(TIỂU LUẬN) LAW 2447 – COMMERCIAL LAW assessment task 2 – team paper the first issue is whether peter, the plaintiff, can successfully sue evan, the defendant, for committing a tort of negligence when peter

LAW 2447 – COMMERCIAL LAW Assessment Task – Team Paper Course’s code and name: LAW 2447 – Commercial Law Class group: Thursday morning Lecturer’s name: Do Thi Huong Nhu Team number: 32 Team members: Do Khanh Huyen – s3694634 Pham Thuy Nga – s3697073 Le Hoang Phong – s3741312 Rmit University Vietnam Hanoi Campus Table of Contents Scenario 1: 1.1 Peter v Evan: 1.2 Peter v Reid: Scenario 2.1 Tom v BlackRock Café 2.2 Tom v James Scenario 4: 4.1 Trevan v Isaac 4.2 Trevan v Olivia: 10 Scenario 11 3.1 Loan v Trinh 11 3.2 Loan v Huy .12 3.3 Loan v Nha Trang Jump Society 13 3.4 Huy v Hospital .14 Scenario 1: 1.1 Peter v Evan: Legal Issues: The first issue is whether Peter, the plaintiff, can successfully sue Evan, the defendant, for committing a tort of negligence when Peter, who was sitting in the passenger’s seat of a vehicle, suffered a neck injury because such vehicle skidding into the traffic light was driven by Evan, who was driving in the state of being intoxicated by a large consumption of alcohol The second issue is whether Evan can claim a contributory negligence against Peter to lower his liability when Peter allowed himself to be driven by a drunk driver and failed to wear a seatbelt at the time of the accident Legal Rules: First, it must be proven that the defendant owes the plaintiff a duty of care (DOC) In most scenarios, it is comparatively effortless to demonstrate the existence of a DOC given that the relationship between the defendant and the plaintiff is listed among the established categories of DOC If the established categories are not satisfied, in order to justify the existence of DOC, the ‘Neighbor test’1 will be utilized to prove that the defendant’s conduct could potentially cause harm to others and the plaintiff is closely and directly affected by the defendant’s act Next, it must be determined whether the defendant breached the DOC if he or she failed to meet the required standard of care (SOC), which refers to what a reasonable person would have done in the same position2 To ascertain the required SOC and whether the defendant violated the DOC, the court will profoundly consider four elements: the probability of harm 3, the likely seriousness of harm4, the cost of taking precautions5, and the social usefulness6 Lastly, legal obligation can be divided between the two parties as the defendant can use a ‘contributory negligence’7 as a defence by providing evidence that the plaintiff was partially negligent and thus contributed to their own injuries Application: Duty of Care It is apparent that the relationship between Evan and Peter, the driver and passenger of the vehicle, falls within the established category of DOC – motorists and road users Therefore, there existed a DOC owed to Peter by Evan Breach of DOC Alcohol can influence people’s judgement, reduce concentration, decrease coordination and vision, thus, those who drive motor vehicles while being impaired by alcohol are incapable to meet the required SOC to drive within the speed limit, cautiously observe the traffic, cooperate with other road users and comply with traffic law This will produce a high probability to severe accidents Therefore, the probability of harm in this case is high The likely seriousness of harm is also high as motor vehicles accidents often lead to catastrophic consequences, including fatal injuries Other road users, most likely motorcyclists or pedestrians, could have been killed if they were close to the traffic light at the time of the accident Regarding the burden of taking precautions, Evan could have prevented the accident to occur by sitting in the passenger seat and letting Reid, who was sober, drive the vehicle Thus, the cost of taking precautions in this scenario is low Donoghue v Stevenson [1932] AC 562 Civil Law (Wrongs) Act 2002 (ACT) s 43(1); Civil Liability Act 2002 (NSW) s 5B(1); Civil Liability Act 2003 (Qld) s 9(1); Civil Liability Act 1936 (SA) s 32(1); Civil Liability Act 2002 (Tas) s 11(1); Wrongs Act 1958 (Vic) s 48(1); Civil Liability Act 2002 (WA) s 5B(1) Bolton v Stone [1951] AC 850 Paris v Stepney Borough Council [1951] AC 367 Latimer v AEC Ltd [1953] A 643 Watt v Hertfordshire County Council [1954] WLR 835 Ingram v Britten [1994] Aust Torts Reports 81-291 There is no relevant social utility involved in this context because the defendant’s conduct brought no advantage to the society Based on the examination of the four factors above, Evan has breached the DOC owed to Peter Defence Evan can make a contributory negligent defence to argue that Peter contributed to his own injury by negligently accepting to be driven by a drunk driver and unbuckling his seat belt at the time of accident Peter continued to stay in the car driven by Evan despite being aware that Evan was drunk and under fine suspension In the interests of his own safety, Peter could have exited the car, but he was considerably drunk due to large consumption of alcohol and unable to make a reliable assessment before accepting a ride home from the defendant As Peter was intoxicated at the time the accident took place and was counting on the care and skill of a person knew to be intoxicated, contributory negligence on the part of Peter will be presumed, following the Civil Liability legislation.8 Moreover, at the time of the accident, Peter failed to keep his seat belt fastened A presumption of contributory negligence on the part of Peter will be established, following the Road Traffic Act9 Conclusion: To summarise, Evan owed and breached a DOC to Peter, caused Peter to suffer a neck injury Nevertheless, the judge can apportion the liability between Peter and Evan as Peter can be held liable for contributory negligence 1.2 Peter v Reid: Legal Issues: The legal issue is whether Reid, the defendant, committed a tort of negligence to Peter, the plaintiff when Reid was warned by Peter of Evan’s state of being drunk and under suspension, however, ignored this caution, and despite being the only sober person on the vehicle, Reid did not insist on driving and quickly allowed Evan to drive, causing an accident to happen and left Peter with the neck injury Legal Rules: Civil Law (Wrongs) Act 2002 (ACT) ss 96-96; Civil Liability Act 2002 (NSW) s 50; Personal Injuries (Liabilities and Damages) Act 2003 (NT) ss 14-15; Civil Liability Act 2003 (Qld) ss 47-49; Civil Liability Act 1936 (SA) s 46-50; Civil Liability Act 2002 (Tas) s 5; Wrongs Act 1958 (Vic) s 14G: Civil Liability Act 2002 (WA) s 5L Civil Liability Act 1936 (SA) ss 49; Road Traffic Act 1961 (SA) First, the existence of a DOC must be proven If the relationship between two parties does not lie within the established categories, the ‘Neighbor test’10 will be implemented (as cited above in the case between Peter v Evan) Second, to determine whether the defendant has breached the DOC owed to the plaintiff, the ‘Reasonable person test’ and four key elements of SOC will be discussed (as cited above in the case between Peter v Evan) Application: Duty of Care As the relationship between Reid and Peter is not recognized among the established categories of DOC, the ‘Neighbor test’ is executed First, the act of ignoring Peter’s warning and letting a drunk person drive was potentially harmful to others Second, as they were riding in the same vehicle, Peter was closely and directly influenced by Reid’s behaviour Therefore, the ‘Neighbor test’ is satisfied and Reid owed Peter a DOC Breach of DOC Reid failed to meet the required SOC as Reid’s behavior cannot be seen as what a reasonable person would have done in the same situation A sober person, with regards to his own safety, would have insisted on driving instead of allowing a drunk man steer the wheel A reasonable person under the same circumstances as Reid would have taken precautions agaisnt the risk of harm11 To justify this statement, four major factors will be considered The probability and the likely seriousness of harm is high since letting a drunk person drive clearly not only can cause harm to the passengers but also other road users if an accident occurred The highest level of seriousness of harm could have been death if other road users were involved and killed in the crash The cost of taking precautions in this case is low Reid could have refused to let Evan in the car unless he sat in the passenger seat Moreover, Reid could have ignored Evan’s demand and drove off to avoid any risk of harm There is no social usefulness involved in this case Based on the above analysis, Reid breached his owed DOC to Peter Conclusion: Although it was not Reid’s fault that directly caused the accident, Reid’s conduct of negligence should be held responsible for Peter’s injury, thus, Peter can successfully sue Reid 10 Donoghue v Stevenson [1932] AC 562 11 Civil Law (Wrongs) Act 2002 (ACT) s 43(1); Civil Liability Act 2002 (NSW) s 5B(1); Civil Liability Act 2003 (Qld) s 9(1); Civil Liability Act 1936 (SA) s 32(1); Civil Liability Act 2002 (Tas) s 11(1); Wrongs Act 1958 (Vic) s 48(1); Civil Liability Act 2002 (WA) s 5B(1) Scenario 2.1 Tom v BlackRock Café Legal Issue The legal issue in this case is whether Tom, the plaintiff can successfully sue Blackrock Cafe, the defendant for committing a tort of negligence when Tom got hit by the Cafe’s lighting grid which had crashed down on Tom and resulted in significant injuries to his neck and spine Legal Rules First, it must be verified whether the defendant owes the plaintiff a DOC If the established categories does not cover the relationship of two parties, to prove the presence of DOC, the ‘Neighbor test’12 will be brought in Next, to demonstrate the required SOC, the relevant legal rules of The Council of the Shire of Wyong v Shirt will be implemented in this scenario13 Breach of DOC is proven by taking into account four key components (as cited above in the case of Peter v Evan) Moreover, the defendant can utilize a ‘contributory negligence’14 as defense by giving proof that the plaintiff was partially negligent and hence contributed to his own injuries Application: Duty of Care The relationship between Tom and Blackrock Café fits one of the established category of DOC which is Occupier and Guest Hence, Blackrock Café is proved to owe a DOC to Tom Breach of DOC Blackrock Café did not meet the desired SOC because the act of not keeping the lighting grid secured to the ceiling can potentially make it become loose and cause serious injuries to anyone in the plaintiff’s position Applying four elements of SOC, it can be seen that the probability of harm is high because considering the circumstances of the Café when the live music is meant to encourage people to be excited and jump along, the lighting grid can easily fall down and hurt people The likely seriousness of harm is also high as the lightning grid is 4.5 to meters big and if it falls, it will cause severe damage to people who stand below The plaintiff could have been unconscious if the grid hit directly to his head The cost of taking precaution is not expensive because Blackrock Café later hired a builder to settle the lighting framework to the ceiling to avoid any unfortunate possibilities This means that the burden of taking precaution is low 12 Donoghue v Stevenson [1932] AC 562 13 The Council of the Shire of Wyong v Shirt per Mason J [1980] 146 CLR 40 14 Ingram v Britten [1994] Aust Torts Reports 81-291 and the Café should have done this long before to prevent accidents The social utility is not applicable in this case Defence Tom is not held liable for any contributory negligence because at the time of the accident, he was standing still and having a conversation with Ben Conclusion Based on the above analysis, Tom can successfully sue Blackrock Cafe for having a tortious liability 2.2 Tom v James Legal Issue The legal issue is whether James, the defendant, committed a tort of negligence to Tom, the plaintiff, when James leapt onto the bar table, waved his hands around and then leapt out at the lighting grid making the grid become loose and fall down on Tom, which left Tom a damage to his neck and spine Legal Rules First, the existence of a DOC must be proven If the relationship between two parties is not established among the categories, the ‘Neighbor test’15 will be implented Second, to verify the breach of DOC, four factors of SOC will be analysed (as cited above in the case of Peter v Evan) Application Duty of Care The relationship between Tom and James is not under any established category of DOC as they are both guests of Blackrock Cafe A “Neighbor test” will be applied Tom and James are neighbors in law because they were in the same bar, thus, James’s action potentially caused harm to Tom closely and directly Consequently, James owed Tom a DOC Breach of DOC The probability of the harm in James’s conduct is high as his leaping onto the bar table and out like Tarzan at the lighting grid would potentially cause it to become loose, slip out of the ceiling hook and fall on those who are standing under the grid, leading to serious injuries and The likely seriousness of risk is high as his conduct could not only result in the loss of balance of those standing underneath but also make them pass out Cost of precautions is 15 Donoghue v Stevenson [1932] AC 562 apparently low as he could have simply controlled himself and not jumped on the table to avoid any accident Lastly, the social utility is not relevant in this case After all, James breached his DOC owed to Tom Conclusion In conclusion, James committed a tort of negligence toward Tom and can be sued by Tom as a consequence Scenario 4: 4.1 Trevan v Isaac Legal Issues: The first issue is whether there existed a legally enforceable contract between Isaac, the seller and Trevan, the buyer of the shorts The second issue is whether Trevan, the buyer, can sue Isaac, the seller, for breaching the contract when he refused to sell the shorts to Trevan after Trevan had already informed Isaac of his acceptance to purchase the shorts Legal Rules:  Rules of forming a contract: To prove the existence of a contract between the two parties, three elements must be satisfied: Agreement, Consideration and Intention to create legal relations First, a contractual agreement will be effective under these requirements: the offeror has created an offer, the offeree has accepted the offer and the offeree has communicated their acceptance to the offeror16 The offeror’s offer must be clear and complete 17 Moreover, the offer must be communicated, otherwise, it is not considered legally valid 18 Offerors are entitled to revoke their offers anytime prior to acceptance19 16 Smith v Hughes [1871] LR QB 597 17 Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd - [2006] VSC 42 18 R v Clarke [1927] 40 CLR 227 19 Dickinson v Dodds (1876) Ch D 463 The offeree’s acceptance must be clear and complete 20 The acceptance must be effectively communicated between two parties, otherwise, the agreement is not completed21 The only exception relevant to this case is the postal rule The postal rule stated that the acceptance is effective and validates the contract as soon as the letter of acceptance is sent, not when it is received22 The postal rule is only applicable to postal communications and has no relevance to instantaneous forms of communication, namely telephone calls or faxes23 Second, consideration is the contribution of each party and the agreement is not enforceable without consideration24 Past consideration is invalid25 and consideration must be sufficient for the contract to be effective26 Lastly, intention to generate legal relations is crucial to legally enforce a contract When the agreement is established within a business context, each party will be presumed to be intended to be bound27 The presumption will be refuted if the parties involved apparently did not intend their agreement to be enforceable legally28  Rules of negating a contract: A formed contract can still be unenforceable if there exists a lack of formality A legislation that demands certain contracts to be in writing and signed to be operative and enforceable Regarding contracts for the sales of goods worth more than $20, they must be evidenced in writing and signed to be legally enforceable However, this rule only applies in Western Australia and Tasmania29 Application: Agreement: The existence of an agreement between Isaac and Trevan is justified as it met all requirements Isaac has created the offer to sell the shorts by writing a letter to Trevan and Trevan has accepted this offer by writing back to Isaac a letter to purchase the shorts The acceptance of Trevan is communicated to Isaac 20 Scammell and Nephew Ltd v Ouston [1941] AC 251 21 Felthouse v Bindley [1862] 142 ER 107 22 Adams v Lindsell 106 ER 250 23 Brinkibon Ltd v Stahag Stahl Und Stahlwarenhandelsgesellschaft mbH [1983] AC 34 24 Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87 25 Roscorla v Thomas [1842] QB 234 26 Biotechnology Australia Pty Ltd v Pace [1988] 15 NSWLR 130 27 Edwards v Skyways Ltd [1964] WLR 349 28 Rose& Frank Co v JR Crompton & Brothers Ltd [1925] AC 445 29 Sales of Goods Act 1896 (Tas) s 9; Sales of Goods Act 1895 (WA) s The enforceability of the contract was unaffected by Isaac’s revoking the offer because the revocation was invalid Offerors are allowed to revoke their offers anytime before acceptance, however, Isaac phoned Trevan to withdraw the offer after the acceptance was effective and the contract was legally formed Eventhough Isaac received the acceptance letter on November 17th, applying the postal rule, the acceptance already became effective by the time it was sent on November 13th Despite Trevan calling Isaac on November 14 th to revoke the offer and called Isaac again to accept the offer on the same day, this was sent by instantaneous communication, thus, it was not in effect until it is actually received by Isaac Considerations: The considerations of this contract are the pair of shorts worn by player Robinho when he played his first game for City paid by Isaac and $1000 paid by Trevan All considerations meet the relevant rules as they are neither exchanged in the past nor insufficent in legal value Intention: Although Isaac and Trevan are both soccer fans and presumably knew each other before the contract, it was clear that their agreement was established in a business context, not a domestic context Hence, it would be presumed that the agreement had the intention to be legally enforceable No evidence in this case that suggested any lack of intention to make legal relations from either party, thus, it is impossible to rebut this presumption Lack of formality: Although the contract between Isaac and Trevan involved the sales of goods for more than $20 and was not in writing and signed, the contract is established in Melbourne, thus the addressed rule was not applicable and the contract is still legally enforceable Conclusion As three crucial requirements to form a contract are satisfied, it can be summarized an enforceable contract between Isaac and Trevan that conforms to the law existed Therefore, Trevan can sue Isaac for refusing to follow his legal obligation as required in the contract 4.2 Trevan v Olivia: Legal Issues: The first issue is whether there existed a legally enforceable contract between Olivia, who offered to sell Trevan the shoes Robinho had worn and Trevan, the buyer of the shoes Another issue is whether Trevan, the offeree, can sue Olivia, the offeror, for breaching the contract when she sold the shoes to someone else after she promised to keep the offer open until 30th November and after Trevan sent a letter to accept the offer Legal Rules: The relevant rules in this case are the same rules in the case of Trevan v Isaac (as cited above in the case of Trevan v Isaac) An additional rule relevant in this context: the offeror is given the legal right to withdraw their offer anytime before acceptance, even if they promised to keep the offer open for a specified time However, if the offeree paid a deposit, the offeror’s conduct is considered a contravention of contract30 Application: Agreement: An agreement between Olivia and Trevan existed because elements under agreement are satisfied Olivia has created and informed the offer of selling Trevan the shoes Robinho had worn in his last game for $2000 through telephone Trevan has accepted this offer by posting a letter to Olivia Trevan has communicated Olivia through post The contract was legally enforceable regardless of Olivia’s withdrawal Despite having made the promise to maintain the offer open for Trevan until November 30 th, Olivia is still entitled to pull back her offer prior to acceptance since there was no deposit made by Trevan However, Olivia failed to this prior to acceptance Although Olivia received the acceptance letter on November 18th, the acceptance was effective and the contract was legally enforceable as soon as Trevan sent the letter on November 14th, based on the postal rule Therefore, Olivia’s withdrawal of the offer was invalid Moreover, her selling the goods to someone else while her contract with Trevan had been legally formed was a breach Considerations: The considerations are a pair of shoes worn by the soccer player Robinho in his last game for RealMadrid paid by Olivia and $2000 paid by Trevan These considerations match the relevant legal rules since they are neither past nor insufficient Intention: Since Olivia is a dealer in sports memorabilia, Olivia and Trevan’s agreement was obviously formed under a business context Thus, the agreement would be presumed to be intended to be enforceable legally There existed no proof in this case showing that any party did not intend to create legal relations Therefore, it is impossible to disprove this presumption Lack of formality: The rule regarding the lack of formality could not be applied in this case Conclusion: 30 Goldsborough Mort & Co Ltd v Quinn [1910] 10 CLR 674 10 It can be concluded that there was an existence of a legally enforceable contract between Trevan and Olivia Consequently, Trevan could successfully sue Olivia for breaching the contract Scenario 3.1 Loan v Trinh Legal Issue The legal issue in this case is whether Trinh, the defendant committed a tort of negligence to Loan, the plaintiff when Trinh was texting while driving which caused her vehicle to knock into Loan and left Loan with an arm injury Legal Rules The case should clarify the DOC between the plaintiff, Loan, and the defendant, Trinh With the established categories of DOC31, if it has a relationship between the defendant and plaintiff, there will be a DOC existed (as cited above in the case between Peter v Evan) Additionally, to identify whether he or she breached a duty of care, we need to consider the required standard of care with four factors32 (as cited above in the case between Peter v Evan) Lastly, the defendant can use ‘contributory negligence’33 as defence for the evidence of the plaintiff’s partially negligent (as cite above in the case between Peter v Evan) Application Duty of care It is obvious that there is an existence of a relationship between the plaintiff and the defendant which exactly fit with the established category: driver and road users At that time, Trinh was driving in the traffic lane and Loan was walking which means Trinh owed Loan a duty of care Breach a DOC Four factors of the required SOC will determine that the defendant has breached a DOC or not First, Trinh was texting her friend while driving which is an action that is seriously dangerous and harmful Once there is a sudden approach, Trinh might not ready and calm enough to handle the situation as all of her concentration was on her phone Therefore, in this case, harm probability is very high Secondly, it is a low level in having precautions At that time, Trinh should have put her phone down and concentrated on driving Actually, it is not advisable to anything while driving Driving is an action that need high focus to avoid 31 Donoghue v Stevenson [ 1932) ]C 562 32 Romeo v Conservation Commission of Northern Territory [1998] 192 CLR 431) 33 Ingram v Britten [1994] ATR 81 11 any fortunate incidents might happen Next, it is apparent to know that any car crash will bring terrible injury, including death, so that the likely seriousness of harm in this case is high As a result, Loan, the plaintiff, received a wounded arm which prevent her using the parachute fluently and got a lot of injuries after that Lastly, as the defendant’s conduct did not bring advantage for community, there is no social utility It can be concluded that the defendant, Trinh, has breached a duty of care to the plaintiff, Loan with four elements above Defence Trinh can use ‘contributory negligence' 34 to claim herself a defence In fact, Loan was intoxicated when walking because before that she had four beers at the pub which means she was unconscious then fell into the traffic lane Supposed that Loan had not drunk beers then the accident would have happened To conclude, Loan was also negligent because it was her mistake when going in the wrong lane Conclusion In summary, Trinh owed and breached a duty of care to Loan However, Trinh could make a contributory negligence against Loan to lessen her liability 3.2 Loan v Huy Legal issue The legal issue is raised in this case is whether Loan owed Huy a tortious liability because Loan's parachute was pulled too low, just above the ground which caused Huy serious facial and eye injuries Legal rules The DOC in this case must be proven The ‘Neighbor test’ will be implemented if the relationship between the plaintiff and the defendant does not match the established categories (as cited above in the case between Peter v Evan) Application Loan and Huy did not have relationship that fall into the established categories in the duty of care Therefore, we will use ‘Neighbour test’ for this case Huy, the defendant and Loan, the plaintiff are ‘neighbour' because they were both participate in the parachute jumping day of Nha Trang Jump Society Nevertheless, this is the first time Loan jump but there is an accident and she was separated with Tung, her trainer Then she had to jump alone The accident with Huy was unforeseeable As her arm was injured in the accident with Trinh, she was prevented from pulling the parachuting on time then the time that the parachute was pulled was too late 34 Ingram v Britten [1994] ATR 81 12 and too near the ground The result is Huy got injured In this case, nobody can predict that situation will happen therefore the ‘neighbour test' does not meet the standard Conclusion To conclude, Loan did not commit a tort of negligence to Huy 3.3 Loan v Nha Trang Jump Society Legal issue The legal issue is whether Nha Trang Jump Society committed to Loan a tort of negligence when they carelessly forgot to check the equipment that caused Loan’s accident Legal Rule The DOC between the plaintiff and the defendant must determine by examining the relationship between two parties whether it falls into the established categories of the duty of care (as cited above in the case between Peter v Evan) Then, it must be identified if the defendant breached the duty of care with the required SOC (as cited above in the case between Peter v Evan) Application Duty of care Nha Trang Jump Society definitely owed Loan a duty of care because the relationship between them just fall into the established categories of the DOC, that is service provider and customer Breach a DOC The level of the probability of harm is low If Loan was prepared carefully with enough equipment to have a safer parachuting jump, the accident would not happen easy like that As stated in the Bolton v Stone (1951), the defendant will be more committed if the probability of harm is high However, with this case, the defendant is likely to have more support Secondly, the likely seriousness of harm is also high because parachute jumping is a kind of extreme sport It will be very dangerous to player’s life if there is any carelessness in preparing part and less experienced Moreover, the burden of taking precautions to avoid the risk of harm in this care is low as the little effort and cost of checking the safety of equipment before jumping Lastly, the social utility must be considered Supposed that they forgot to check the equipment but it does not bring any benefits to the community After considering four factors of the required standard of care, Nha Trang Jump Society has breached a duty of care with Loan Defence Nha Trang Jump Society can claim a defence because it was Loan’s fault for not telling them that she had a bruised arm If she told them that before being there that she had an accident which lead to her health did not meet the requirement, the instructor would have not allowed her to jump and there would be no accident 13 Conclusion To sum up, Loan could successfully sue Nha Trang Jump Society for breaching their owed DOC to her Nonetheless, Nha Trang Jump Society could make a contributory negligence against Loan and lower her liability 3.4 Huy v Hospital Legal issue The legal issue is whether the hospital could be sued for a tort of negligence by Huy when Huy fell down the slippery hospital stairs on the way to visit the garden Legal rules Following the rule in the case between Loan v Trinh, a DOC must be proved with the relationship of two parties and breach a DOC should be clarified (as cited above in the case between Peter v Evan) Application Duty of care The relationship between Huy and the hospital has exactly fall into the established categories of the DOC, which is the relationship of the hospital and the patient Consequently, the hospital owed Huy a DOC Breach a DOC As the cleaners of the hospital did not fulfill their responsibility to keep the stairs way dry, the probability of harm is very high because people could have slipped and suffered injuries Secondly, the likely seriousness of harm is also high because falling from the stairs way might cause broken leg, arm or even death Thirdly, the hospital could simply put at the stairway a caution sign for people if they have not finished the cleaning process which means the burden of taking precaution is low Social utility will not be counted in this case as the action of not cleaning the stairway in time does not benefit the society Conclusion To concude, the hospital could be successfully sued for committing a tort of negligence to Huy 14 15 ... a tortious liability 2. 2 Tom v James Legal Issue The legal issue is whether James, the defendant, committed a tort of negligence to Tom, the plaintiff, when James leapt onto the bar table, waved... negligence toward Tom and can be sued by Tom as a consequence Scenario 4: 4.1 Trevan v Isaac Legal Issues: The first issue is whether there existed a legally enforceable contract between Isaac, the seller... Evan as Peter can be held liable for contributory negligence 1 .2 Peter v Reid: Legal Issues: The legal issue is whether Reid, the defendant, committed a tort of negligence to Peter, the plaintiff