(TIỂU LUẬN) whether mchorton’s staf (the defendant) owed wesley (the plaintif) a DOC

Assignment TEAM PAPER Course Name Business law Course Code Law2447 Team Number 196 Tutorial Group 13 Lecturer’s Name Son Nguyen Tan Team Member Ha Gia Bao – S3911732 Doan Thi Thanh Hang – s3881225 Do Thi My Anh – S3915017 Word count 4178 TABLE OF CONTENT SCENARIO 1.1 Wesley v McHorton’s staf .1 1.2 Wesley v McHorton 1.3 Wesley v Dr Smith 1.4 Wesley v Dr McCoy 1.5 Wesley v The hospital 1.6 Wesley v Beverly .4 SCENARIO 2.1 Hung v Saigon University 2.2 Hung v Tung .5 2.3 Hung v Swimming Training VN 2.4 Hung v Mai 2.5 Mai v Tung .7 2.6 Mai v Saigon University SCENARIO 3.1 Steed v McDougall 3.2 McDougall v Steed 3.3 Dougall v Australia Post 10 3.4 Joe v Steed 11 3.5 Joe v McDougall .12 3.6 Joe v Australia Post .12 SCENARIO 4.1 Nicholas v Petra .12 4.2 Henry v Nicholas 13 4.3 Petra v Hugo 13 BIBLIOLOGY 15 LIST OF ACRONYMS: DOC: Duty Of Care NT: Neighbour Test VL: Vicarious Liability SGU: Saigon University AP: Australia Post STV: Swimming Trainning Vietnam POH: Probability Of Harm LSOH: Likely Seriousness of Harm COP: Cost Of Precaution SU: Social Utility Scenario 1.1 Wesley v McHorton’s staf Whether McHorton’s staf (the defendant) owed Wesley (the plaintif) a DOC? If yes, additionally, did McHorton breach a DOC for causing the accident of Wesley’s thigh? The relationship between the defendant and the plaintif is “Manufacturer - Consumer''.1 Therefore, McHorton’s staf owed Wesley a DOC To determine if McHorton’s staf breached a DOC to Wesley, it is necessary to analyse four factors2 Firstly, the POH is high because the lid of the hot cofee was not tightened so the liquid is certainly spilled out leading to the burn injury.3 Secondly, the LSOH is medium to high because Wesley sufered a skin burn on his right thigh, which may contribute to skin infection and problems with bones and blood vessels, especially leg disability.4 Thirdly, if McHorton’s staf tightened the lid of the hot cofee more carefully, the accident would not happen so the COP is easy and cheap.5There was no SU in this case.6 Consequently, McHorton’s staf breached the DOC to Wesley The defendant's conduct is reasonably foreseeable contributing to the plaintif’s injuries Overall, Wesley could sue McHorton’s staf under TON Wesley has contributory negligence because of his carelessness contributing to his injury At first, he had already seen the loose lid of the cofee but not tightened it Moreover, he did not notice the warning sign on the cup Therefore, it is a reasonable defense that McHorton could partly diminish its liability 1.2 Wesley v McHorton Hawkins v Clayton (1988) 164 CLR 539 Civil Liability Act 2003 (Qld) s 9(2) Liebeck v McDonald’s Restaurants (1995) WL 360309 Paris v Stepney Borough Council (1951) AC 367 Latimer v AEC Ltd (1953) AC 643 Watt v Hertfordshire Country Council (1954) Wlr 835 CA Ingram v Britten (1994) ATR 81 Two established legal issues are if McHorton (the defendant) owed the DOC to Wesley (the plaintif) and whether the defendant has vicarious liability to the plaintif As the relationship between both parties is the category of “Manufacturer - Consumer”, McHorton owed Wesley a DOC.8 Following that, three satisfied elements should be analysed if Wesley endured the vicarious liability from McHorton.9 Within the scope of employment, the staf is an employee of McHorton Additionally, his conduct of negligence occurred during the performance of authorized tasks, which brings benefits to the employer Therefore, Wesley could sue McHorton under VL Considering contributory negligence defense,10 Wesley’s carelessness contributed to his injury because he did not tighten the lid of the cofee cup carefully and notice the warning sign on the cofee cup Consequently, McHorton could minimise its VL 1.3 Wesley v Dr Smith Did Dr Smith (the defendant) owe Wesley (the plaintif) a DOC? If so, did Dr Smith breach DOC for causing Wesley’s injuries? Dr Smith and Wesley have a “Doctor-Patient” relationship 11 Hence, Dr.Smith owed Wesley a DOC The POH12 is low because the forgetting of providing MRI rarely happen Next, the SOH is medium to high because it makes the injury worse, especially leading to the thigh’s disability Next, the SOH is medium to high because it makes the injury worse, especially leading to the thigh’s disability Then, the COP is easy,13 compared to the harm cost of Wesley’s injury Lastly, social utility about Dr Smith’s conduct is not mentioned because Dr Smith’s careless action of saving another patient is not Hawkins, above n Century Insurance v Northern Island Road Transport Board (1942) AC 509 10 Ingram, above n 11 Rogers v Whitaker (1992) 175 CLR 479 12 Bolton v Stone (1951) AC 850 13 Latimer, above n accepted as the skill degree of a reasonable doctor 14 Consequently, Dr Smith owed Wesley a breach of DOC In addition, the defendant action is reasonably foreseeable contributing to the plaintif’s injuries Overall, Wesley could sue Dr Smith under TON 1.4 Wesley v Dr McCoy If Dr McCoy (the defendant) owed Wesley (the plaintif) a DOC? Additionally, whether Wesley could sue Dr McCoy under breach of DOC? The relationship between Dr McCoy and Wesley is defined as “Doctor Patient”.15 Consequently, Dr McCoy owed Peter a DOC Firstly, there was a low POH because there is no evidence to proof that McCoy’s conduct have occured regularly16 Then, similar to Dr Smith’s case, the SOH is high.17 Next, the COP is cheap and easy since the defendant asked Dr Smith about Wesley’s injury to provide an MRI test for him.18 Finally, the social utility is not available because Dr McCoy’s conduct did not give advantage to society.19 Therefore, Dr McCoy owed Wesley a breach of DOC Furthermore, the conduct of Dr McCoy is reasonably foreseeable that he caused Wesley’s injury To conclude, Dr McCoy committed a TON to Wesley 1.5 Wesley v The hospital Whether the hospital (the defendant) owed the DOC to Wesley (the plaintif)? Then, if yes, did the hospital have the vicarious liability for Wesley’s injury? 14 15 16 17 18 19 Bolam v Friern Hospital Management Committee (1957) ALL ER 118 Rogers, above n 11 Bolton, above n 13 Paris, above n Latimer, above n Watt, above n The established category relationship between the hospital and Wesley is “Occupier - Guest”.20 Consequently, the hospital owed Wesley a DOC To determine if the defendant is vicariously liable to the plaintif’s injury because of its employees’ conduct (Dr Smith and Dr McCoy), three requirements should be clarified.21 In this case, Dr Smith and Dr McCoy are employees of the hospital and they were working there as authorised tasks during office hours when the incident happened Their actions of negligence bring benefits to their employers Consequently, Wesley could sue the hospital VL 1.6 Wesley v Beverly The legal issue is whether Beverly (the defendant) owed the DOC and breached a DOC to Wesley (the plaintif) The category relationship of DOC between Beverly and Wesley is not identified so the NT is necessarily examined.22 The defendant’s conduct was not potentially harmful to the plaintif because it was legal to accelerate driving at the high speed onto the highway, even though this conduct closely and directly impacted on Wesley Therefore, Beverly did not owed the DOC and breach of DOC to Wesley Scenario 2.1 Hung v Saigon University The legit issue is whether Hung can sue SGU under TON as the entrances opened before access time? In this lawsuit, the relationship between Saigon University and Hung is determined as " Occupier- Guest”,23 which means that the defendant owns DOC with the plaintif 20 21 22 23 Australian Safeway Stores Pty Ltd v Zaluzna (1987 162 CLR 479 Century Insurance, above n Donoghue v Stevenson (1932) AC 562 Australian, above n 23 Due to the clear DOC, the analysis will be conducted to recognize whether SGU breached the DOC First and foremost, take four factors of precaution into consideration.24 POH is low as there is no precedent mentioned in SGU 's swimming pool.25 In spite of the low POH, the severity level of harm of Hung is high and it may be fatal, which means that the LSOH is high 26 In comparison to the loss, the COP is quite simple and inexpénive, 27 such as placing a big notice that the opening time is 7.30 am and closing all entrances carefully before that time but they did not In addition, SGU did not have the SO as there is no positive contribution 28 Furthermore, the significant harm to Hung is undeniable and the harm is reasonable foreseeability In conclusion, because SGU breached the TON, Hung can successfully sue SGU with these mentioned pieces of evidence Defense: Hung has contributory negligence to his accident in this case Actually, Hung have eaten a large meal 30 minutes before swimming, which means that he did not notice his health as29 swimmer only need to avoid eating too full, and waiting for an hour Thus, Hung contributed to his accident as he carelessly in ensure his health Thus, SGU is not entirely responsible for Hung's injuries 2.2 Hung v Tung This case has two legal issues that need to be addressed The first issue is whether Tung owed Hung DOC and could successfully take Tung to court The relationship between Hung and Tung did not belong to the established DOC category, the Neighbor Test must be implemented.30 In this case, Tung’s ignorance directly afected Hung's life and Hung is Tung's neighbor 24 25 26 27 28 29 30 Civil, above n Bolton, above n 13 Paris, above n Latimer, above n Watt, above n Ingram, above n Donoghue, above n 25 as Tung is the lifeguard of the SGU's swimming pool where Hung's accident occurred Thus, Tung owed Hung DOC Four SOC rules will be applied.31 Because of the severe cramps in his limbs, it may be difficult for POH to keep his head above water and thus cause him to become unconscious.32 As lethality may be unavoidable in this situation, the LSOH is also elevated.33 In addition, the COP is low because Tung is a lifeguard, and he could easily rescue Hung in this case, but he refuses.34 Because Tung initially ignored Hung despite finally performing CPR to help him, there is no SO in this case.35 Furthermore, the harm caused by Hung is entirely predictable Thus, Hung can sue Tung successfully The second question is whether Saigon University bears VL for Tung's behavior Citing from Century Insurance v Northern Island Road Transport Board [1942], We need to see "scope of employment" 36 to determine if the employee make mistake and this can afect the employer or not Firstly, Tung must be employer of SGU The second condition, the employer need to their authorised work in their working hour Obviously, Hung came to the pool early and it was not time for Tung's work, so the second condition did not satisfy Therefore, SGU does not has vicarious liability for Tung's action 2.3 Hung v Swimming Training VN This case also comprises two legal issues The first case is Hung wants to know if he has a case against Swimming Training VN under TON 31 Australian, above n 23 32 Bolton, above n 13 33 Paris, above n 34 Latimer, above n 35 Watt, above n 36 Century Insurance, above n In the established category, this relationship between Hung and swimming training is not included As a result, the neighbor test is being used 37 Because Hung's injuries were caused directly by the incorrect training he received from STV Because of this, STV owed Hung DOC money Hung's (plaintif) life is directly afected by the poor CPR procedure, thus the POH and LSOH are extremely high Evidence shows that STV educated its employees to press on the chest just 50 times per minute, resulting in broken ribs and punctured lungs for Hung, instead of the proper CPR procedures of pressing on the chest 100 times per minute (proven by scientists in 2001) The COP is minimal because an organization can easily and inexpensively reorganize fresh training In this case, the SU does not have a stake As a result, Hung has legal grounds to sue Tung under the TON Another question is whether Hung and Swimming training have any VL In this case, Hung was hired and trained by STV (Century Insurance v Northern Ireland Road Transport Board) The plaintif sufers harm when the CPR method is incorrect, and here is where he swim As a result, STV bears VL for Tung's failure to complete his work because they supplied an inadequate approach 2.4 Hung v Mai The main issue is whether Hung can sue Mai under TON as Hung's injuries The relationship between Hung and Mai is belong to non-establish category and the “Neighbor test” is applied Although she did not know how to swim, she still jumps into pool, which result in Hung’s right eye beared serious harm Thus, Mai owed Hung DOC SOC is taken again to judge this case.38 POH and LSOH is high as she is a non- swimmer, so when she try to rescue his boyfriend, it is obviously impossible.39 37 38 39 40 40 However, the COP is high as it is unable to a non swimmer Donoghue, above n 25 Civil, above n Bolton, above n 13 Paris, above n to rescue people in water.41 Especially, SO is extremely high as Mai's act come from the purpose of saving her boyfriend life and no intention to harm to Hung.42 Therefore, Hung can not sue Mai successfully under TON 2.5 Mai v Tung Because of Tung's (the defendant's) disregard for Mai's partner, the real question is whether she may bring a TON claim against him for her injuries Mai and Tung's relationship falls within the "non-establishment" category, hence the "neighbor test" is applicable.43 To begin, Mai's inability to swim was exacerbated by her hasty rescue attempt, which pushed her to jump in to save Hung Consequently, Tung must pay Mai DOC since Mai's actions are directly influenced by Tung's, and the potential of harm is obvious SOC is taken again to examine this case.44 POH and LSOH is extremely high as the plaintif is unable to swim, but tries to plunge into the pool to rescue her boyfriend.45 46 Obviously, the saving is fail as well as she can be submerged by the victim and drown might be unavoidable The COP is low as it is easy for a lifeguard (defendant) to rescue her boyfriend, 47 and there is no SO in this situation.48 In addition, the plaintif's harm is reasonably foreseeable Therefore, Mai can sue Tung successfully 2.6 Mai v Saigon University Did the defendant (Saigon University) owe the plaintif’s (Hung) a DOC? And, if that's the case, did they own DOC for Mai’s injuries? 41 Latimer, above n 42Watt, above n 43Donoghue, above n 25 44 Civil, above n 45 Bolton, above n 13 46 Paris, above n 47 Latimer, above n 48 Watt, above n It can be examined that the relationship between Mai and SGU is “Occupier- Guest '', so the DOC is established.49 Like the lawsuit between Hung and SGU, it can be concluded that Mai can sue SGU successfully Scenario 3.1 Steed v McDougall The legal issue is whether Mr McDougall committed TON by reversing out of a driveway carelessly, and whether Mr Steed contributed to his injuries Since the parties' relationship has been established, McDougall and Steed's DOC categories are: "Motorist - Road user".50 As a result, the defendant owed the plaintiff a DOC Because the DOC is obvious, four elements should be examined to determine whether McDougall violated the DOC and caused Steed's injury The POH was low because McDougall and Steed had not been involved in any accidents in many years 51 The LSOH, on the other hand, was high because the accident could result in serious injuries or even death.52 Next, Mr McDougall could easily eliminate the risk by reversing into his driveway and driving cautiously out into the street, resulting in a low COP 53 There is no SU in this location.54 The SOC is dissatisfied,55 and McDougall has violated a DOC to Steed Furthermore, McDougall caused Steed to sustain injuries that were reasonably predictable Finally, Mr Steed can successfully sue Mr McDougall under TON Defence: Because Mr Steed played a role in his accident, a similar legal rule for CND could be applied in the Mr McDougall v Mr Steed case.56 Mr Steed was at fault for the accident because he continued to ride his motorcycle despite seeing the car from two metres away McDougall’s car is broken and he has to spend money to fix As a result, Mr McDougall's liability may be reduced if the CND is successful 49 Australian, above n 23 50 Civil, above n 51 Bolton, above n 52 Paris, above n 53 Latimer, above n 54 Watt, above n 55 Civil, above n 56 Ingram, above n 3.2 McDougall v Steed This case has two legal issues: The first legal issue is whether Mr Steed owed Mr McDougall a DOC and, by continuing to ride his motorcycle, breached that DOC Mr Steed owed Mr McDougall a DOC because their relationship established a DOC category: motorists – road user.57 Failure to yield to other vehicles as a driver could result in a fatal accident; thus, POH was high.58 Because someone could be killed in the event of an accident, LSOH was also high.59 Mr Steed's motorcycle easily stopped when he saw the car from two metres away, so the COP was low.60 There was no SU in this case61 Mr Steed failed to meet the required SOC,62 and breached a DOC to Mr McDougall because he did not act in the manner that a reasonable person would have in the same situation Mr Steed caused Mr McDougal's car to be damaged in a way that was reasonably predictable Finally, Mr Steed did a TON of damage to Mr McDougall Mr McDougall's second legal issue is whether he can sue Mr Steed under the TON for using the incorrect avoidance technique; the sub-issue is whether Mr Steed contributed to his accident Mr Steed owed Mr McDougall a DOC for the same reason that he owed Mr McDougall a DOC in the previous case.63 The POH was high because incorrect avoidance techniques resulted in a fatal accident.64 As a result, the LSOH was high because swerving without enough space ahead could cause serious injuries or even death.65 Mr Steed's COP, on the other hand, was difficult and costly because the AP 57 Imbre, above n 14 58 Bolton, above n 59 Paris, above n 60 Latime, above n 61 Watt, above n 62 Civil, above n 63 Imbre above n 14 64 Imbree, above n 14 65 Bolton, above n 10 company had trained him to use the incorrect technique.66 Despite the fact that there was no space ahead of him, he swerved instead of stopping the motorcycle There was no SU in this neighbourhood.67 Mr Steed did not violate a DOC because he did what a reasonable person would in the same situation, so the required SOC is satisfied.68 Overall, Mr McDougall has the right to sue Mr Steed under the TON for continuing to ride his motorcycle despite seeing the car Defence: If the plaintif is found to have contributed to his accident, CND is established.69 Mr McDougall was at fault for the collision because he backed out of a driveway when his eyesight was severely blocked by greenery Besides, Mr.Steed also sufered from serious accident Therefore, this may be a successful CND, significantly decreasing Mr Steed's liability 3.3 McDougall v Australia Post The first legal issue is whether Mr McDougall can sue AP under vicarious liability Mr Steed was performing an authorised employment at the time, which required him to deliver mail for the company Mr Steed's conduct, as a result, was within his "scope of employment".70 Therefore, AP was held accountable for the activities of Mr Steed, an employee, in causing the collision with Mr McDougall's car To summarise, Mr McDougall may sue AP for VL The second legal question is whether Mr McDougall can sue AP for teaching incorrect avoidance techniques under the TON Due to the lack of recognition of the parties' relationship in this instance, the Neighbour Test is used to assess the situation.71 Indeed, it was reasonably foreseeable that Mr Steed's improper use of the AP-taught 66 Paris, above n 67 Watt, above n 68 Civil, above n 69 Ingram,above n 70 Century, above n 71 Donoghue, above n 11 avoidance technique would result in direct harm to Mr McDougall As a result, AP owed Mr McDougall a DOC The POH was high because teaching Mr Steed the incorrect avoidance technique could result in a fatal accident.72 LSOH was also elevated due to the potential for serious injury or death in a car accident.73 On the other hand, the COP was low because the company could have been more cautious in providing training.74 This area was devoid of SU.75 As a result of failing to comply with the SOC,76 AP violated a DOC to Mr McDougall The defendant caused the plaintif to sufer reasonably foreseeable damages Thus, Mr McDougall has the ability to sue AP under the TON 3.4 Joe v Steed The legal issue is whether Joe can sue Mr Steed under the TON for colliding with him on his motorcycle In this case, the defendant and plaintif recognized a "Motorist-Road user" relationship, which meant that Steed owed Joe a DOC.77 The POH is low in this case because Steed has been trained to ensure safety every two years Both Steed and McDougall are familiar with the road in Kambah.78 Following that, the LSOH is high,79 as Joe has been knocked down, possibly fatally, by the head hitting Additionally, the COP is significant because Mr Steed was unable to prevent the motorcycle from colliding with Joe as a result of the sudden collision and their close proximity.80 There is no SU.81 Joe did not breach the DOC 82 Mr Steed caused Joe to sufer reasonably foreseeable head injures As a result, Joe cannot sue Steed successfully, as he did not commit the TON 3.5 Joe v McDougall 72 Bolton, above n 73 Paris, above n 74 Latimer, above n 75 Watt, above n 76 Civil, above n 77 Imbree, above n 14 78 Bolton, above n 79 Paris, above n 80 Latimer, above n 81 Watt, above n 82 Civil, above n 12 The legal issue is whether Joe can successfully sue Mr.McDougall under TON for indirectly causing an accident for Joe Steed owed Joe a DOC in this case because the defendant and plaintif recognized a "Motorist-Road user" relationship.83 The POH was low,84 and the LSOH was high,85 as stated in Joe v Steed and Steed v McDougall Precaution is justified on a large scale Finally, there is no SU in this case As a result, McDougall breached a DOC.86 Joe sustained reasonably foreseeable head injuries as a result of Mr McDougall's actions In conclusion, Joe may sue McDougall successfully 3.6 Joe v Australia Post The legal issue is whether Joe can sue AP under vicarious liability Similar to the lawsuit of McDougall and AP, Steed’s action afects directly on Joe Therefore, Joe can successfully sue AP Scenario 4.1 Nicholas v Petra The legal issue is if the enforceable option contract was formed and Nicholas could sue Petra under BOC Accordingly, three requirements for reasonably forming an option contract should be analysed: agreement, intention and consideration between parties In this case, Nicholas did not pay a deposit when he made an open ofer with Petra about selling him the Leica MP 39 with $10,000 after he could sell his pieces of his investment portfolio shares 87 Therefore, an open ofer was not valid and there was no enforceable contract between them Overall, Petra could not breach the contract to Nicholas 4.2 Henry v Nicholas The legal issue is whether there is an enforceable unilateral contract and whether Henry can successfully sue Nicholas for BOC 83 Imbree, above n 14 84 Bolton, above n 85 Paris, above n 86 Civil, above n 87 Dickinson v Dodd (1876) Ch D 463 13 According to the requirement to create a contract, it must satisfy three criteria: agreement, intention, and consideration To begin, Henry and Nicholas accept both parties' ofers Second, Nicholas and Henry's agreement occurred in a business context, as they were negotiating about a transaction, and the agreement included conditions Thus, the parties intended for this agreement to be legally binding.88 After reaching an agreement, Henry sent Nicholas a ten thousand dollar advance payment three days later As a result, Nicholas and Henry entered into a verbally enforceable contract Otherwise, the preceding legal rule stated unequivocally that an option contract existed Nicholas, however, has withdrawn his ofer without providing Henry with any compensation This indicates that Nicholas did not adhere to the agreement and thus violated the contract Conclusion, Nicholas and Henry's contract is enforceable Henry may sue Nicholas for BOC 4.3 Petra v Hugo The legit issue is whether the contract between is Petra and Hugo will be enforceable after a court and whether Petra could retake the camera Firstly, Hugo ofer Petra to sell her camera with $20000 and Petra did accepted immediately and even think that she got luck, which means the both parties reached the agreement.89 The first condition is satisfied The second condition is Petra receiving the total payment for her, so the consideration is satisfied Finally, the relationship between Petra and Hugo in business context and both of them were intend to create a legal relation Thus, the contract is formed legally Therefore, if Petra want to repay the money to take the camera back, she will break the contract Additionally, in this case Petra can not be seen as a victim, as this transaction is the willingness, and Hugo did not threat or deceive her as Hugo just gave her an ofer and she can choose to agree or not Once you agree, you will be bound by what you sign Thus, it is impossible for Petra to repay the money and cannot take the camera back 88 Smith v Hughes (1871) LR QB 597 89 Smith, above n 91 14 Bibliology Articles Cases Australian Safeway Stores Pty Ltd v Zaluzna (1987 162 CLR 479 Bolam v Friern Hospital Management Committee (1957) ALL ER 118 Century Insurance v Northern Island Road Transport Board (1942) AC 509 Dickinson v Dodd (1876) Ch D 463 Donoghue v Stevenson (1932) AC 562 Hawkins v Clayton (1988) 164 CLR 539 Ingram v Britten (1994) ATR 81 Latimer v AEC Ltd (1953) AC 643 Liebeck v McDonald’s Restaurants (1995) WL 360309 Paris v Stepney Borough Council (1951) AC 367 Smith v Hughes (1871) LR QB 597 Watt v Hertfordshire Country Council (1954) Wlr 835 CA Legislation Civil Liability Act 2003 (Qld) s 9(2) Treaties Others 15 ... v McHorton’s staf Whether McHorton’s staf (the defendant) owed Wesley (the plaintif) a DOC? If yes, additionally, did McHorton breach a DOC for causing the accident of Wesley? ??s thigh? The relationship... defendant and the plaintif is “Manufacturer - Consumer''''.1 Therefore, McHorton’s staf owed Wesley a DOC To determine if McHorton’s staf breached a DOC to Wesley, it is necessary to analyse four factors2... (1994) ATR 81 Two established legal issues are if McHorton (the defendant) owed the DOC to Wesley (the plaintif) and whether the defendant has vicarious liability to the plaintif As the relationship