(TIỂU LUẬN) because the relationship between harry and manny is not fall in the scope of established categories of duty of care, the reasonable foreseeability test

ASSESSMENTTASK2 ( TEAM P APER) Course Code: LAW2447 (Commercial Law) Team Number: 144 Lecturer’s Name: NGUYEN TAN SON Team Members’ Name & ID: Ngo Ngoc Dang - s3847347 Pham Le Phuoc Dai - s3769044 Vo Ngoc Yen Nhi pg - s3740818 TABLE OF CONTENTS SCENARIO 1: 2.1 MANNY V HARRY 2.2 MANNY V WALSTORE 2.3 MANNY V MINNIE AND MICKIE 2.4 MANNY V RAY SCENARIO 2: 3.1 BILLY LOCAL V JANET WHIZ 3.2 BILLY LOCAL V JULY .8 3.3 DR DENNIS V BILLY LOCAL AND JULY SCENARIO 3: 10 4.1 ALGERNON V BASIL 10 4.2 ABEL MOVERS V CAIN CONSTRUCTION CO LTD (CCC) 11 pg 2 SCENARIO 1: 2.1 MANNY V HARRY Manny was pulled down by Harry and suffered injuries The main legal issue is whether Manny can sue Harry under the Tort of Negligence (ToN) To discuss the case, the following legal issues must be considered: [1] Whether Harry owe Manny a Duty of Care (DoC)? [2] Whether Harry’s action meet the required Standard of Care (SoC)? [3] Is there any actual harm caused by Harry’s action? And [4] Are there any possible defences? [1] Because the relationship between Harry and Manny is not fall in the scope of established categories of Duty of Care, the Reasonable Foreseeability Test (Neighbor Test) is applied Harry specifically grabbed Manny by the elbow, and make Manny fell down, means that the plaintiff is closely and directly affected by Harry’s conduct Moreover, pulling someone down is a potentially harmful in a normal situation, not to mentioned in a crowded place where everyone was rushing Therefore, the reasonable foreseeability test is satisfied, and according to Donoghue v Stevenson1,Harry owe Manny a DoC [2] The required SoC is what a reasonable person would have done in the same situation If Harry met the required SoC, there will be no breach of DoC, and vice versa The required SoC could be high or low, considering the main factors:  Probability of harm: When the incident occurred, the was a crowd of about 150 people and everyone was on a rush In such a situation, people are less likely to look around carefully, and when someone fell, there is a high chance that they might get stepped on and hurt Furthermore, an actual person in a normal place would still get hurt when suddenly being pulled down by others Therefore, according to Bolton v Stone 2, the SoC in this case is high  The likely seriousness of harm: In a normal context, a strong healthy person when being pulled down might not suffered fatal injuries, depending on the position of the victim when falling However, in the case, being pulled down in a crowded is almost certainly mean that you will get stepped on, regardless of the position you fell And when you get stepped on dangerous spots, which is very likely, the damages are fatal Therefore, according to Paris v Stepney Borough Council3, the likely seriousness of harm is high  The cost of taking precaution: It is clearly in this case that there is no expensive cost for Harry to not pulling Manny Giving up a chance to get a cheap laptop is not an expensive and difficult measure, even when considering that Harry recently lost a job Therefore, According to Latimer v AEC4, the cost of taking precaution is low, lead to the higher required SOC  Social Ultility: There is no controversy in this legal issue There is no evidence that anyone other than Harry and his friend, Sally, is benefitted when Harry pull down Manny to get the bargain In another word, Harry’s conduct was for his own sake, and there was no social ultility Hence, According to Watt v Hertfordshire County Council5, the SoC is normal Donoghue v Stevenson [1932] AC 562 Bolton v Stone (1951) Paris v Stoney Borough Council (1951) Latimer v AEC (1953) Watt v Hertfordshire County Council pg  After carefully weighing and balancing the factors in totality, Harry’s conduct didn’t meet the required SOC, and he breached the duty of care [3] Two important issues must be proven to see if Manny suffered actual harm related to Harry The harm Manny suffered is the injury  Causation: The ‘but for’ test will be applied, Particularly, if Harry didn’t grab Manny by the elbow, Manny wouldn’t fall down, and wouldn’t be stepped on by Mickie and Minnie Hence, the injuries will disappear In another word, according to Yates v Jones6 the ‘but for’ test is satisfied, and the causation is established  Remoteness: Even though Harry didn’t directly step on Manny, causing the specific type of injury, damages in this case, the harm was caused right after Harry pull Manny down Hence, according to Rowe v McCartney7, Manny’s injuries are not too remote from Harry’s negligence  important issues are proven, and Harry is responsible for Manny’s injuries In conclusion, Manny can successfully sue Harry under the Tort of Negligence, then ask for the remedies for the damages 2.2 MANNY V WALSTORE The main legal issue is whether Manny can sue the Walstore under the tort of negligence, for not providing necessary action to protect him from the injuries Similar to the first case, we need to consider sub issues [1] It is easy to recognize that Walstore was the occupier who sale computer and create the sale event, and Manny was one of the guests who trying to shop in it According to Australian Safeway Store Pty Ltd v Zaluzna (1987)8, the relationship between occupiers and guests establishes a DoC Thus, Walstore owe Manny a DoC [2] The factors are also considered:  Probability of harm: It is cleared that a sale event will have many people There are possibilities that accident will occur in such a crowded place However, the possibilities are not considered very high, because not every sale event witness the same accident Only security guards, Bob and Ray, are not enough to deal with the harm if there are any, and one even is only a college student This increased the chances slightly Therefore, it is reasonable to say that the possibility of harm here is slightly high, or a normal to high standard of care  The likely seriousness of harm: In a crowded place, people could step on each other, causing serious harm They might fight each other very hard to win bargains Therefore, the seriousness of potential harm is slightly high, and the SoC is more or less high10  The cost of taking precaution: To decide if Walstore could avoided the incident by cheap or expensive methods, we have to look carefully in the background and evidence To avoid potential accidents, Walstore could have establish more security guards to protect the customers Yates v Jones (1990) Rowe v McCartney (1976) Australian Safeway Store Pty Ltd v Zaluzna (1987) 162 CLR 479 Bolton v Stone (1951) (cited above in 10 Paris v Stoney Borough Council (1951) pg to organize the line It takes some consideration to decide if these methods are expensive or not It is noticed that Walstore failed to keep the crowd organized, because when Harry and Sally come to the store, there were no line It is also noticed that there were only security guards, which are clearly not enough to organize the crowd It might be reasonable if the store is trying to cut cost on labor, however, according to the ‘Grand Bailout Act of 2020’, the store has been provided with $1 million to cut costs without cutting jobs Hence, using more guards to organize the crowd is not an expensive and difficult method Therefore, Walstore’s negligence is more likely a breach of DOC11  The social ultility: As discussed above, the store didn’t provide enough security guards to organize the crowd, and it is not helpful to the society as a whole It might be reasonable if the store cut down labor because of economic downturn, but they were supported with money and encouraged to not cutting down the cost Hence, the standard of care is high12  Although, the breach is not very clearly, it is still reasonable to claim that Walstore has breached the duty of care [3] The harm is the injuries of Manny  Causation: ‘But-for’ test is applied However, there is not enough evidence to say that if Walstore establish more security guards, Manny wouldn’t have fell down Manny might not fell down because being pulled down by Harry, but he could still have fell for some other reasons and suffer the same injuries There are no guarantees that Manny would be safe when Walstore set more guards If only Walstore changed their promotion strategies, applying sale to all the computers so that no one push or trying to compete for the bargain, Manny would be safe But it is not feasible for Manny to argue under the scope of that Hence, the causation test is not satisfied, and the defendant’s conduct did not cause the plaintiff to suffer harm13 Then, it is not necessary to consider further In conclusion, Manny could sue Walstore for not establishing enough security guards to protect him, but it is not likely that Manny could demand for any remedies 2.3 MANNY V MINNIE AND MICKIE The main legal issue is whether Manny could successfully sue Mickie and Minnie under the tort of negligence for directly run over him and cause his injuries Similar to above cases, there are smaller legal issues [1] There is no established category of DOC, so the ‘neighbor test’ is applied It is cleared that step on someone is more or less cause harm to others, and Manny is directly being ran over by Mickie and Minnie Hence, Mickie and Minnie owe Manny a duty of care [2] factors are considered: 11 Latimer v AEC (1953) 12 Watt v Hertfordshire County Council 13 Yates v Jones (1990) pg  Probability of harm: At the time the incident occurred, when everyone rushing, it is very likely that Mickie and Minnie would negligently step on Manny when he fell down Thus, the standard of care is higher  The likely seriousness of harm: Stepping on someone clearly is dangerous In the context of the defendant is rushing, it is likely that they will step on the dangerous body parts of the defendant, causing serious harms Even when they are not rushing, it would still leave some considerable damages Hence, the standard of care is high  The cost of taking precaution: To take the precaution, a reasonable person is required to look down on the floor continuously But in the context of the incident, when the defendant is trying to rush for the bargain, and the crowd are pushing each other, a reasonable person wouldn’t have always notice around Hence, the cost of taking precaution here is high, and the require SOC is low  Social Ultility: the defendant is not helping other people beside themselves when stepping on the plaintiff They even yell happily when achieving the cheap computer Hence, there is no social ultility, and the SOC is normal  Mickie and Minnie have breached the duty of care [3]  Causation: ‘But-for’ test is applied Without the defendant’s stepping on the plaintiff’s body, the damages wouldn’t have been so severed, or wouldn’t suffer such damages Therefore, the causation is satisfied However, more evidence needed to decide which kind of injury among bruises, broken nose, and broken neck is from Mickie and Minnie, and which one is from falling down by being pulled by Harry It is suspected that bruises and broken nose are from the defendant  Remoteness: It is clear that the damages are directly cause by the defendant No further type of harm is considered  There are actual harms The defendant committed the tort of negligence However, Mickie and Minnie could try and argue for contributory negligence the defence to reduce the liability To argue under the scope of this defence, the plaintiff suddenly fell down to the ground is a negligent action Because Manny fell on the floor suddenly, even though that he is not responsible for the fall, that the defendant ran over him and cause the injuries Hence, the contributory negligence defence is satisfied In conclusion, Manny could successfully sue Mickie and Minnie under the Tort of negligence, but Mickie and Minnie won’t have to be responsible for all Manny’s injuries 2.4 MANNY V RAY It is suspected that the broken neck of Manny is the result of Ray pulling him out from the crowd The main legal issue is whether Manny can successfully sue Ray under the tort of negligence for the neck injury Similar to the above cases, small legal issues are examined [1] Because security guards are not law enforemence officers, and there are no established categories of DOC, the neighbor test is then applied Ray directly grabbed Manny’s shoulders and pulled him, and that action is potentially causing harm to other Hence, Ray owes Manny a duty of care pg [2] factors are considered:  Probability of harm: a reasonable person when being grabbed by a shoulder and pulled are not likely to suffer harm In the context of a crowded place, and the victim is not aware of being pulled by shoulder, it is still not considered a high probability of harm However, expert knowledge about medical needed to have a right decision Hence, it is considered that the probability of harm is normal, and so are the SOC  The likely seriousness of harm: A reasonable person when being pulled by shoulder are not likely to suffer severe injuries Even when pulling a person lying on the floor in a crowded place, it is still not likely to break the neck of a healthy person Hence, the required SOC is low  The cost of taking precaution: The cost of taking precaution is determined to be very hard In a regular context, a reasonable person would have grab anywhere to save Manny However, in the actual situation, Ray has to fight through the crowd to save the plaintiff, and he just barely able to grab Manny in the shoulders to save him It is believed that the situation at that time was chaos, so it is hard for Ray to differently to save Manny Thus, the required SOC is very low  The social ultility: It is recognized that Ray has a good motive in performing the conduct to save Manny However, it did not benefit a society as a whole, since Manny is just a regular person Therefore, there is no social ultility and the SOC is normal  Ray have done what a reasonable person would in the same situation and met the required SOC Therefore, there are no breach of DOC Hence, no further legal issues should be considered In conclusion, Manny couldn’t successfully sue Ray under the tort of negligence There are more possible legal issues between Ray/Walstore with Harry, Mickie and Manny, but there were no specific harms Hence, it is not relevant to discuss these issues SCENARIO 2: 3.1 BILLY LOCAL V JANET WHIZ The issue is whether Whiz owned Local a D.O.C and breach the tort of negligence while the smoke caused by the event was blown into Local’s house made him upset Firstly, we examined the relationship between Whiz and Local based on the established categories of D.O.C, the result is they are not in the relationship of D.O.C So Neighbour test is applied  The conduct of Whiz is potentially harmful to everyone if they get hit or nearby Because the fireworks need power to fire so it contains an amount of explosive to fire, so it must be separated from the viewers safely14  Mr Local was directly hit by the firework while he stood there and screamed on Ms Whiz’s ear about the smoke affecting his house 14 Regulation 155 of the Dangerous Goods (Explosives) Regulations 2011 pg After applying the Neighbour Test, all two conditions are satisfied in this situation15 , we temporarily assume that Ms Whiz owned Mr Local a D.O.C Secondly, to determine whether Ms Whiz is breaching the tort of negligence, yet We will determine the four factors of S.O.C  The probability of harm As we had mentioned above, to fire the fireworks, the space must be safe enough to fire Here, the Mall placed the ground which radius is meters far from the viewers We could conclude that the SOC is low on this situation  The likely seriousness of harm Analysing the case, there are two states that we could base on are warning labels on the firework bag and the injuries Mr Local and July have to suffer It is not easy to get harm, but once it does, it can cause quite severe consequences on the injured person As I mentioned, on the warning stamp it says that there will be serious consequences if shot directly by fireworks So, the S.O.C is high, unfortunately, Mrs Whiz did not read until it hit Mr Local  The cost of taking precaution According to the case, Mrs Whiz had warning board construction that people should stay meters away from the fireplace In addition, when Mr Local complained about the smoke, she also bought powerful fans to help Mr Local solve problems Yet, Mr Local did not follow the warning and stood beside Mrs Whiz while she fired the fireworks and this caused by the wind, even Mrs Whiz tried to help Mr Local This means Mrs Whiz did not breach the S.O.C  Social Utility This event is really useful not only for the Mall but also for guests and their family Significantly, this activity is for community interest This event is really beneficial for the community, breach the S.O.C is no in this situation In conclusion, after analyzing the D.O.C and tort of negligence of Billy Local v Janet Whiz, we conclude that Mrs Whiz owned Mr, Local the D.O.C, but did not breach the tort of negligence 3.2 BILLY LOCAL V JULY The issue is whether Billy Local owned July a D.O.C due to broken arm that she had to suffered Because Mr Local bumped into July, causing her to break her arm Here we will consider, so whether Mr Local is responsible for taking care of Ms July based on measure D.O.C Based on the DOC's relationship listing, we can see that they are not in the predefined relationship, so we will apply the Neighbour test  The conduct of getting hit Ms July is not causing by Mr Local, but he accidentally hit Ms July because the firework was directly knock him  To clarify, we examine the situation here, Ms July was completely unaffected by the fireworks but she was indirectly injured by Mr Local's hit while he was shot down This proves, the conduct causing the accident chain is not from Mr Local but here it is from Ms Whiz and he is also directly affected by it 15 Donoghue v Stevenson [1932] UKHL 100 pg In the result, Mr Local does not satisfy two conditions in the Neighbour test rule We could conclude that Mr Local does not owe Ms July any of D.O.C 3.3 DR DENNIS V BILLY LOCAL AND JULY The issue is whether Dr Dennis owned Billy Local and July a D.O.C and breached the tort of negligence due to his ignorance taking aid of both of them while Mr Local suffered head injury and Ms July suffered arm broken Firstly, this relationship between doctor and patients16 This relationship is inside the categories of D.O.C which show that Dr Dennis owned Billy Local and July a D.O.C Secondly, we examine the tort of negligence of Dr Dennis by factors of meeting the S.O.C  The probability of harm The probability is low, usually a doctor would give first aid if there are not enough tools to take full medical aid to reduce the seriousness of injuries for the patients But, Dr Dennis did not give any of aid for two of them, he just only asked to call the ambulance which was 15km away from the Clinic  The likely seriousness of harm Based on the diagnosis of the doctor in Horsham Hospital, if both of them take the first aid, it won't be serious as they had arrived at the hospital It displays that the likely seriousness of harm is high  The cost of taking precaution The cost to take the first aid is fully paid by the patients or people involved There is no cost to take precautions here for a doctor  Social Utility If Dr Dennis gives medical service, he not only safe the patients but also help the community health Unfortunately, he did not any of medical care for the patients, instead asked Ms Whiz to call the ambulance Finally, as we have stated and analysed as above, Dr Dennis owes the DOC and breach the DOC We will proceed to the last step of harm caused by breach, to see if Dr Dennis is really breaching tort of negligence  Causation We are applying for the “But for” test At first the accident happened by fireworks shooting at Mr Local But Mrs Whiz handled it quickly by sending the two to the clinic which is Dr Dennis's workplace But the consequences will not lead to serious consequences if they are given first aid within first hours Unfortunately, Dr Dennis refused to be treated, causing them to spend more time waiting for the ambulance to arrive and being taken to Horsham Hospital, leading to an infection of Ms July's wound and a brain injury in Mr Local  Remoteness It is obvious and inevitable that the patient is injured and needs the help of a doctor We can easily see that when a patient is in critical condition they always need even first aid In summary, by conducting a review of rules are D.O.C, breach of D.O.C and harm caused by breach We can see that Dr Dennis owned Mr Local and Mrs July the D.O.C and completely breach tort of negligence Dr Dennis must take full responsibility for his irresponsible actions 16 Rogers v Whitaker (1992) 175 CLR 479 pg SCENARIO 3: 4.1 ALGERNON V BASIL The conflict is only concerned about the selling of a 2018 Saab Turbo The legal issue is whether there is a valid contract between Algernon and Basil We will consider three main factors: agreement, consideration and intention In order to determine whether there was an agreement formed between Algernon and Basil, we will need to examine offer and acceptance  Algernon posted an advertisement in the local newspaper, which is an invitation of treat and it is not an offer17 Basically, Algernon only provided details of the Saab Turbo and his contacts for required buyers to make an offer Therefore, Algernon did not provide an offer and the invitation of treat is not a valid offer  In term of acceptance, Algernon (Director of Cain Construction Co Ltd) posted a sale advertisement on a local newspaper at an offered price of 20,000 USD on June 5th with note the offer will be valid till 4PM of June 9th Basil sent a post-mail to Algernon on the morning of 6th June stated he would like to buy that 2018 Saab Turbo Later on Algernon received the new from Basil’s relative, he sent a post-mail to Basil that the offer has a deadline Unfortunately, due to the postal strike, neither of the letters can be sent out On June 8th, Basil sent an email to confirm the offer, however, Algernon could not receive the email because of his broken computer As a result, Algernon’s advertisement in the ‘Cars For Sale’ is an invitation of treat which cannot be considered as a valid offer Also, because of the postal strikes and Algernon’s broken computer, both Algernon and Basil were not able to receive offers from each other That leads to a legal act 18 states that offers must be communicated and made aware of to be a valid offer, which in this case did not satisfy the rules of offer to be a legal offer Overall, the first element – agreement is not satisfied Due to the non-existed of the agreement, there will not be necessary to examine other two elements In conclusion, Algernon does not violate any contractual right because of the non-existed offer So Algernon has no obligation to Basil and Basil cannot sue Algernon for breaching the contract 4.2 ABEL MOVERS V CAIN CONSTRUCTION CO LTD (CCC) This conflict main objective is the quotation for moving a large quantity of equipment owned by CCC, and a possible element of changing the price of the quotation The legal issue is whether there was an agreement formed between Abel Movers and Cain Construction Co Ltd, we will take into account three main factors: agreement, consideration and intention 17 Partridge v Crittenden [1968] WLR 1204 18 R v Clarke [1927] 40 CLR 227 pg 10 According to Smith v Hughes [1871] LR QB 597 act, there are two elements, offer and acceptance, to determine whether there was an agreement existed between parties  Abel Movers made a first offer at 15,000 USD on May 30th with days of weekends to complete the work, and second offer is 12,000 USD on May 31st with days during the week to be completed On June 1st, the offeree (CCC) read two quotations from Abel Movers So, there was a written offer made by the offeror (Abel Movers)  In term of acceptance, after reading those quotations, CCC immediately communicated with Abel Movers by postal to complete the acceptance However, the conflict occurred when CCC stated in the form they will pay in installments instead of following Abel Movers’ order form Hence, the acceptance of CCC is not valid because it violates the criteria of clarify and other completion must be made before the acceptance Therefore, the first factor – agreement is unsatisfied and unnecessary to examine the factors of Consideration and Intention In conclusion, there is no legal offer for Abel Movers and Cain Construction Co Ltd to have any obligation with each other pg 11 ... defences? [1] Because the relationship between Harry and Manny is not fall in the scope of established categories of Duty of Care, the Reasonable Foreseeability Test (Neighbor Test) is applied Harry. .. V HARRY Manny was pulled down by Harry and suffered injuries The main legal issue is whether Manny can sue Harry under the Tort of Negligence (ToN) To discuss the case, the following legal issues... Mickie and Minnie Hence, the injuries will disappear In another word, according to Yates v Jones6 the ‘but for’ test is satisfied, and the causation is established  Remoteness: Even though Harry