ned the DOC

4 Latimer v AEC Ltd [1953] AC 643.

5 Watt v Hertfordshire County Council [1954]1 WLR 835.

6 Donoghue v Stevenson, above n 1.

In deciding whether a reasonable person would have taken precautions, thecivil liability legislation obliges the court to examine four factors: POH,

LSOH, COP, and social utility According to Bolton v Stone7, the POH ishigh Because there were many people at the store, the accident thatimpacted customers was likely to happen when Quick lost control From

Paris v Stepney Borough Council8, the LSOH is medium since someonewas hit by a scooter, they could suffer scratches, bone fractures, or spinal

cord injuries, but not lead to death Stated in Latimer v AEC9, the COP ischeap since the defendant could speed down, keep this speed constantlyand observe around carefully There was no social utility as Quick's actionjust benefited the store.10 Consequently, the SOC is high, Quick did not dowhat a reasonable person would have done Therefore, the Quick breachedDOC to Ned

7 Bolton v Stone, above n 2.

8 Paris v Stepney Borough Council, above n 3.

9 Latimer v AEC, above n 4.

10 Watt v Hertfordshire County Council, above n 5.

Ned can successfully sue Quick under TON for her extensive speed,causing Ned injury Quick should ride with low speed and notice aroundcarefully to better manage the risks

Case 2: Sara Quick v Dr Duy

A defendant owes a DOC to the plaintiff if their relationship falls withinthe established categories of DOC A doctor owes a DOC to their patient,

Rogers v Whitaker.11

Breach of DOC:

We will apply the rules in this requirement similarly in case 1

Application:

Firstly, Dr.Duy was a doctor; thus, he owes a DOC to all his patients,

including Quick This was established in Rogers v Whitaker.12

chance of sympathetic ophthalmia is extremely rare (1:14000), and not allcases cause blindness in the affected eye The LSOH would be medium-high14 because the operation may make Quick experience other problems,including the surgery complications Besides, it was easy to takeprecautions.15 Dr Duy could warn or provide Quick with adequateinformation as to the risk involved So, Quick could be aware of that risk

11 Rogers v Whitaker [1992] 175 CLR 479.

12 Rogers v Whitaker, above n6.

13 Bolton v Stone, above n 2.

14 Paris v Stepney Borough Council, above n 3

15 Latimer v AEC, above n 4

Besides, she could take steps to have it performed by the most experiencedsurgeon with a record and a reputation in this field, resulting in a betteroutcome Although there was an existence of social utility16 that Dr Duywas trying to recover Quick's sight, the SOC is high Duy failed to meetSOC Therefore, Duy breached DOC to Ned

Conclusion:

Quick can sue Duy under TON for lacking warning inherent risks of theoperation, leading to her blindness Dr.Duy should warn her of thepossible risks to better manage risks

Case 3: Sara Quick v Jack Croll

Issue:

Can Quick sue Jack Croll under TON for lacking warning, creating herblindness of right-eye? Legal questions are whether Jack Croll owedQuick a DOC and whether Croll breached the DOC Besides, thesubordinate issue is whether Croll can raise any defence to reduce liability

16 Watt v Hertfordshire County Council, n 5

plaintiff’s injury, Ingram v Britten18

Application:

Firstly, Croll was a boss of Mega Box Store, Croll therefore owes DOC toall his employees, including Quick This was stated in Business Law19

17 Nickolas James, ‘Legal Consequences’, Business Law 4E, (Wiley, 4th ed 2014) 220.

18 Ingram v Britten [1994] ATR 81.

19 James, n7

Secondly, Quick was passing the spray-painting section so she could runinto this section when losing control The paints were likely to contact anddamage her eyes So, the POH is high20 LSOH is high because the labelclaims any contact between eyes and the paints could cause permanentdamage21 Indeed, Quick sustained right eye’s blindness The COP wassimple since Croll just needed to warn Quick to keep the low speed orkeep away from the spray paint area22 Social utility was not an issuehere23 The employer's priority is to make its employees safe.Consequently, Croll failed to meet SOC, leading a breach of DOC toQuick.

Defence:

Based on Ingram v Britten 24 , Croll may consider making a contributory

negligence defence to relieve the liability partially The fact that Quick hadalready known the scooter brake is difficult to use before Although shejust acted according to the call of duty, she was negligent in riding at an

excessive speed, resulting in her injury So, Quick has to bear part of theresponsibility for her damage.

Conclusion:

Quick can sue Croll under TON for his negligence, causing Quick'sdamage However, Croll can partially reduce liability and compensationfor Quick by contributory negligence defence Croll can warn Quick aboutthe speed carefully and Quick should obey it to manage the risks

Case 4: Sara Quick v Oakleigh Hospital

Issue:

Can Quick sue Oakleigh Hospital under TON, causing her a more severeinjury? Whether Oakleigh Hospital owed Quick and whether it breachedits DOC to Quick

Rule:

Owe a DOC:

Occupiers owe a DOC to people who come onto their premises,

Australian Safeway Stores Pty Ltd v Zaluzna25

Secondly, POH is low and LSOH is medium-high, (explained in case 2).Regarding precautions27, it is difficult for the hospital to not hire Dr.Duybecause at that time, the hospital was in urgent need of doctors, althoughDuy's claim about his university was suspicious Moreover, it would taketime and money to recruit others No social utility here since the hospitaldidn't verify Duy claim, cannot benefit society28 Since the COP was

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

26 Rogers v Whitaker, n 6.

27 Latimer v AEC, n 4.

28 Watt v Hertfordshire County Council, n 5.

insignificant compared to the injury Quick sustained, the hospital failed tomeet SOC Therefore, it breached the DOC to Quick

Conclusion:

Quick can sue Oakleigh hospital for TON for hiring an unqualified doctor,generating Quick's damage Oakleigh hospital should hire qualifieddoctors to provide the optimal care possible

Case 5: Ned v Jack Croll

Issue:

Can Ned sue Jack Croll for violating TON because his employee causedhis injury? Whether Jack Croll owed Ned a DOC and whether Crollbreached that DOC

Rule:

Owe a DOC:

Employers owe a DOC to their employees, Business Law 4E29

29 James, n 7.

30 Latimer v AEC, n 4.

Ned can sue Croll under TON that caused Ned's damage To better managethe risks, Croll should allow customers to know the scooter riding, restrictthem to stand close to the performance area and warn Quick about thespeed

1 Tort must be committed.

2 It must be committed by an employee, not an independentcontractor

3 Tort committed in the “scope of employment”, meaning theemployee performs an authorized task for the benefit of the

employer, Century Insurance v Northern Ireland Road Transport

Board32

Application:

Firstly, Dr Duy violated the TON to Quick, stated in case 2 Secondly,Duy was employed as a doctor by Oakleigh Hospital Thirdly, Dr Duy didthis surgery within the scope of employment since he was performing anauthorized task, which was saving Quick's right eye, bringing the profitand reputation for the hospital Consequently, Oakleigh Hospital isvicariously liable for the action of its employee

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

Quick can sue Oakleigh hospital for vicarious liability by its employee'sconduct, generating her damage The solution should be done similarly tocase 4 to avoid legal problems

Case 7: Jack Croll v Ned

Firstly, Quick's conduct was established as committed TON towards Ned,

as stated in case 1 Secondly, Croll controlled Quick and told her what andhow to do it, so Quick is Croll's employee Thirdly, Quick was

undertaking an authorized task because Croll required her to conduct amarketing strategy (performing scooters) Unquestionably, Quick's actioncan boost the profit for the Croll business Consequently, Croll isvicariously liable for the action of its employee.

Conclusion:

Ned can sue Croll under vicarious liability for Quick's conduct Therefore,

it is recommended for Ned to sue Croll rather than suing his employee forbetter compensation

Scenario 2:

1 Tort of Negligence (TON)

Case 1: Tung v Chu

Issue:

Can Tung successfully sue Chu under TON due to his negligence causingTung’s soft-tissue injuries? Whether Chu owed Tung a DOC and whetherChu breached that DOC

If the activity is helpful for society as a whole, the SOC is lower (Watt v

Hertfordshire County Council)38

34 Civil Liability Act 2020

First, the relationship between Tung and Chu was excluded in established

DOC categories, hence, “neighbour test” was applied (Donoghue v

Stevenson)39 Chu’s conduct potentially harmed others since Chu leapingout the lighting grid might make it fall down and hit people standingbelow Next, Tung was standing under that lighting grid so Chu's conductclosely and directly affected Tung Conclusively, Chu owed Tung a DOC

Second, for this circumstance, it’s uncommon for the lighting grid to dropsince cables and hooks used to hang it were sturdy, only when a strongswaying motion might have affected it falling down Hence, POH is low

leading to smaller required SOC level (Bolton v Stone)40 The LSOH issignificant because a rather large lighting grid (4.5 x 5 m) that falls fromexcess of 9 feet, probably causes serious body injuries, or even lethal COP

is inexpensive because Chu only needed to concentrate on his authorizedtasks in scope of employment Thus, Chu could avoid causing harm by

39 Donoghue v Stevenson n 1.

40 Bolton v Stone, n 2.

cheap and easy measures leading to likely breaching DOC, followed

Latimer v AEC 41 Chu’s carelessness did not bring any benefit for society

as whole (Watt v Hertfordshire County Council) 42 Chu failed to meet therequired SOC that he breached DOC toward Tung

Conclusion:

Tung can sue Chu under TON because Chu was negligent to make thelighting grid fall down and cause Tung's substantial injuries As areasonable person in Chu' position, he should only implement authorizedservice tasks of a bar staff

Case 2: Tung v Blackrock Café

Issue:

Can Tung successfully sue Blackrock Cafe under TON for his injuriesbecause of his employee’s carelessness? Whether Blackrock owed TungDOC and whether Blackrock breached that DOC

41 Latimer v AEC, n 4

42 Watt v Hertfordshire County Council, n 5.

To successfully sue the defendant in TON, it is considered as

1 Owe a DOC

The relationship of both parties was Occupier-guests, included established

DOC classification that defendant owes DOC to plaintiff ( Australia

Safeway Stores Pty Ltd v Zaluzna)43

will damage its guest, Tung This was established in Australian Safeway

Stores Pty Ltd v Zaluzna 44

43 Australia Safeway Stores Pty Ltd v Zaluzna, n 9.

44 Ibid.

Secondly, in this particular case, the POH was low45, the LSOH was high46and social utility was not an issue here47 (explained in case 1) Theprecautions were inexpensive and simple to perform48 because BlackrockCafe just needed to change the old hooks to using eye-hooks and a chain tominimize any possibility of the grid’s fall down even impacted by strongmotions Blackrock Cafe didn’t do what a reasonable person wouldimplement to protect its customer So, it failed to meet SOC and breachedDOC to Tung.

Conclusion:

Due to the lack of using safety optimal tools when hanging lighting grids,Tung can successfully sue Blackrock Cafe under TON for significantinjuries that he sustained As a reasonable person, Blackrock should useoptimal safety hooks to minimize risks

45 Bolton v Stone, n 2.

46 Paris v Stepney Borough Council, n 3.

47 Watt v Hertfordshire County Council, n 5

48 Latimer v AEC, n 4

Case 3: Binh v Chu

Issue:

Can Binh sue Chu for TON violation, causing his chest injury after thecollision with Tung, who was affected to fall down by Chu’s negligence?Whether Chu owed Binh a DOC and whether Chu breached that DOC

Rule:

1 Owe a DOC

The “neighbour test” will be applied when the relationship between two

parties was excluded established DOC categories (Donoghue v

Stevenson)49

2 Breach a DOC

We will apply the same rule cited in Case 1

49 Bolton v Stone, n 2.

Firstly, the relationship of two parties did not fall within established DOCcategories, accordingly, the “neighbour test” was determined50 Chu'scarelessness was potentially harmful to others who were standing underthe lighting grids, including Binh Additionally, Chu’s conduct closelyaffected Binh because Binh was standing near Tung to talk, when Tungfell down, he obviously collided with Binh and caused Binh's injuries.Subsequently, Chu owed Binh the DOC

Secondly, the POH was medium- high51 since the bar was crowded, theremight have been a group of people standing under the lighting grid, theninjured due to Chu’s negligence Referring to the high LSOH52 being hit

by the lighting grid could make people suffer significant injuries TheCOP53 is cheap as Chu just needs to focus on his work scope to servecustomers Ultimately, Tung’s conduct is evidently not helpful to society.Consequently, Chu breached a DOC toward Binh

50 Donoghue v Stevenson, n 1.

51 Bolton v Stone, n 2

52 Paris v Stepney Borough Council, n 3

53 Latimer v AEC, n 4