The Civil Liability Bill 2003 - Assignment Example

Law Assignment By Name Course Instructor Institution City/State Date Question 1. The Commonwealth parliament is usually tasked with the responsibility of governing the states and this includes the formulation of relevant legislations. This is attributed to the fact that the Commonwealth parliament is at a better position to address the problems facing a particular state compared to the state parliament. Therefore, in an effort to ensure that the individuals in any given state are empowered and safeguarded the Commonwealth enact legislation that affect the society. In relation to this statements, the Commonwealth parliament had all the rights to enact the Fair Work (Retail Employees) Act of 2013 as stipulated under Section 51 of the Constitution.. The Act tries to safeguard employees from exploitation by the employers by being forced to work on public holiday. Under section 1 of the Commonwealth Constitution states that the legislative powers of the Commonwealth shall be vested in federal government. Therefore, by virtue of this section then it is quite clear that parliament is empowered to make legislations regarding the state as stated under Section 51. Section 51(1) of the constitution allows the commonwealth parliament to formulate laws regarding trade and commerce. Additionally, section 107 stipulates that state parliament have the power to enact residual laws. Residual laws refer to areas not covered under section 51 of the Constitution. Therefore, in relation to the Fair Work (Retail Employees) Act 2013, it is quite clear that the power to enact such a law squarely lies with the Commonwealth parliament. This is attributed to the fact that the Act deals with matters relating to trade and commerce. Additionally, section 109 of the Commonwealth constitution stipulates that the state laws must be consistent with the constitution or risk being declared invalid. Therefore, as the State of Queensland undertakes it duties in enforcing the Retail Trading Act 2012, it has to ensure that it is consistent to the constitution. The Commonwealth Act is the supreme law in Australia which means that any law is subjected to it. This is to say that any law should conform to it or otherwise be deemed to be invalid. This is further clarified under section 109 which stipulates that should a state law contradict with the Commonwealth Act then the Commonwealth hall prevail. This attributed to the fact that, constitutions are regarded as the laws of the citizens and therefore they should be afforded the respect that come with them. This is to say that any state law should be formulated in a way that it confines itself within the scope of the constitution. Failure to do so then such a state law risks being declared invalid as stipulated under Section 109 of the constitution. Therefore, going by section 109 it is quite clear that the Commonwealth is well above all other state laws. However, it should be noted that this section refers to the clause of the state law that contradicts the Commonwealth. Therefore, all other provisions of the state law shall be in operation and bear the same. This means that only inconstant section of the state law shall be declared as invalid. However, the determination as to the legality and inconsistency of a section in a state law in relation to the Commonwealth Act lies with the High Court of Australia. This is attributed to the fact that, the High Court is the highest court in Australia. Additionally, the High Court under Section 75 of the constitution has been handed the powers to interpret and review the constitution. Therefore, the determination of legality and inconsistency of a section in the State laws squarely lies with the High Court of Australia. Question 2. Exclusion clauses play a big role in relation to claims regarding breach of contract by either party to the contract. This is attributed to the purpose of which exclusion clauses play in any given contract (McGrath, 2006, p. 140). Therefore, in relation to this statement, exclusion clauses refers to a clause inserted into a contract whose purpose is to exclude or limit the liability of a party in relation to breach of a contract. As a result of the effects of limitation clauses most business organisation have had them included in contracts relating to the organisations. In addition to this, exclusion clauses prevent parties that suffer damages from accessing compensation (McKendrick, 2014, p. 403). However, exclusion clause are dependent on various rules in order for them to have a legal binding to the contract. These rules help in ensuring that parties do not misuse exclusion clauses as a way of avoiding liability in cases of breach of contract (McKendrick, 2012, p. 408). The first rule stipulates that exclusion clauses would be incorporated into the contract. This is to say that exclusion clauses should be present in the contract prior to the signing of the contract. Therefore, this eliminates instances whereby individuals insert exclusion clauses after the signing of contracts. The second rule stipulate that the clause should not contain any ambiguity meaning that it should be clear. This is also means that the clause should be specific to a type of liability (Lawson 2011, p. 50). Therefore, this eliminates instances whereby parties use an exclusion clause to fight off all claims of liability. It should be noted that the insertion of an exclusion not prohibited by any legal legislation. This is to say that where a law prohibits insertion of exclusion clauses in specific contracts, then such exclusion clauses shall not have any application in excluding liability. Therefore, exclusion clause exists as a way of limiting liability upon observation of the set out rules that govern the validity of exclusion clauses (McKendrick, 2012, p. 410). b). The question as to whether there was a breach of contract depends on whether the parties to the contract contravened any of the set out agreements. According to Rowan (2012, p. 50), a breach of contract arises whereby a party to a contract fails to honour his part as stipulated by the contract. Additionally, a breach of contract arises whereby action of a party to a breach have no justification. Therefore, the fact that K-Lark did not perform his part of the contract and had no justifications for his actions amounted to a breach of contract. In addition to this, a breach of contract will suffice if it is proven that damages were suffered as a result of the breach. Roderick was required to pay a fine for late delivery of the parcel that K-Lark was required to deliver. This is a clear indication that damage was suffered as a result of K-Lark’s actions. Therefore, going by the above facts and the case study it is quite clear that there was a breach of contract (Rowan 2012, p. 60), Therefore, in relation to the events relating to the breach of contract on the part of K-Lark, Roderick is obliged to seek redress for the damage as a result of the breach of contract. The redress or remedy as is normally termed tries to reinstate an individual back to the position he was prior to the breach of the contract (2012, p. 140), Therefore, in relation to Roderick’s case there are certain remedies available for them in relation to the breach of the contract. The most suitable remedy for Roderick are damages, which are monetary compensations for the damage resulting from a breach of contract. This is attributed to the fact that Roderick suffered monetary loss. Therefore, the most suitable form of remedy for him would be one that involves monetary compensation which in this case is damages (Cohen & McKendrick 2005, p. 220) c). Misrepresentation refers a statement that is false in nature and made by one party to a contract in an effort to induce the other party to the contract. This statement should be made in a manner that would suggest that the party making the statement was aware of the impossibilities of the statement. Additionally, the party making the statement must have had intention of the statement being relied upon by the other party to the contract. This means that the other party entered into the contract relying on the statement only to find out that it was not true (Whincup 2006, p. 320). However, it is important to determine the type of misrepresentation suffered. This is because the type of misrepresentation suffered greatly determines the type of remedy that can be offered by the court. Therefore, misrepresentation could either be fraudulent or innocent. A fraudulent misrepresentation arises whereby a statement was made knowingly and recklessly without any belief in it being true, innocent misrepresentation on the other hand refers to a statement that was made by an individual believing it to be true (Whincup 2006, p. 322). Therefore, in relation to Roderick’s case, it is quite possible for Roderick to sue K-Lark for innocent misrepresentation. This is attributed to the fact that Roderick entered into the contract on the assumption that K-lark would fulfil his obligation. However, this is not how it turned out to be since the parcel was delivered a day later. As a result of late delivery Roderick suffered financial losses in an attempt to offer compensation for late delivery of the parcel. This was demonstrated in the case of Horsfall vs. Thomas [1862] 1 H&C 90, whereby the ruling judge stated that a statement is only a misrepresentation if it was relied on upon entering into a contract. This ruling demonstrates that individuals will in most instances enter into contract as a result of the statements made by the other party to the contract. Additionally, the manner in which a statement was made greatly determines whether it amounts to misrepresentation. If a statement was made with assertion then it would amount to a misrepresentation. This is because maker of the statement had all the intentions in ensuring that the statement was relied upon. Therefore, emphasis should be placed on statements made by parties to a contract. This is in return offer protection to parties that relied in such statement prior to accepting the contract. Therefore, due to the fact that Roderick relied on the statements made by K-Lark in relation to delivery of the parcel, then K-Lark statements amount to misrepresentation (Whincup 2006, p. 326). As a result of relying on the statements made by K-lark and suffering financial loss, Roderick is suitable for a remedy. However, the remedy of choice depends on the nature of the harm or injury on the person relying on the statement. This is to say that individuals should be weary of the kind of remedy they seek in relation to an offence of misrepresentation (Whincup 2006, p. 350). This is attributed to the fact that it is more likely for an individual to lose in an attempt to seek a remedy if that remedy does not correlate to the injury. Additionally the type of remedy sought should be sufficient enough to reinstate an individual back to the previous position. Therefore, in relation to Roderick the most suitable remedy id damages. This is attributed to the fact that, damages constitutes monetary compensation. Additionally, the harm suffered by Roderick was financial in nature. Therefore, by seeking damages it becomes quite possible to reinstate Roderick back to his financial position before the breach of contract took place (Andrews 2011, p. 265) Question 3. The question as to whether an agreement existed between BBC and the supply of beef could prove quite challenging. This is attributed to the fact that, the contract for the supply of beef was conducted through the agents of BBC. Therefore, this implies that any contract entered into by the agent is deemed to have been made by BBC. However, in this case the contract between BBC and the supply of beef was void (Kleinberger 2008, p. 105) Under the law of agency, an agent is deemed to be acting on behalf of the principal and as a result any contract eneterd into by the agent binds the principal. This is attributed to the fact that an agent obtains powers to act on behalf of the principal through various ways such as implied authority or express authority. These powers allow the agent to enter into transactions on behalf of the principal. However, in conducting transactions an agent is required to act within the scope of authorisation. Failure to do a principal may be absolved of any damage that may arise to a third party when conducting the transaction. Therefore, it is important to note that the scope of authority is derived from the duties of the agent and the duties of the principal. This is to say that an agent is required to abide to his duties towards his principal. This is attributed to the fact that an agent is at all times required to act for the benefit of the principal (Munday 2010, p. 130) However, in the case of BBC and the supply of beef the contract became void the point at which the agent decide to use a shipping company he had interest in. the duties of an agent stipulate that an agent should at all times transact for the benefit of the principal. The duties go further to state that an agent should act in a manner to solely to benefit himself or a third party. This translates to the fact that an agent should not have conflicting interest in relation to transactions involving the principal (Munday 2010, p. 165) Therefore, when the agent decided to use a shipping company that he is the director and a major shareholder was a breach of his duties. This is attributed to the fact that by using the shipping company the agent benefited as is evident with the cash reward for negotiation the contract. Therefore, by the virtue of the conflicting interests the contract between BBC and the supply of beef becomes void. This in return absolves BBC from any claims that UIti may present in future in relation to the supply of beef. Therefore, a breach of duty on the part of an agent is ground enough to vitiate any contract that may have been entered into by the agent on behalf of the principal. Therefore, based on the fact at hand, the contract between BBC and Uiti is void. This means that should UIti go fourth with the claim on breach of warranty, then the claim should only touch on the agent as there was no contract with BBC. b). Under the laws governing agency, agents are deemed as an extension of the principal, meaning that activities of the agents are deemed as activities of the principal. This is to say that any transaction entered into by any given agent on behalf of the principal legally binds the principal. This means that principal are vicariously liable for any damage that arises as a result of the actions of the agent. However, this principle is dependent on the fact that the agent undertakes the actions within the scope of his duty (Kleinberger 2008, p. 120). Therefore, in relation to BBC and Henry the contract for the supply of beef was in itself a valid contract. This means that BBC would be liable for any damages that could have arisen from the contract. However, the contract became voidable the moment Henry decided to a shipping company he had interest in. This is based on the fact that Henry was a director and a major shareholder of the company. As a result a conflict of interest arises and could greatly hinder the ability of BBC to realise substantial profits. Therefore, in relation to BBC and Henry the best thing is to terminate the agency contract due to the breach of contract. According to Munday (2010, p. 200) a principal may revoke an agency contract if it is felt that the agent contravened the agency contract. Therefore, based on the fact at hand it is quite clear that Henry contravened the agency contract. This is attributed to the fact Henry went against his duties towards the principal by creating a conflict of interest. The conflict of interest arises as a result of Henry engaging a shipping company, whereby he is the director, to undertake the supply of beef. Therefore, BBC have every right to revoke the agency contract that existed between themselves and henry. Additionally, Henry should bear the full liability in relation to law suit that Uiti plans to table in court as a result of a breach of warranty. This is attributed to the fact that, by engaging in a shipping company that he had interest in was a breach of duty and thus outside the scope of his duty. Therefore, as a result the principle of vicarious liability does not bear any application. This means that BBC will not bear any liability for the damages that resulted into the breach of warranty. Question 4. Over the years the common law stipulated that professionals and employers would be held liable for injuries on their employees or individuals working under them. This is aimed at ensuring that individuals are afforded high quality of care as they undertake. This means that individuals working in hazardous conditions were required to have protective gears at all-time failure to which the employer would be held liable. Additionally, common law tried to offer remedy to individuals who suffered injuries upon the guidance of professionals. The term professionals refers to individual that possess special skills or education in a particular field. Therefore, due to the nature of their skills professionals are normally approached for opinions on how to tackle various problems that face a society or an individual. However, there are instances whereby individuals acting under the guidance of professional have been victims of injuries. This is in return raises the question as to what extent is a professional liable for injuries on an individual acting on their guidance. Under the common law, should an individual acting upon the guidance of a professional be injured, then the professional was deemed liable for the damages. However, this caused rift as professionals stipulated that their opinions might not be a hundred percent. Therefore, this I meant that it was possible for individuals to suffer injuries even under the guidance of a professional. Additionally, professionals state that opinions may vary from one professional to the other. This is attributed to the fact that professionals normally fall under various school of thoughts. This means that what one professional deems to be right may not be so for another professional in a different school of thought. However, there are a times whereby professionals may agree on certain factors despite being members of different school of thought. However, such instances will relate to basic fact in the said field of practice. Therefore, the Civil Liability Bill 2003 (Qld) recognises the fact that professional may not at all times be right and that their opinions are dependent on their schools of thoughts. This is achieved by section 22 of the Act which stipulates the standard of care at which professionals should observe. Under this section professionals are absolved of any wrong doing if it is deemed that the professional acted in a manner that was accepted at that time. This is to say that should a professional issues advice that was deemed correct at that time and was accepted by other professionals, then such a professional is not liable should they succumb to injuries. Additionally, the Act further stipulates that the opinion of a professional need not be accepted universally to exclude the professional from liability. This is to say that a professional can have an independent opinion on an issue and should not be prosecuted for his opinion as long as it was made with good intention. This statement allows professionals to venture out and develop new ways to tackle problems. Therefore, the Civil Liability Bill 2003 (Qld) has come a long way in ensuring that professionals are well protected, thus allowing them to conduct their activities with no fear. For instance doctors have over the years been the most affected professional when it comes to issues of damages resulting from their opinion. However, the Act tries to offer protection to such professional when faced with legal suits pertaining to the opinion. Therefore, when a doctor issues out an opinion regarding a disease and the patient relying on the statement suffers injuries then such a doctor would not be held liable. This position would be reached at that if the doctor demonstrates to the court that the opinion was widely accepted in the medical field. Additionally, if the doctor demonstrates that the opinion was made to the best ability of the doctor then the doctor should not be held liable. Therefore, this Act allow doctors to conduct their duties without the fear of prosecution. Therefore, in line with this illustration it is quite clear that professionals have been afforded adequate protection under the Act. Additionally, at the same time, the Act reinforces the principles governing common law in relation to professionals. References Andrews, N 2011, Contract Law, Cambridge, Cambridge University Press. Cohen, N & McKendrick, E 2005, Comparative Remedies for Breach of Contract, Oxford, Hart Publishing. Kleinberger, DS 2008, Agency, Partnerships, and LLCs: Examples and Explanations, Alphen aan den Rijn, Aspen Publishers Online. Lawson, RG 2011, Exclusion Clauses and Unfair Contract Terms, London, Sweet & Maxwell. McGrath, J 2006, EXCLUDING EXCLUSIONS IN CONTRACT LAW: JUDICIAL RELUCTANCE TO ENFORCE EXCLUSION CLAUSES, Cork Online Law Review, vol. 13, pp. 137-148. McKendrick, E 2014, Contract Law: Text, Cases, and Materials, Oxford, Oxford University Press. McKendrick, E 2012, Contract Law: Text, Cases, and Materials, Oxford, Oxford University Press. Rowan, S 2012, Remedies for Breach of Contract: A Comparative Analysis of the Protection of Performance, Oxford, Oxford University Press. Whincup, MH 2006, Contract Law and Practice: The English System with Scottish, Commonwealth, and Continental Comparisons, Alphen aan den Rijn, Kluwer Law International. Read More