Whether the Ferry Crew Have Breached Their Duty of Care - Assignment Example

Law Issue Student’s Name Course: Tutor’s Name Date: Q1. Issue: whether the ferry crew have breached their duty of care Law: The answer to whether the ferry crew owed their passengers a duty of care is contained in the good neighbourliness concept identified by Lord Atkins in Donoghue v. Stevenson. Here, it was established that the manufacturer of goods or the provider of services must take care to avoid engaging in a conduct, or processes that may injure the consumer of his goods or products. Application: By failing to enforce the requirement that passengers remain seated until the ferry stops moving, the injured party can argue that the crew neglected their duty of care by allowing passengers to move around in a moving ferry. The injured party can further argue that were it not for the crew’s negligence and careless attitude towards enforcing the sitting-down requirements, the accident which occurred could have been avoided since the mildly drank passenger would still be in his seat by the time the ferry collision occurred. The injured party can also argue that the possibility of injuries arising from standing passengers, especially if the ferry was involved in an accident was foreseeable and could therefore been avoided if the crew took reasonable care to ensure that all passengers were seated whenever the ferry was moving. Overall, the injured party can argue that the crew did not take reasonable care in engaging in acts or omissions likely to injure the passengers. Conclusion: The injured party can seek compensatory damages for the physical suffering and medical expenses occasioned by the injuries, and material compensation for the damaged mobile phone and/or any inconveniences occasioned by the damaged phone. Q2. Issue: whether a recommendation to a friend, who one has no business relationships with amounts to a duty of care. Law: A person advising another owes them a duty of care, if the advice is related to business and therefore of a serious nature; if they are aware that the person receiving the advice will rely on it; and if it is reasonable that the person receiving the advice to rely on it under prevailing circumstances. A precedent was set in Hedler Byme & Co Ltd v Heller & Partners Ltd [1964] AC 465 where it was established that even unprofessional advisors owe the recipient of such advice duty of care. Application: The Serenity Restaurant Manager (SRM) new that Philip was seeking a business investment opportunity and that he was new in the hotel business and therefore likely to rely on his advice. These facts indicate that SRM owes Philip duty of care. However, SRM could argue that he had no way had no way of knowing that the Marchetti restaurant would not be profitable one year on. If anything, the fact that the restaurant was full of customers at the time of viewing should be perceived enough grounds for his observations that Phillip is “almost guaranteed” of profitability. Secondly, SRM could argue that Philips way of handling the business was related to its failure seeing that the business had deteriorated since the takeover. Conclusion: This case can go either ways; SRM could have a duty of care owing to the fact that he knew Philip intended to rely on his advice to make a hotel-purchase decision. However, SRM can argue that, there is no legal justification as to why Philip did not diligently investigate the viability of the hotel business before making the purchase. Q3. Issue: Is the Serenity Restaurant Manager (SRM) legally obliged to pay Darla –one of the cooks, a $50.00 bonus for working her full shift, even though she had been asked to leave work two hours early, a decision that was reverted due to the busy nature of the hotel at that time? Law: a consideration is the price of acquiring another person’s promise (Clarke, 2010). Performance of legal obligation is not subject to consideration as indicated in Stilk v. Myrick [1809] EWHC KB J58 Application: the promise by SRM to pay Darla $50.00 constitutes a consideration, which makes the agreement between the two to take up a simple contract form. Notably, money was to be paid and based on this, Darla was to provide services for a specific period of time and this makes the simple contract valid and enforceable. Since Darla met her end of the bargain, SRM hence have a legal obligation to pay the $50.00 promise. However, SRM may argue that Darla prior contract with the restaurant to work until 11 was still holding and hence her bonus payments were not legally justified. The fact that there was a change in circumstances (i.e. the restaurant was busy at 9.00 when Darla was supposed to leave) means that even without the bonus offer , Darla was legally obliged to carry on with her duties until 11.00. Conclusion: Darla may have provided consideration for SRM’s promise, and this means that SRM is legally obliged to pay Darla the $50.00 bonus. Her stay until 11.00 can be interpreted as an acceptance of the bonus offer by SRM which formed the basis of her extended work hours. Q4. Issue: Is misrepresentation a cause to void an agreement? Law: the aggrieved person can avoid the agreement on misrepresentation grounds where: The assertion by the employee was either fraudulent or material; and The aggrieved party relied to the assertion, and this left him at a disadvantage (Oxford University Press, 2012) Application: By claiming that she had incurred unexpected medical expenses and was hence unable to repay $1,000 borrowed, Stacy misrepresented the facts hence making her employer to believe that she was genuine in her claims that she was sick. With the overheard conversation proving otherwise, the aggrieved party can argue that Stacy intended to defraud him by using falsehoods to induce a bargain on amount borrowed, while in reality she had used the difference between her borrowed and repaid amounts to purchase an iPod. The aggrieved party can further argue the misrepresentation which alluded that the use of money for medical purposes made him to consider waving the $200 that Stacy could not pay up by the agreed time. The aggrieved party can further argue that purchasing a luxury item (i.e. iPod) on the other hand does not qualify as a ground for which, his business can consider waving $200 for an employee. Conclusion: the aggrieved party can petition the court for a rescission of the earlier agreement of $800 as the full and final payment, in which case Stacy may be required to pay the aggrieved party $200 more in order to restore the status quo between the two parties prior to the agreement. Q5. Issue: are clauses that restraint trading activity enforceable? Law: In law, all trading restraints are void and unenforceable unless proven to be reasonable. This means that that the burden of reasonableness is on the restraining party, and must have time, extent (activities) and location limits. Additionally, such restraints must protect legitimate interests as indicated in Hitech Contracting Limited v Lynn [2001]. Application: The restraining clause in Serenity Restaurant has met the reasonableness criteria in the time and location criteria by stating that an employee cannot work for any restaurant in the West End area within one year. By specifically mentioning the West End area, the restraining trade agreement has met the location’s limit criteria, while the one year period limits the time in which the employee cannot seek work within the mentioned area. However, it has failed to meet the reasonable criteria in the extent criteria by stating that employees “will not work in any capacity”. In this case, Xander, the employee in question, would probably argue that the extent criteria is too broadly defined and is tantamount to denying him a means to earn a living using his skills or knowledge. Conclusion: Serenity restaurant may be unable to enforce the restraining trade agreement based on the wide definition of the extent criteria. However, of Xander is working in the same capacity as a cook in his new job posting, Serenity Restaurant may have a bargaining chip in the law by arguing that Xander is likely to transfer the unique expertise and skills gained from making unique dishes in his former place of work to his new job. Q6. Issue: Has Australite Ltd breached the implied guarantees under the Australian Consumer Law (ACL) into the contracts for the sale of goods? Law: The Australian Consumer Law (ACL) offers protection to consumers by prohibiting unscrupulous conduct, deceptive conduct, and other forms of illicit activities practiced by businesses. Under s. 51, s. 52, and s. 53, the supplier given the right to sell the products/goods, something that should guarantee the consumer “undisturbed possession of the goods” (Brennan, 2011, p. 13). Further, s. 53 stated that “the goods are free from any undisclosed security” (Brennan, 2011, p.13). Application: Despite the fact that Australite Ltd –the supplier- in this case did not know that the car it sold to Mary had been used as security for a loan, it is apparent that it did not conduct due diligence to ensure that Mary, the consumer would have the guarantees stipulated in ACL. By failing to investigate the title transfer of the car, Australite had acted negligently and hence breached Mary’s guarantees to possess the car without being disturbed by other parties claiming ownership of the same. Additionally, the company failed to ascertain whether the car had undisclosed securities attached to it before selling it to Mary. Conclusion: Mary may petition the court requiring Australite to provide her with an equivalent car; or pay her for the equivalent of the car. The court will consider whether Mary could have acquired the car had she known of the loan debt associated with it. In this case under ACL s. 259(3), s. 260, and s. 263, Australite would most likely be obliged by the court to either refund Mary with the monies she had paid for the car acquisition, or replace the car in question with another one. References Brennan, T 2011, The Australian consumer law 2010, viewed 14 June 2012, Clarke, J 2010, ‘Consideration’, Australian Contract Law, viewed 14 June, 2012, Donoghue v Stevenson [1932] AC 562 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 Hitech Contracting Limited v Lynn [2001] viewed 14 June 2012, http://www.ecruiting.com.au/express/hitechvlynn180601.htm. Oxford University Press 2012, ‘Selected contract law terms’, Q&A Series, viewed 14 June 2012, < http://www.oup.com/uk/orc/bin/qanda/books/03contract/terms/> Stilk v. Myrick [1809] EWHC KB J58 Read More