(TIỂU LUẬN) whether ned can successfully sue quick for her violation of the “tort of negligence” (crucial issue) and the defendant quick breached a DOC to the plaintiff (ned)

ASSIGNMENT 2: COMMERCIAL LAW Subject Code: Subject Name: Location & Campus Class Group / Team Student ID LAW 2447 Commercial Law RMIT Vietnam, SGS SGS-08 / Team 47 S3836310 S3836309 Student Name S3880303 Tran Gia Minh Nguyen Hoang Khang Lecturer Name Word counts Nguyen Huynh Thuy Trang Dr Estela Gutierrez Rodriguez 3970 words Table of Contents LIST OF ACRONYMS SCENARIO 1: *Tortious liability .3 Ned (plaintiff) v Sara Quick (defendant) .3 Quick (plaintiff) v Dr.Duy (defendant) Quick (plaintiff) v The Oakleigh hospital (defendant) Ned (plaintiff) v the company (defendant) .6 *Vicarious liability Ned (plaintiff) v the company (defendant) .7 Quick (plaintiff) v the hospital (defendant) SCENARIO 2: *Tortious Liability Tung (plaintiff) v Chu (defendant) Binh (plaintiff) v The hospital (defendant) Tung (plantiff) v The Blackrock Café’s Ownwer (defendant) 11 Binh (plaintiff) v Tung (defendant) 12 SCENARIO 3a *Contract Law .12 Gorden (plantiff) v Outback Burger (defendant) 12 Sam (plaintiff) v Outback Burger (defendant) 14 SCENARIO 3b 15 Carl (plaintiff) v Direct (Defendant) 15 Carl (plaintiff) v Opera (Defendant) 15 LIST OF ACRONYMS DOC: Duty of care NT: Neighbour Test SOC: Standard of care TON: Tort of Negligence VL: Vicarious Liability CN: Contributory Negligence SCENARIO 1: *Tortious liability Ned (plaintiff) v Sara Quick (defendant) Legal Issues Whether Ned can successfully sue Quick for her violation of the “Tort of negligence” (crucial issue) and the defendant Quick breached a DOC to the plaintiff (Ned) Duty of Care In the case of the “NT”1, it is reasonable to expect that Quick in the throng would be damaging to others Furthermore, Quick actions had a direct impact on Ned As a result, the exam was passed, and Quick owed Ned the DOC Breach of Duty of Care The case Blake v Galloway2 and Hackshaw v Shaw3 are applied There are four requirements analyzed to justify whether Quick breached DOC according to 4,5,6and7 Firstly, as the scooter’s brake cannot work well when driving in store, driving scooter in store and then raising speed will easily cause crash Therefore, the probability of harm is high Secondly, she suddenly lost control and hit Ned by a scooter and cause the victim a broken leg However, the worst case is unlikely to cause death Therefore, the likely seriousness of harm is medium Thirdly, the burden of precaution is low and easy simply by slowing down to walking speed and observe the Donoghue v Stevenson (1932) AC 562 Blake v Galloway [2004] All ER 315 Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662- 663 Bolton v Stone [1951] AC 850 Paris v Stepney Borough Council [1951] AC 367 Latimer V AEC LTD [1953] AC 643 at [193] Ward v London County Council [1938] All ER 341 surrounding carefully After analyzing the four requirements, Quick and Ned failed to meet the required standard of care and breached their duty of care Conclusion In conclusion, Ned can successfully sue Quick under TON for his suffered injuries Quick (plaintiff) v Dr.Duy (defendant) Issues Whether Quick can sue Dr Duy under TON for not informing her the risk of sympathetic ophthalmia before the operation (crucial issue) and whether the plaintiff could be contributory negligent to this accident (subordinate issue) Duty of Care The first issue is to identify “whether Dr.Duy owed Quick a DOC” The relationship between Dr Duy and Quick obviously falls within Established categories of DOC, doctors-patients relationship, stated in Rogers and Whitaker8 Therefore, Dr.Duy owed Quick a DOC Breach of Duty of Care To determine whether Dr.Duy breached the DOC, four criteria were examined Firstly, the probability of harm is low because Quick's right eye procedure has a risk of affecting her left eye of about 1:1400, and not all cases result in blindness in the affected eye Despite the low probability of harm, the severity of harm is significant because Quick went almost completely blind, which means she will remain blind for the rest of her life, lowering her psychology, impairing her daily routine and career, and preventing her from being a normal person Thirdly, the cost of precautions is quite easy and inexpensive, such as informing Quick about the danger of sympathetic ophthalmia before the operation, so she may decide whether to have the surgery or not Furthermore, the precaution was required and had to be carried out by Dr.Duy as a doctor's responsibility The last factor is social utility which is not crucial in this scenario as it Rogers and Whitaker (1992) 175 CLR 479 was not the act useful for society As a result, Dr Duy failed to fulfill the requisite SOC and breached the DOC by failing to act as a reasonable doctor Defence According to Ingram v Britte9, there is no contributory negligence defense because it is reported that Quick had constantly questioned the doctor about the various complications of operation, including the risk of sympathetic ophthalmia She was just a patient with several injuries who knew nothing about medicine, especially the operation's effects on her left eye, which she wanted to ask the doctor about Dr.Duy was required to notify the plaintiff of all potential complications and hazards, but the defendant failed to so carefully As a result, Quick cannot be criticized for not specifically inquiring if the operation on her right eye might have an impact on her left eye Conclusion: Dr Duy committed TON and Quick can sue successfully him under TON Quick (plaintiff) v The Oakleigh hospital (defendant) Issue The crucial issue is whether Sara Quick can successfully sue Oakleigh Hospital under TON when they hire a doctor who did not graduate from Melbourne Medical School and let him operate for Quick which led to Quick’s eye injuries The subordinate issue is whether Quick could be contributory negligent to this accident DOC The first issue is whether the Oakleigh hospital owed Quick a DOC Based on Australian Safeway Stores Pty Ltd v Zaluzna10, the defendant obviously owed the plaintiff a DOC because there is a straightforward relationship between occupiers (the Oakleigh hospital) and entrants (Quick) Breach of DOC Ingram v Britten [1994] Aust Torts Reports 81-291 (p.238) 10 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 The following factors are examined in determining if the defendant breached the DOC Firstly, the probability of harm is First, the probability of harm is likely low to medium due to the reason that the probability of hospital would not check the doctor background is low Moreover, in this case, he was well-known for his dexterity, which means he had rehearsed and saved the lives of several people However, the seriousness of harm is significantly high Even though a very skillful doctor has experience in saving people life, but in fact, did not graduate from Melbourne Medical School meaning we cannot guarantee his talent and knowledge and he may lack of knowledge in some areas and as a result, may put patients into dangerous situation Thirdly, the cost of taking precautions was simple and inexpensive, such as patiently spending more time to examine the doctor’s background Finally, it has high social utility because the hospital was in desperate need of doctors at the time, and Dr Duy was a capable physician who they could not dismiss There could have been a lot of unsaved individuals if they hadn't hired him Quick could, however, change doctors or go to a different hospital with minimal restrictions if the restoration of his right eye's vision is not urgent Therefore, the defendant breached DOC they owed the plaintiff due to his failure to meet SOC However, according to case Cork v Kirby MacLean 11and Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound)12 causation successfully established since without the hospital’s carelessness, the accident would not happen due to Dr Duy’s conduct Additionally, remoteness was reasonably foreseeable due to the reason that the hospital hasn’t carefully checking the background of their doctor Hence, unqualify doctor hired can cost failed operation creating dangerousness to patient Conclusion: Quick can sue the hospital under TON because harm caused by breach was satisfied Ned (plaintiff) v the company (defendant) Legal Issue Whether Ned can sue company under Ton for providing Quick incorrect riding scooters technique which Quick applied in this case, suffering from serious eye injury and breaking Ned’s leg DOC Whether the company owed Ned a DOC The company obviously owed the plaintiff a DOC since an occupier who is the owner of a property has the responsibility to ensure safety for people such as the plaintiff based on 10 (cited above) occupiers-entrants relationship The 11 Cork v Kirby MacLean Ltd [1952] All ER 402 12 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound) [1961] AC 388 company’s conduct was potentially harmful, as they required Quick to run the scooters with uneasily controlling brake as a reasonable providing vehicles company should not have done It was predictable that providing incorrect scooters-riding technique could make the clients injured after running it, particularly broken leg here However, Quick was the one who closely and directly bumping into Ned and causing injuries Therefore, the company did not owe a DOC Conclusion: Ned cannot sue the company under TON because Ned was not the ‘neighbor’ of the company *Vicarious liability Ned (plaintiff) v the company (defendant) The legal issue is whether the company was vicariously liable toward the case between Ned v Quick According to Century Insurance v Northern Ireland Road Transport Board 13, an employer is vicariously liable for damages incurred by the negligence of the employee if this harmful act was carried out within the job area In this case, Quick is a part time employee, she was performing approved job for the company's advantage Thus, the company was vicariously liable for Quick’s actions In conclusion, Quick can sue the company under vicarious liability successfully, which will be more advantageous for Ned because the company will have more probability to pay compensation than Quick (employee) Quick (plaintiff) v the hospital (defendant) The legal issue is whether the Oakleigh hospital was vicariously liable toward the case between Quick v Dr.Duy 13 Century Insurance v Northern Island Road Transport Board [1942] 72 LI.L.Rep 119 Regarding 12 (cited above), if the harmful act was done within the "work field," an employer is vicariously responsible for damages caused by the employee's negligence Dr Duy was doing his duty as a doctor working at a hospital in unauthorized manner He did not tell Quick about the risk before operation resulting in inflammation and sympathetic ophthalmia in his left eye Additionally, the hospital owned non-delegable duty of care to its patient – Quick according to Roe v ministry of Health14 The duty of care extends to negligent acts and not to intentionally harmful by Dr Duy Therefore, the hospital was vicariously liable for Dr Duy’s actions In conclusion, Quick can successfully sue the hospital under vicarious liability, which will bring more benefits for Quick than suing Dr Duy due to higher probability to receive indemnification SCENARIO 2: *Tortious Liability Tung (plaintiff) v Chu (defendant) Issue The crucial issue is whether Chu owes a DOC to Tung because his action on the lighting grid directly led to Tung’s injuries The subordinate issues are whether Chu has breached the DOC and Chu can ask for CN DOC The first problem is to find out if Chu owes Tung a DOC With the application of the ‘NT’ of (cited above) It can be confirmed that the defendant owes the plaintiff a DOC At first, it was foreseeable for Chu that the accident would occur if he did not perform reasonable action Waving hands and leaping out at the lightning grid was foreseeably harmful to other people In this case, Tung was directly injured by Chu’s action (suffering from significant soft tissue to his neck and spine) Therefore, the test is satisfied, Chu owed Tung the DOC 14 Roe v ministry of Health [1954] QB 66 Breach of DOC There are four requirements analyzed to justify whether Chu breached DOC Firstly, everyone knows that someone would injure if that person did not aware of obstacles falling from the ceiling Moreover, the bar’s lighting is casually dim to stimulate the atmosphere, which in this case that Chu leaping around and might crash with people when he uncontrolling himself So, the possibility of harm is medium Next, in the situation that an accident occurs, the falling of the lighting grid obviously cause the victim to suffer from mild to severe injury The worst case is likely to cause death Therefore, the likely seriousness of harm is medium Thirdly, the burden of taking precautions is cheap and easy because the defendant can simply request the band to notify the guests before reaching the chorus line and control himself from doing what a reasonable person would in this situation Finally, social utility in this case is not important After analyzing the four requirements, Chu failed to meet the required SOC and breached DOC Conclusion In conclusion, Tung can successfully sue Chu under TON for his suffered injuries Binh (plaintiff) v The hospital (defendant) Issue The main issue is whether Binh can successfully sue the hospital under TON for letting the stairs being slippery so that the plaintiff walked through on the way to the hospital garden and fell, resulting in his injuries The subordinate issue is whether Binh could be contributory negligent to this accident DOC The first issue is whether the hospital owed Binh a DOC The hospital obviously owed the plaintiff a DOC since an occupier who is the owner of a property has the responsibility to ensure safety for people such as the plaintiff based on 10 (cited above) occupiers-guests relationship and the defendant needs to make preventions for not to cause harm to others15 15 Roads & Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [45] Breached of DOC There are factors that needed to be analyzed for determining whether the hospital breached DOC Firstly, the probability of harm is medium because it was foreseeable that anyone could using the floor and stairs and suffer accidents such as falling down the stairs without any notice before the cleansing hours This means the stairs are daily closed until 7am to prevent others entering while people rarely using at that time and 7am is regular opening time since the hospital was established Secondly, the likely seriousness of harm is significantly high as an abrupt fall caused by slippery could cause a terrible injury It could have led to the death if he had not founded out on time Yet, Binh broke his arm in this case Thirdly, the cost of taking precaution is cheap and easy in this case by putting a warning slippery sign to prevent patients walking through and get injure Moreover, the hospital can quickly move the cleansing time toward a little earlier for that day in order to protect their patients Lastly, there is no social utility issue in this situation Hence, the hospital failed to what a reasonable hospital would have done in the circumstances (failed to meet SOC), therefore, they breached DOC they owed Binh Defence According to civil liability legislation of Ingram v Britten16 (cited above), if the plaintiff contributed to their own injury, liability will be appointed between the defendant and the plaintiff In this case, Binh could raise his contributory defense because he should have known that yesterday was heavy raining which led to the slippery floor and stairs, so he must take good care of himself and being more careful in the next morning Hence, the plaintiff was also negligent along with the defendant’s negligence Conclusion: Binh will not totally successful in suing the hospital The liability will be appointed between the plaintiff (50%) and the defendant (50%) because both of them were negligent Tung (plantiff) v The Blackrock Café’s Ownwer (defendant) Issue The crucial issue is whether the defendant owes a DOC to Tung because they did not provide enough safety equipment for the crowd size event of 500 people, which indirectly lead to Tung’s injuries The subordinate issues are whether Blackrock Café’s owner has breached the DOC and if the causation and the remoteness tests are satisfied Besides that, The Blackrock Café could ask for CN DOC The first issue is whether the Café's owner owed Tung a DOC Based on 10 (cited above), the Blackrock café obviously owed the plaintiff a DOC because there is a direct relationship between occupiers (the Blackrock Café’s owner) and guest (Tung) Breach of DOC There are four requirements analyzed to justify whether the Blackrock Café breached DOC Firstly, the possibility of harm is low since reasonable persons rarely expect the lighting grid to crash Moving to likely seriousness, the seriousness is medium as the plaintiff was hitting by the light and the worst case would not cause the plaintiff to death Next, the burden of taking precautions is cheap because they can simply use eyehooks and a chain to fix the equipment before the accident happens Social utility, in this case, is not important Although the possibility and seriousness of harm the low and medium rate, the precautions are simple and cheap For this factor, the defendant breached DOC because it failed to behave as a reasonable bar owner However, according to11and 12 (cited above), causation and remoteness were not successfully established since without the owner’ carelessness, the accident still happened due to Chu’s conduct Moreover, the defendant did not directly cause injury to Tung Conclusion In conclusion, Tung cannot successfully sue the Café's owner under TON because harm caused by breach was not satisfied Binh (plaintiff) v Tung (defendant) Issue The legal issue is whether Binh can successfully sue Tung under TON for colliding with him and creating Binh’s serious injuries in his chest DOC Whether the defendant owed the plaintiff a DOC Without falling into established categories, the “NT” of (cited above) is applied Both of them are friends and visited the Black Café together Hence, their actions would affect another In this case, Tung was hit by the lighting grid and unexpectedly collided with Binh who got serious injured in the chest Nonetheless, since Tung's actions were affected by the lighting grid hit, Binh's affected is unforeseeable Therefore, the test is not satisfied, and Tung did not owe a DOC Conclusion: Binh cannot sue Tung under TON because Binh was not the ‘neighbor’ of Tung SCENARIO 3a *Contract Law Gorden (plantiff) v Outback Burger (defendant) Issue: The legal issue is whether Gordon could get the car prize from Outback Burger because he obtained a gold ticket and presented it to the company's headquarters despite being unaware of the promotion's discontinuation An agreement is made up of two parts: an offer and an acceptance according to Smith v Hughes16 The offer can only be accepted by the offeree, and the offer must be communicated to the offeree in order for it to be valid (R v Clarke)17 and the same applied to acceptance as stated in Felthouse v Bindley18 The offeror has the right to revoke (withdraw) an offer at any moment before it is accepted and it must be communicated conforming with Dickinson v Dodds 19 An offer must be 16 Smith v Hughes (1871) LR QB 597 17 R v Clarke [1927] 40 CLR 227 18 Felthouse v Bindley [1862] 142 ER 107 19 Dickinson v Dodds (1876) Ch D 463 distinguished from an invitation to treat which is a statement that invites others to make an offer20, including advertisements21 There are, however, exceptions to the invitation to treat rule that must be considered In cases where it comprises a unilateral offer, advertisement is a sort of invitation to treat that can become a true offer A unilateral agreement occurs when only one person makes an offer to the rest of the world, promising to pay anything of value to anyone who performs a certain deed Anyone can accept such unilateral offer by executing the requisite act The first subordinate problem is whether there is a contract between Gorden and Outback Burger Related to Smith v Hughe16, there exists an offer of 50 that could be redeemed for a scratch ticket that could win a Toyota Land Cruiser and Gorden ordered Therefore, It took a day for radio and newspapers to notify the cancellation of the promotion Outback Burgers has, however, issued a valid revocation to Gordon Gorden heard other people in the hospital discussed the revocation but ignore it and still come to the company to claim the reward According to the rule “revocation can be communicated by third party” Although the company did not communicate to Gorden directly about the revocation ( he heard it from others), so the revocation was still communicated before acceptance Outback Burger has successfully retracted its unilateral offer, and Gordon does not have the right to neither get the reward nor sue the defendant CONCLUSION In conclusion, Gordon and Outback Burger have a unilateral contract, but Outback Burger rescinded the offer before Gordon could accept it As a result, Gordon cannot sue Outback Burger and collect the award Sam (plaintiff) v Outback Burger (defendant) Issue The legal question is whether there is a valid contract between Sam & Outback Burger The legal rules for this issue is either Carlill v Carbolic Smoke Ball Co 22 or offer revocation rule by Dickinson v Dodds 19 (cited above) 20 Pharmaceutical Society of Great Britain v Boots, Court of Appeal [1953] QB 401 21 Patridge v Crittenden [1968] WLR 1204 22 Carlill v Carbolic Smoke Ball Co [1893] QB 256 Outback Burgers marketed their offer on the radio and in the press in this case, with a grand prize of a sports automobile as the grand prize As can be seen, Outback Burger made a unilateral offer to give away a sports car to anyone who scratched a ticket with a gold automobile, and in order to receive the ticket, a specific act of collecting 50 coupons from burger purchases was required Sam had gathered everything he needed Sam had gathered everything he needed Sam speculator scavenged through the bins of his local Outback Burgers restaurant and amassed 100 coupons with two gold cars His acceptance was genuine, and he had the right to claim the reward, because he had the required amount of coupons and had followed the promotion rules As a result, the two parties have reached an agreement He delivered the tickets to the Outback Burger Office as directed, but they afterwards placed a warning claiming his tickets were invalid due to a printer's error The offer can only be canceled before the acceptance has been completed, according to the rule of offer revocation As a result, the retraction of the Outback Burger offer is deemed illegitimate because it was conveyed after Sam had accepted it Outback Burger is expected to fulfill its obligation to provide Sam with a sports automobile, and Sam has the right to sue them if they fail to so contract with a single party Conclusion In general, the two parties have formed a unilateral contract Outback Burger, on the other hand, is being unreasonable by withdrawing its offer after Sam has accepted it Because the acceptance was made before the offer, Outback Burger is obligated to finish the deal SCENARIO 3b Carl (plaintiff) v Direct (Defendant) Issue The legal question is whether Carl can purchase the CD set at the price of $75 or Carl need to buy the CD set at the new price of $135 DOC Offer and acceptance rules, as well as invitation to treat, are the legal standards that govern this situation (cited above in the case between Sam v Outback Burgers) Furthermore, the offeree's refusal to accept the offer, as well as the counter-offer where rejection is accompanied by a fresh offer, is considered In order to satisfy the "mirror image" requirement, a legitimate acceptance must be identical to the offer throughout every detail Breach of DOC Carl and Direct's arrangement are not, once again, a unilateral agreement Carl offered to buy the CDs set from Direct for $75, but Direct later notified him that the price had been put incorrectly and that the correct price would be $135 Direct has rejected Carl's $75 offer and has counteroffered him with a fresh offer to sell As a result, pursuant to the "mirror image" rule, Direct's response will be considered illegitimate The contract is therefore nullified, and Carl is entitled to a refund from Direct Conclusion As a result of Direct's rejection and counter-offer to Carl's offer, Carl is entitled to a refund Carl (plaintiff) v Opera (Defendant) Issue The legal issue is that whether the plaintiff collect his $120 payment after cancelling the defendant's order when the defendant had already shipped the set of CDs DOC This issue's legal laws are offer and acceptance rules like a requestion to treat (cited above in the case between Sam v Outback Burgers) Furthermore, the acceptance rule stated that acceptance occurs when the acceptance letter is correctly sent, rather than when it is received Breach of DOC According to the case, the advertise is not a type of request to handle to be considered as a onesided offer and Carl is the one who offers On the th of June 2021 at 1am Carl immediately bought the CDs set which is $120 from Opera, but about 30 minutes later, he found a cheaper CDs set from another sited immediately sent an email to cancel the order at Opera Five minutes later, he received an email from Opera confirming that his order was in processing In this case, the acceptance was communicated before the revocation due to Carl read the acceptance email on the 7th of June while Opera read the revocation - second email of Carl on th of June As a result, Carl's revocation is unvalid Thereby, Opera does not need to reimburse Carl in the amount of $120 Conclusion In conclusion, Carl did retract his offer to Opera Consequently, because their acceptance was notified late, Opera does not need to reimbursement from Carl  ... *Tortious liability Ned (plaintiff) v Sara Quick (defendant) Legal Issues Whether Ned can successfully sue Quick for her violation of the “Tort of negligence” (crucial issue) and the defendant. .. actions had a direct impact on Ned As a result, the exam was passed, and Quick owed Ned the DOC Breach of Duty of Care The case Blake v Galloway2 and Hackshaw v Shaw3 are applied There are four... defendant Quick breached a DOC to the plaintiff (Ned) Duty of Care In the case of the “NT”1, it is reasonable to expect that Quick in the throng would be damaging to others Furthermore, Quick actions