Commercial Law - Assignment Example

Commercial Law Name Institution Course Lecturer Date Q1. Issues John fell from a cliff edge in a look point in the 3 Michelin star restaurants and broke his leg. He had to the restaurant together with his two other friends to celebrate the successful completion of their bachelor’s degree. The look point was scenic hilltop with a magnificent sight of the city. The look point had two meters fence to put a stop to people going to the cliff edge. Though the cliff was clearly visible there were no warning signs put there by the management of the restaurant. Had drunk a lot that night, John climbed over the fence and while at the edge of the cliff he lost balance and fell off. Having sustained injuries, John wants to sue the willow council for the breach of duty of care. Law According to the scenario it seems there is element of tort of negligence. For John to prove that the willow council was negligent he therefore has to prove all the elements of negligent. The law offers that a legal claim in negligence is valid if the defendant owed a duty of care to the plaintiff; there is a breach of duty by the defendant and there was damage suffered by the plaintiff as a result of breach of duty by the defendant. According to Donoghue v Stevenson 1932 AC 562 there is duty of care owed to the plaintiff by the defendant (Dobbs et al 2009). This is because there exist a relationship between the plaintiff and the defendant. The defendant is responsible for management of the look point scenic view where people come to enjoy the scenery and the plaintiff happens to be among them. Due to the defendant failure to meet the obligatory standard of care then there was a breach of duty of care. The plaintiff suffered damage as a result of breach of duty of care by the defendant and is therefore entitled by law to claim compensation. (Lunney & Oliphant 2013) Argument Negligence arises when there is a duty owed to the plaintiff by the defendant. In this case the law recognizes relationship between the plaintiff and the defendant. According to the law, if there exist a relationship, the defendant is required to offer duty of care to the plaintiff. Normally, it is determined whether the defendant is liable for duty of care if a reasonable person would find existence of duty of care at a fastidious incident ( Schafer & Müller-Langer 2009). It is at such a moment that the defendant is responsible for the duty of care. Willow council, the defendant, are responsible for managing the look point at the cliff. Therefore, the Willow council owes duty of care to the person who visits the look point. The willow council is to put adequate measure to ensure that the persons visiting the scene are safe. According to Wyong Shire Council v Shirt (1980) 146 CLR 40, clear warning signs are imperative to caution people of foreseeable danger. Whenever the defendant breaches the duty of care that is owed to the plaintiff, the defendant is thereby liable for negligence. Due to the defendant failure to meet the obligatory standard of care then there is a breach of duty of care. When the defendant does not succeed in exercising reasonable care to the plaintiff then there is always a breach of duty. In this case the defendant, willow council, breached the duty of care to the persons visiting the look point. Apart from putting up a fence at the look point, they should have placed warning signs along informing people of the no go zone. The law only compensates damages which have already happened. Damages occur when the defendant fails to provide duty of care to the plaintiff. The damages usually happen in form of physical injury to the plaintiff. In this case John suffered a broken leg. Duty of care is provided to those affected directly by what someone does. One must take reasonable care to stay away from omissions which when foreseen would cause harm to the neighbor according to Donoghue v Stevenson 1932 AC 562 (Schwartz & Rowe 2010). Duty of care is determined by three aspects which are foreseeability, vulnerability and policy considerations. Foreseeability is when a reasonable person foresees the actions of defendant would result to damages. When the damage is foreseeable a question of whether there was vulnerable relationship arises according to Jaensch v. Coffey (1984). Then there are three considerations: whether the defendant was in control of situation, whether plaintiff was dependent on defendant and whether defendant was in a position to shield the plaintiff. Lack of warning sign contributed to the plaintiff climbing over the fence and moving to the edge of the cliff. Apart from putting up a fence at the look point, they should have placed warning signs along informing people of the no go zone (Stewart & Stuhmcke 2009). Breach of duty occurs when a defendant fails to fulfill the duty of care to the plaintiff. The defendant fails to reasonably exercise duty of care when the jeopardy is significant, when the defendant falls short of risk prevention by failing to put up safety measures and if the risk was foreseeable (Deakin et al 2012).  The court considers the seriousness of penalty and probability of risk when determining how a reasonable person would have reacted to foreseeable risk. Also, the court takes into account weight of taking preventative measures and the social efficacy of doings that resulted the damage. Putting warning signs would be a preventative measure that would prevent foreseeable damage. Failure to warn people of the potential hazards is a breach of duty of care and results in civil liability. Damage is a result of breach of duty of care by the defendant. There ought to be a linkage between the damage suffered and the defendant breach of duty of care. Conclusion In support of his claim, John would insist that Willow council was responsible of warning people of the potential hazards posed by going beyond the fence. In putting up the fence the willow council would have placed warning signs along the wall to provide adequate warning especially to susceptible people. Therefore, the willow council had breached the duty of care by not putting warning signs along the fence. In this claim of negligence it is likely that John will not succeed in establishing such a breach. This is because the risk must be reasonable and real according to Wyong Shire Council v Shirt (1980) 146 CLR 40. It is likely that the court will not find breach of duty of care by the willow council despite the accident being foreseeable. This is because the willow council had put a fence to prevent foreseeable injuries and that was reasonable care according to Romeo v Conservation Commission (NT) (1998) 192 CLR 431. Issues The second case is after the purchase of the champagne bottle by the three friends. The bottle had a metal cap and stopper instead of the normal cork which is held by wire. This prompted Mason to shake the bottle having opened the cap with no wine coming out. The shaking of the bottle resulted to catapulting of the cork stopper which hit Mason in the nose. Mason wishes to sue the wine company for failure to put a warning about this kind of cap. This is despite the same cap being used by the French wineries thus very common. Mason had been used to the cork that is usually held by a wire. He believes the manufacture owed customers like him duty of care to inform of the new cap and it safety measures. Law I believe Mason will succeed in proving that the wine company was negligent. This is because the wine company ought to fulfill a duty of care to the customers. According to Grant v Australian Knitting Mills (1936) the wine company had a responsibility to inform its customers about the change of the normal cork held by wire to the metal cork with a stopper. The wine company also should be in a position to outline the functioning of the new cork and its safety measures while using it. I therefore have confidence in Mason succeeding in his claim since it is so evident of the breach of duty by the defendant. The defendant had failed to fulfill the required standard of care thereby had a civil liability. Furthermore, the plaintiff had suffered injury as result of change of the cork. Mason is therefore allowed to claim compensation from the wine company for the personal injury he suffered due to safety defect in the cork (Van Eeden 2009). Argument For Mason to succeed in his claim for compensation from the wine company, he has to establish that indeed the wine company was negligent. He has to establish that the wine company owed a duty of care to its customers. According to Donoghue v Stevenson 1932 AC 562, the company should have informed the users about the change of cork and hence issue advice about the safe use of the new cork. Mason is required to establish that the wine company had breached the duty of care (Bradbrook et al 2011). Aware of the change of cork in their wines, the company would have taken an initiative to inform the consumers about the change according to Rogers v Whitaker. However, the company never informed the users therefore they have a civil liability of breaching the duty of care. Mason is also required to establish that the breach of duty by the wine company caused him injury. Lack of advice about the safety use of the new cork resulted to Mason suffering blood nose for three weeks. Having suffered the injury due to the wine company breach of duty, Mason is legally entitled for compensation from the company. The company did not adhere to the Australian Consumer Law. The Australian Consumer Law demands inclusion of safety warning to inform the users about the product which may cause injury. In addition, the manufactures are also supposed to issue an information standard which provides advice about the safe use of the product or a safety warning (Paterson 2009). If there is any foreseeable injury that the product may have on the users then a safety warning should be issued. For the safety of consumers issuance of information standards is very imperative. Failure to comply with provision of information standard makes the manufacture to be liable for compensating injuries caused to people using the product (Latimer 2012).  Conclusion In this case it therefore right to conclude that the wine company owed a duty of care to its customers with regard to change of cork. The company should have informed the users about the change of cork and hence issue advice about the safe use of the new cork. This is in accordance with the Australian Consumer Law which implies that the manufacturers to issue an information standard which provides advice about the safe use of the product or a safety warning. Therefore Mason should sue the wine company for compensation due to the injury caused to him their breach of duty. Reference Schwartz, V E, & Rowe, E F 2010 Comparative negligence LexisNexis. Lunney, M, & Oliphant, K 2013 Tort law: text and materials Oxford University Press.]C Dobbs, D. B., Hayden, P. T., & Bublick, E. M. (2009). Torts and Compensation, Personal Accountability and Social Responsibility for Injury (American Casebook) Author: Dan B. D.at 5Schäfer, H. B., & Müller-Langer, F. (2009). Strict liability versus negligence. Tort law and economics, 1, 1. Stewart, P., & Stuhmcke, A. (2009). Australian principles of tort law. .Deakin, S. F., Johnston, A., & Markesinis, B. (2012). Markesinis and Deakin's Tort Law. Oxford University Press. Cane, P., & Atiyah, P. (2013). Atiyah's accidents, compensation and the law. Cambridge University Press. Van Eeden, E. P. (2009). A guide to the Consumer Protection Act. LexisNexis. Bradbrook, A. J., MacCallum, S. V., Moore, A. P., & Grattan, S. (2011).Australian Real Property Law. Law book. Latimer, P. (2012). Australian Business Law 2012. CCH Australia Limited. Paterson, J. (2009). Australian Unfair Contract Terms Law: The Rise of Substantive Unfairness as a Ground for Review of Standard Form Consumer Contracts, The. Melb. UL Rev., 33, 934. Read More