Subject Code LAW2447

Subject Name Commercial Law

Location & Campus RMIT Vietnam, SGS

Class Group Number 10

Team Number 19

Teacher Name Mr. Ing Hoe Loh

Student Name - sID Nguyen Ngoc Bao Chau - s3878910

Luong Minh Anh - s3927404
Dang Duc Khoi - s3938049

Number of pages including cover 13 pages

Word count 4166

 LIST OF ACRONYMS

CN Contributory negligence

COP Cost of Precaution

DOC Duty of Care

LSOH Likely Seriousness of Harm

NT Neighbour Test

POH Probability of Harm

VL Vicarious liabilities

TON Tort of Negligence

SU Social Utility

SOC Standard of Care

SOE Scope of Employment

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 TABLE OF CONTENT

SCENARIO 1 4
1. Barry Young (Plaintiff) v Sarah Seeker (Defendant) (TON) 4
2. Barry Young (plaintiff) v Tim Jones (Defendant) (TON) 4
3. Barry Young (Plaintiff) v The Centre Town Council (Defendant) (VL) 5
SCENARIO 2 6
1. Jim Smitty (Plaintiff) v Bob Help (Defendant) 6
2. Jim Smitty (Plaintiff) v Joanna Health (Defendant) 6
4. Joanna Health (Plaintiff) v Peter Rich (Defendant) 8
5. Peter Rich (Plaintiff) v International Weights Limited (Defendant) 8
SCENARIO 3 9
1. Billy Local (Plaintiff) v Janet Whiz (Defendant) 9
2. July (Plaintiff) v Janet Whiz (Defendant) 9
3. Billy Local (Plaintiff) v The Great Lake Shopping Mall (Defendant) (VL) 10
4. July (Plaintiff) v Billy Local (Defendant) 10
SCENARIO 4 11
1. Issac (Plaintiff) v Trevan (Defendant) 11
2. Trevan v Olivia 12

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 SCENARIO 1
1. Barry Young (Plaintiff) v Sarah Seeker (Defendant) (TON)
The legal issue in this case is whether Sarah owed Young a DOC due to the unintentional
tort, or negligence caused by Sarah and what are the possible responses for her against the
court.

First, when the accident occurred, Sarah allegedly was the staff at the centre. Therefore,
Sarah is aware of that centre's facilities and conditions. Meanwhile, Young was considered
lawful guests. Hence, Sarah owed Young a DOC under an established relationship which is
Occupiers and Guests.

Secondly, determine whether Sarah breach a DOC by applying the four elements of SOC
followed by section 5B of Civil Liability Act1 (cited in the case between Jones v Young). The
POH in Sarah’s action is medium because hardly pulling Young’s leg out of the wall can
possibly also cause additional damage in spite of the injury would be worse if Sarah kept the
scene intacted. For Sarah’s deed, LSOH is considered medium and not high because her
action lessened the consequences of the fall of the fences on Young’s leg, the evidence was
shown by Dr. Draven that Young now can only walk with a limb due to his leg has been
under the fence too long. The COP is irrelevant because Sarah intentionally did that to save
Young and the longer Young stayed under the fence the more painful and severe it could
have been. Therefore no price should be paid to prevent Sarah from doing so and the damage,
in one way or another, is less serious than doing nothing to help. The SU factor is in fact can
help assist Sarah stepping away from breaching the DOC since she worked at the centre as a
volunteer, which was considered as a useful and humane behaviour for her to do. Her action
also came from the urge to save Young regardless the conviction may be opened to her.
Furthermore, under a reasonable man test, anyone in that case would do the same as Sarah
because it would be deeply wrong to ignore someone in pain. In conclude, the defendant did
not breach DOC.

2. Barry Young (plaintiff) v Tim Jones (Defendant) (TON)

The legal issue is whether Young can bring a TON claim against Jones for causing his leg
injury when the fence pieces fell and can defendant use the plaintiff's negligence as a
defense to lessen their responsibility.

First, the relationship between Jones and Young is not recognized in the categories of DOC.
Therefore, the NT must be applied2. Jones was the volunteer staff of the centre and he was a
person who put a fence in the centre without any asking for permission of council, which
could harm customers. While Young is a client and he is playing games in the centre so he is
directly affected by Jones’s conduct. The NT test is satisfied, thus Jones owed Young a DOC.

1 section 5B of Civil Liability Act

2 Donoghue v Stevenson (1932) AC 562

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Second, determining four elements of SOC to decide whether Jones breached the DOC 3. The
POH4 is medium to high because the piece of fence is nailed to the wall and put inside the
centre. For the LSOH5 is medium to high because a piece of fence that falls from the wall will
be scratched or lead to seriously injured. According to Latimer v AEC6, the COP is easy and
cheap that the defendant can make a large warning sign and obviously posted on the wall or
prohibit going near that place. Additionally, soundproof fences can block out the noise, but
the fence that Jones brought in the centre is just ordinary and broken, so it cannot help either.
There was no SU7. Overall, the defendant failed to meet SOC so he did breach DOC.

Defence
According to Ingram v Britten8, the pieces of fence fell from Young’s slammed into the wall
while playing catch. It is a conduct that should not be done while the entrance to the centre
has clearly stated 3 things not to do: “No rough play, no yelling, no running”. Thus, Jones can
claim to defend that the plaintiff's contributory negligence. Therefore, they were jointly
accountable for their negligence.
Overall, Jones can be successful in the lawsuit. However, Jones can lessen liability by
arguing that the plaintiff’s also contributory negligence.

3. Barry Young (Plaintiff) v The Centre Town Council (Defendant) (VL)

The legal issue is whether the Centre Town Council was subject to VL while Jones and Sarah
are Centre's employees, causing harm for Young. The SOE test will be utilised to resolve the
issue.

First, the Council's relationship with the other defendants (Jones and Sarah) comes within the
employer and employee obligation categories, where the employer is responsible for an
employee's negligent performance. Since the Council’s letter told the staff to keep all noise
minimised, Jones made the decision to nail the fences against the wall near the video gaming
systems to reduce loudness. Within the SOE9, Jones’s conduct is intended to fulfil the
Council's request and would have benefited the Centre in lessening the noise. Hence, the
legal responsibilities are imposed where the Council is liable for the actions of its employees.

In summary, Young can legally sue the Centre Town Council under the VL because Jones’s
conduct caused injury to Young.

3 Civil Liability Act 2002 (NSW)

4 Bolton v Stone (1951) AC 850
5 Paris v Stepney Borough Council (1951) AC 367
6 Latimer v AEC (1953) AC 643
7 Watt v Herfordshire County Council (1954) 1 WLR 835
8 Ingram v Britten (1994) QSC 144
9 Century Insurance v Northern Island Road Transport Board [1942] 72 Ll.L.Rep. 119

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 SCENARIO 2
1. Jim Smitty (Plaintiff) v Bob Help (Defendant)
The legal issue here is whether Smitty could sue Bob under TON because of Bob’s action
that caused harm to Smitty’s left ear and consider if that act violated any SOC.

First, Bob and Smitty's relationship is not falls under the DOC category. Therefore, the NT is
applied to decide whether Bob owed Smitty DOC. DOC is stated that the plaintiff has
evidence on the foreseeable risks which may occur must be warned by the defendant 10. Based
on that, Bob knew for sure what could have gone wrong with or without his action, he chose
to to be involved subsequently. Although Bob helped to lift the bar, he only did that with one
hand which can be seen as a careless act and can possibly cause injuries. Hence, the NT test
is justified meaning Bob owed Smitty DOC.

Given that a DOC exists in this case, the four elements of SOC is taken into account to
determine whether Bob breached a DOC. The POH is medium because Smitty is in bad
condition before Bob intervened, thus any effort performed by Bob, if not regarded by
professionals or authorities, can conceivably trigger further damage to Smitty. The LSOH is
probably high due to the fact that Bob only used one hand to lift the bar. The bar is initially
very heavy for Smitty to lift by hand, therefore being pounded by it falling on to the left ear is
immeasurable painful. The COP is low because Bob could have just ignored the incident, or
even if Bob still tried to help, he could have used both hands to ensure the bar would not fall.
Helping people is good behaviour for society after all, despite his negligence, Bob did that
because he wanted to help Smitty out. Hence the SU is legitimate. Lastly, under a reasonable
man test, any people with the capability to lift heavy objects would do the same as Bob to
save Smitty. Regardless, Bob breached a DOC because although he helped, he did it
carelessly and barely considered of the possible harm if he failed to lift the bar.

Defence
Applying Good Samaritan Laws11, Bob is encouraged to help Smitty out of struggle and
should be considered to lessen the liability. As this case happened in Melbourne, this state
also has a similar series of law which are shown in Part 8 of the Civil Liability Act 2002 12.
However, the problem prevents Bob from being assisted by the law if only the rescuer
purposefully inflicted injury or negligently caused it. As a result, Bob should provide
evidence that his action of using one hand to lift the bar is careful enough to decrease the
liability.

2. Jim Smitty (Plaintiff) v Joanna Health (Defendant)

The legal issues is whether Smitty can sue Health under TON due to let Smitty get injury
during training and whether Health can use any factors of evidence to limit liability?

10 Donoghue v Stevenson [1932] AC 562

11 Good Samaritan Laws
12 Part 8 of the Civil Liability Act 2002 (NSW)

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The relationship between Health and Smitty is not recognized in types of DOC. Hence, NT
should be applied. Health is the personal trainer and Smitty was the client that hire Health to
the gym for training his work-out program. Therefore, the movements that Health asks Smitty
to pratice have a direct effect on him. The NT13 satisfied, thus Health owed Smitty a DOC.
The four factor of SOC will used to consider defendant breach the DOC. First, weight
training is prone to injury, so the POH is medium to high. Second, the LSOH is medium to
high because the level of injuries can be from outside or lead to serious inside. As Smitty
case, he get both physical injury and mental health. Third, the COP is medium to high
because the personal trainer need medical certificate of the client to know the physical
condition to rank the exercise level according to the client’s ability rather than just listening
of customers . Lastly, there was no social utility. To conclude, defendant failed to meet SOC,
so he breach DOC.

Defence
Health did not know the weight on the bar marked incorrectly that 50 but marked 40pounds,
so he required plaintiff did 20 quick bench presses. However, Smitty also done 15 bench
presses (50pounds) illustrate that he can did more if the bar weight 40 pounds. Thus, Health’s
training method is still correct, just he did not know the wrong weight so the accident happen.
Hence, the defendant can reduce liability.
Overall, Health can be successful in lawsuit but Health can used the investigation the bar
marked incorrectly for lessen liability.

3. Jim Smitty (Plaintiff) v Peter Rich (Defendant)

The main legal issue is whether Smitty can sue Rich under the TON because the gym does
not ensure necessary safety standards that lead Smitty to get physical injury and mental
health. Besides, whether the defendant can be lessened the liability?

According to Rogers v Whitaker14, the relationship between Rich and Smitty is stated in
specified categories of DOC as ‘Occupier- Guest’. Rich was the owner of fitness gym and
Smitty was the client. Hence, Rich owed Smitty a DOC.

Next, the four factors of SOC to consider whether the defendant violated the SOC. The
POH15 is low to medium because this is the large gym in Melbourne so the facilities are high
quality. Besides, Smitty regular used the gym illustrate that he used to practice than beginner
and he also having a personal trainer watching out while practice so the LSOH 16 range from
mild to moderate. The COP17 is medium to high that the defendant need to maintenance and
inspection of machines on a weekly and monthly basis. It will easily detect errors in free
weight and prevent guest used. There was no SU 18. Overall, defendant required to meet SOC,
thus Rich not breach DOC.
13 Donoghue v Stevenson (1932) AC 562
14 Roger v Whitaker (1992) 175 CLR 479
15 Bolton v Stone (1951) AC 850
16 Paris v Stepney Borough Council (1951) AC 367
17 Latimer v AEC (1953) AC 643
18 Watt v Herfordshire County Council (1954) 1 WLR 835

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 4. Joanna Health (Plaintiff) v Peter Rich (Defendant)
The legal issues are whether Rich owed Health a DOC and whether Rich breached a DOC for
the weights labelling error that caused Health to arrange a training program that did not meet
Smitty's level and resulted in the incident.

First, despite Health being a personal trainer, she does not work at Fitness Forever, which
Rich owns. Therefore, during the accident time, we can consider her as a guest, proven by the
fact that Rich required Health to pay $20 each time she visits the gym for personal training
Smitty. This makes Rich and Health's relationship falls under the DOC category of occupiers
and guests, with Rich owed Health a DOC.

Second, resolving whether Rich violated a DOC towards Health by considering the elements
of SOC. The POH is minimal because Rich may not know the labelling error of the gym's
weights and specifically the fault will come from the manufacturer, International Weights
Limited. However, the LSOH is moderate because people will undoubtedly be injured if the
weights are too heavy and unfortunately if they collapse, the weights will fall over their
bodies. Additionally, the COP is irrelevant because Rich will not know when his customers
get collapsed or when the weights fall down and strike their customers' bodies. Since there is
no contribution to the wellbeing of the society, SU is nil. As a result, Rich did not fail to meet
the SOC thus he did not violate a DOC.

5. Peter Rich (Plaintiff) v International Weights Limited (Defendant)

The legal issue is whether Rich can sue International Weights Limited (IWL ltd.) under VL
because the weights have been wrongly labelled which then led to the injury of Smitty.
Besides, what are the rights for lawyers to act as counsel for the firm to lessen the liability
will be discussed as well.

First, the relationship between Rich and the Weights company was established before Smitty
got injured under the Manufacturers and Consumers relationship. Therefore, International
Weights Limited owed Rich a DOC.

Secondly, the POH is medium to high because failure to show users how heavy the weights
are before lifting can lead to severe consequences. The LSOH is high as familydoctor’s
article noted that lifting too much weight might damage muscles and joints. Additionally, a
spinal condition could develop as a result. Even catastrophic heart artery ruptures can occur
from heavy lifting on occasion. The COP is low to medium because the firm can spend a
small expenditure to investigate and adjust the weights thoughtfully before selling. Since this
is a business activity and the firm gains profits from it, the SU is therefore from low to none.
Considering all the factors, IWL ltd. breached a DOC.

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 SCENARIO 3
1. Billy Local (Plaintiff) v Janet Whiz (Defendant)
The legal issue is whether Local can sue Whiz under TON due to the firework that Whiz
setup slammed to Local and make he got serious head injuries. Hence, whether the defendant
can use contributory neligence for lessened liability?

First, the relationship between Whiz and Local not recorgnized in categories of DOC, so it
must applied NT. Whiz is the staff of the mall and also responsible for lighting the fireworks.
Local’s house live nearest the Mall, he is stood beside Whiz while she setup the light.
Therefore, he directly affected by the Local’s foot hit the firework. The NT test is satisfied,
so Whiz owed Local a DOC.

Second, there are 4 factors of SOC can be used to access whether the defendant violated the
DOC. The POH is high because the strength of the abnormal wind can be dangerous when
setting off fireworks. Thus, it easily cause fire and explosion accidents. Besides, she also used
powerful fans to blow the smoke but it can make the strong winds blow smoke into areas
with spectator. The LSOH is high because the explosive power that caused wounds and burn
everywhere on body. The COP is medium, should block off the area to setup fireworks to
ensure safety and people stand nearby should wear eye protection. There were no SU contrast
firework smoke contains many small metal particles that lead to urban air pollution. To
conclude, defendant failed to meet SOC so she breach DOC.

Defence
According to Ingram v Britten, Whiz has placed a sign that people should 3 meters away
from the firework area, however, Local stand beside and screamed. Local’s conduct illustrate
that he just want to criticize Whiz so carelessness about his own safety. This is something a
careful person can hardly do while still standing next the fireworks that are about to be
explosion. Thus, Whiz can claim to defend the plaintiff’s contributory negligence for reduce
liability.
To sum up, Local can win this case but Whiz can use CN to lessen liability.

2. July (Plaintiff) v Janet Whiz (Defendant)

The legal issues are whether Whiz owed July a DOC by indirectly harming July by directly
harming Local with the material shot from the firework while July was standing next to Local
and whether Whiz breached a DOC toward the plaintiff's injury which was caused by her
firework.

First, the Whiz and July's relationship is not recognized under the category of DOC.
Therefore, the NT must be applied to determine whether the defendant owes the plaintiff a
DOC19. Whiz is the marketer at the Mall and the originator of the fireworks display in the
outdoor garden events every 5:00pm to generate community interest. Whiz is also in charge
of lighting the fireworks and ensuring that attendees were 3 metres away from the firing

19 Donoghue v Stevenson (1932) AC 562

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location. While for July, we can consider her as an attendee, who is standing next to Local
and participating at the Mall's event. The material from the ignited fireworks directly hit
Local's forehead, knocking him out, and Local hit July stand nearby. At the time of the
incident, it is fairly foreseeable that the defendant's actions, when her foot accidentally hit the
firework and fired at an unusual angle, could bring harm to persons standing close. However,
in this case, the plaintiff is not directly but indirectly injured by the defendant's actions. As
stated in Donoghue v Stevenson, the defendant owes a DOC only to those who are closely
and directly harmed by his/her behaviour, otherwise not.

In conclude, since only one element is satisfied the NT test, Whiz did not owe July a DOC
and did not violate a DOC.

3. Billy Local (Plaintiff) v The Great Lake Shopping Mall (Defendant) (VL)
The legal issue is whether the Great Lake Shopping Mall was under vicarious liabilities (VL)
while Whiz is the Mall's employee causing harm for Local. The SOE test will be utilized to
resolve the issue.

First, it must be demonstrated that the destructive behaviour occurred within the SOE while
employees were performing authorised responsibilities for the benefit of the employers 20. In
this case, Whiz is carrying out the tasks assigned to her, which include lighting the fireworks
in the Mall's outdoor garden and ensuring that everyone stays 3 metres away from the
firework display. Whiz's behaviour clearly benefits the Mall by generating community
interest. As a result, legal responsibilities are imposed.

In conclusion, the SOE test is satisfied. Local can legally sue the Great Lake Shopping Mall
under the VL because Whiz caused serious injuries to him.

4. July (Plaintiff) v Billy Local (Defendant)

The legal issue is whether Billy Local can be sued under tort law violation by July due to her
arm being injured because of Local’s contact after being knocked out by the fireworks.
What’s more, any potential defence raised in front of the court to reduce Local
responsibilities will also be discussed.

Firstly, July and Local’s relationship was not established until the accident occurred. Hence
the neighbour test is required to interpret. As can be seen from the context, July allegedly was
an attendee at the mall while Local came to confront Whiz about the flame towards his house.
Next, as the fireworks hit Local in the forehead, he subsequently fell into July and caused
additional damage. Therefore, the falling action from Local was definitely foreseeable to
create harm for anyone nearby. Moreover, it was Billy Local himself who made July’s arm
broken, which means the harm is directly related to the defendant and hence Local owed July
a DOC according to the statement in Donoghue v Stevenson21.

20 Century Insurance v Northern Island Road Transport Board [1942] 72 Ll.L.Rep. 119
21 Donoghue v Stevenson (1932) AC 562

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Secondly, having acknowledged a DOC Local owes for July, four elements of SOC are
considered to conclude any breach occurs. After being hit by the fireworks, Local could
hardly be aware of the surroundings and could easily stumble or fall into anyone or anything
nearby, thus the POH is high. The LSOH is also high because any contact with another
person from an awkward or dangerous angle can possibly initiate severe damage. The COP is
low to medium because if it had not been for Whiz’s careless step, neither July nor Local
would have been injured, a careful movement from Whiz or a calm mind from Local can
diminish the situation. There is no SU, since the fall of Local had no benefits for the society.
The reasonable man test is perhaps not usable in this case as Local had no choice or vision of
where he could land on.Hence Local breached DOC after evaluating the factors of SOC.

Defence
In Local’s defence, using an inevitable accident as an excuse to reduce the charges is one of
the optimal options. The principle in testing the truthfulness of an inevitable accident 22 stated
that a person who claims that an accident was unavoidable must demonstrate that the
outcome could not have been averted even with the utmost care and competence. Linking
with the case, it can be seen that, at the moment, Local was hit by the firework, he was
completely stunned and could barely manage to move in desired directions. To conclude, July
can still be considered to win the case but the responsibilities Local has to carry are lessened.

SCENARIO 4
1. Issac (Plaintiff) v Trevan (Defendant)
The legal issues are whether Isaac and Trevan have a valid contract and whether Isaac can
sue Trevan for violating the agreement to purchase the shorts.

The contract between 2 parties is determined and satisfied by three elements. First, based on
Smith v Hughes, a legitimate contract requires both parties to agree on an offer and an
acceptance. Isaac made an offer that fulfilled the three must-contain details 23: the subject
matter is a pair of shorts worn by the star player Robinho, the parties involved are Isaac and
Trevan, and the purchase price is $1000. Issac's offer is legally valid since Trevan (the
offeree) has been fully informed and communicated 24 via a letter he received on November
12th. Using Scammell and Nephew Ltd v Ouston25, Trevan's acceptance was apparent and
certainly communicated in the letter he posted on November 13th, 2018. Hence, the
agreement of an offer and acceptance from both sides was completed effectively. Second, all
simple contracts must include consideration26. The consideration elements (a pair of shorts
worn by the star player Robinho and $1000) and the legal connection between both parties
are identified. Based on this outcome, both parties reached a legally enforceable contract.

22 McIntosh v Bell
23 Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd - [2006] VSC 42
24 R v Clarke [1927] 40 CLR 227
25 Scammell and Nephew Ltd v Ouston [1941] 1 AC 251
26 Chappell & Co Ltd v Nestle Co

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Moving on to the next issue by identifying who breach the contract. After Trevan sent an
acceptance letter on November 13th, Trevan called Isaac on November 14th to cancel the
shorts purchasing offer and the acceptance letter he had mailed on the day before. However,
once the offeree has indeed accepted the offer, a legitimate contract exists, and any attempts
from the parties to withdraw the offer could entail a breaking of the contract 27. As a result,
Trevan breached the legally enforceable contract with Isaac by cancelling the agreement after
the official agreement was sent by letter on November 13th.

On the same day, Trevan called again and offered to buy Isaac's shorts. Later, on November
17th 2018, Issac received the acceptance letter from Trevan but rebuffed Trevan's most
current offer to purchase the shorts on the next day. Even though, the offeror can only reject
the offer before the offeree accepts it 28. Since Trevan breached the contract by cancelling the
offer, he can't revoke his cancellation to accept the offer once again. Therefore, in this
situation, Isaac did not breach the contract.

To conclude, Trevan and Isaac formed an enforceable contract, and Isaac has the right to sue
Trevan for violating their binding agreement by contract termination and cancellation.

2. Trevan v Olivia
The main issue is whether a legally enforceable contract between Trevan and Olivia and
wether Trevan can sue Olivia breaks the agreement. There are three elements that must be
satisfied to establish a legal contract between two parties.

First, an offer and an acceptance must be satisfied in Smith v Hughes to have a valid
agreement29. The offer clearly made in the three requirements 30 that the subject for offer is
shoes, the involved parties Trevan and Olivia, and the sales price is $2000. Besides, Trevan
did not have enough money so Olivia give time to think and contact her if he wants to buy
shoes, she also keep the shoes until November 30 2018. Hence, on November 13th 2018,
Olivia’s offer was successfully communicated to Trevan, there was a valid offer between
them, based on R v Clarke31.

The offeror can withdraw the offer before the offeree accepts it 32. Nevertheless, the
acceptance post from Trevan did not reach Olivia until 18th November 2018, the well
communication factor between offeror and offeree therefore is insufficient. Consequently,
Olivia had the rights to sell the shoes to whoever she wants as long as before 18th November
2018. Hence the way she sold the shoes, or in other words revoke the offer against Trevan did
not breach the contract.

27 Dickinson v Dodds [1876] 2 Ch D 463

28 Dickinson v Dodds [1876] 2 Ch D 463
29 Smith v Hughes [1871] LR 6 QB 597
30 Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd
31 R v Clarke [1927] 40 CLR 227
32 Dickinson v Dodds [1876] 2 Ch D 463

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In conclusion, the agreement between Trevan and Olivia was successfully reached. But,
Olivia refusing to sell shoes for Trevan as the original deal, Trevan also cannot sue Olivia for
breach of contract.

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