Lance against the Local Council of Parramatta - Assignment Example

Name: Course: Instructor: Date: Introduction to Business Law: Case study Question 1 : Lance Versus Parramatta Local Council In the preamble of this case, Lance, an experienced rider and regular user of the road junction in mention, didn’t expect any barrier or whatsoever on Macquarie Avenue. An experienced rider he was, Lance knew very well that entries and exists into and out of road junctions are controlled by traffic lights or actions of the traffic police. In the case of minor roads, alleys and avenues, the state law on the use of the road demands that one ascertains the existence of any other road users before and gives priority of passage the user closest to the junction before proceeding to enter the same junction. As per this requirement, Lance actually looked left and right and ascertained that the junction was clear before he proceeded onto Macquarie Avenue. The case against the Local Council of Parramatta, for which Lance should sue for damages is the fact that a chain had be put across without any warning, notification or whatsoever to both new and old road users. Under law of torts, negligence is explained as failure by an individual or state to exercise the utmost care that any reasonably prudent person would exercise under similar circumstances. (Beaty, 2007). The law of tort therefore affirms suing for damages in the event that negligence by an individual results in harm to an individual or damage to personal or state property, even though such actions of negligence might not have been intentional. In the case of Lance versus the local council of Parramatta, although the chain might have been put across to collect levies for road maintenance, check and ensure minimum speed limit or for any other reason, the local council did not provide sufficient awareness to the road users. Chains across road and avenues is not the normal condition of roads and in the event that one is put across any road, all the road users, both new and old, must be sufficiently informed whenever they approach the point. This is the case with police mounted road blocks, bumps, road works or any other activity that may alter or inconvenience the normal flow of traffic on the road. The Local council of Parramatta therefore neglected this requirement and as a result, Lance was severely hurt. The law of torts also provides public nuisance as legal framework for establishment of suits. Under the scope of law of torts, public nuisance covers a large scope of minor crimes whose occurrence may threaten the health, morals, safety, comfort, convenience, or welfare of a community. (Jones, 2013). Violators are therefore subject to punishment by a criminal sentence, a fine, or both. In other cases, a defendant may subsequently also be required to remove the nuisance or to pay the costs of removal. The chain put across the road therefore meets the threshold of a public nuisance, and so it is. The tort of public nuisance therefore establishes legal suits for willful obstruction of public passages as well as statutory provisions permitting the abatement of a public passage obstruction in which possible circumstances under which civil actions for damages due to unlawful obstruction of public passages may be possible. Lance and Cadella are therefore at liberty to cite interpretation and provisions of the tort of public nuisance to raise further charges against the local council of Parramatta for intentional blockage of public passages and paths. It is not practical to establish the speed at which Lance was riding. However, from the description of the nature of injuries sustained and the damage caused on his bicycle, lance must have been riding at a high speed, perhaps higher than the legal speed when entering or exiting a road junction. If he could have riding at a lower speed, he could have perhaps noticed the chain across the road and braked before collision. However, in the absence of the chain across the road, Lance could have rode off past the scene of accident without any injury or damage to his bicycle. Vicarious liability in law is referred to in a situation where an individual or state is held responsible for omissions of another person. (Korman, 1987) In this case therefore, the Lance and Cadella should cite vicarious liability as their defense against the Local council of Parramatta for the actions of the employees of the local council who put the chain across the road without prior warning and reminder to road users. This can be argued in the context that the local council might easily find way to exonerate itself from the legal suit by suggesting that it was the fault of the employees to have failed to erect an awareness poster or sign board at the scene of the accident. Provided the employees were working under the instructions and authority of the Local Council of Parramatta, vicarious liability is admissible as a legal suit for damages. In an attempt to defend itself, Smith Auto may argue that Andrew was aware of the terms and conditions on the invoice as well as the contents in the notice on the wall Finally, to further justify that Lance and Cadella should sue the local council of Parramatta for damages is the contract law. According to the definition in law, a contract or agreement is a legally binding document that has a lawful object voluntarily entered by two or more parties, each of whom intends to establish one or more legally acceptable obligations between them. (Holmes, 2014). All the roads within Parramatta local council are maintained by the local authority. Any individual or party that intends to carry out any modifications on such roads by way of changing the initial course, introduction of extra signs or carry out maintenance services must therefore be contracted by the local council of Parramatta. The interpretation of contract law in this legal suit as I intended by Lance and Cadella is to establish whether the contract involved erection of awareness signs at the point of placement of the chain. In the case that the scope of the contract doesn’t entail erection of such awareness signs, then the legal suit by Lance and Cadella against the local council of Parramatta will be admissible. Should there be the requirements within the contract to erect such structures, then Lance and Cadella will also be required to file a legal suit for damages against whoever was contracted to put the chins across the roads. In conclusion, Lance and Cadella should sue the Local council of Parramatta for a number of damages as it will be interpreted and admitted under the common law. The above illustrations clearly implies that Lance and Cadella have sufficient grounds to bring forward suit for damages against the Local Council of Parramatta for negligence as provided under the law of torts and for the council’s failure to oversee its contractual obligations. The interpretation of the afore mentioned clauses will eventually build and develop arguments in favor of Lance and Cadella since the damages caused by the accident to the complainant, Lance and Cadella, will add up as further evidence of proof. Question 2: Andrew versus Smith’s Auto The preamble into this case reveals that Andrew is a regular customer at Smith’s Auto where he takes his car for repairs. However, in his quest for legal advice, his car was vandalized and the GPS gadget stolen while in the garage at Smith Auto. The car was subsequently involved in an accident while under the manager of Smith Auto. Apparently, the car had been driven out of the garage by the manager. The only admissible facts in this suit are that Andrew had signed an invoice which exonerates Smith Auto from any liabilities or whatsoever on any vehicle within Smith Auto’s repair yard. The invoice, which is therefore the binding agreement between the two parties, is subject to interpretation by various clauses of law. For the purpose of advising Andrew, two facts are established; the GPS gadget was stolen while the car was at in Smith Auto’s yard and that when the accident occurred, the car hand been driven out of the yard by the manager. Basing argument on law of torts and common law, Andrew is justified to sue Smith Auto for damages. According to the law of contract, the information contained in the invoice only binds for vehicles within Smith Auto yard. Any car driven out of the yard automatically goes outside this scope. The binding agreement in this context is the invoice to which Andrew appended his signature. However, according to public law, an initially binding contract can be declared voidable and hence unenforceable if it appears to be valid and in fact has all the necessary elements to render it enforceable, but contains certain amount of flaws which could end up causing either of the parties or both parties to void contract. (Eiseberg, 1991). On the basis of this allowance and interpretation of public law, the invoice is insufficient defense for Smith Auto. While it may be argued that by appending his signature on the invoice Andrew agreed to exonerate Smith Auto from any responsibilities arising from theft or damage of the car, the fact of the matter is the car was tampered while under care of Auto Smith. As a result therefore, a contradistinction to void clause is admissible to make the agreement (Invoice) unenforceable and thereby allow Andrew to file a legal suit against Smith Auto. Once it is established beyond any reasonable doubt that it was the responsibility of Smith Auto to provide security for his yard and hence its contents, then Auto Smith subsequently bears the liability of damage on the vehicle. Andrew should also base his argument on vicarious liability to sue Smith Auto for damages on his car. Vicarious liability is cited in this case to establish the relationship between the manager and Smith Auto as well as the conditions under which the accident occurred and therefore ascertain the admissibility of submissions based on his clause in common law. (Schwartz, 1987). It has been established that the car was actually driven out by the manager of Smith Auto; hence an employee of Smith Auto and therefore covered under vicarious liability. Similarly, although he went to a meeting, it is on record that the manager was test-driving the vehicle to confirm that it had actually been repaired. The manager therefore, within the context of Smith Auto, was acting within his mandate since employees are allowed to test and ascertain repairs on vehicles. The points being raised here are that the manager is an employee of Smith Auto and he was subsequently acting in his mandate. That said and explained, Smith Auto is therefore according to clauses of vicarious liability is liable for the atrocities committed by its employer in the course of executing his mandate. The nature of presentation of information by the management of Smith Auto raises legal concern. Andrew for instance, is under law, allowed to file prove of deception against Smith Auto. It is evident that Andrew is a regular customer and has signed several invoies whenever he takes his car for repair at Smith Auto. According to him therefore, the invoice serves as a committal document to pay for the services rendered. At the instance that he signed the invoice in mention for this case, he was committing himself to pay for the services as surcharged. Similarly, the awareness sign on the wall isn’t accessible to all clients except those that might have a keen interest and therefore take their time to survey around the yard. The sign is on white paper (A4) with Black writing, next to it are numerous advertisements for products sold at Smith’s auto, hence making it unnoticeable. Under proof of deceit in common law, Smith Auto is sued with attempt to use inappropriate means to relay information to its clients especially where there is reasonably sufficient believe that serious compensation may be demanded as a result of disclosure of information to a client. (Gillies, 2004).The management at Smith Auto intentionally put the paper sign in a congested place, not because they intend to pass over the message contained thereby to the customer, but to cite the same as evidence should anything arise against the management. Similarly, the invoice is designed in such a manner that besides serving as a financial document, it is also expected to act as a proof of ownership of liability by the client. These two functions are totally distinct and should thus be separated into two documents. By citing proof of deception, Andrew is justified to sue Smith Auto of deceitfully trying to shelve any liabilities on the car, including physical tampering and theft, while at the custody of Smith Auto. This argument is sufficient enough to be substantiated and therefore file charges against Smith Auto. Professional indemnity may subsequently be cited as a backup argument in this case since insufficient information was accorded to the client (Andrew) by the service provider. ` Andrew is therefore advised that there exists sufficient ground onto which he can build and develop his legal suit against Smith Auto to seek compensation and other damages. Both the conditions and circumstances under which the accident occurred as well as the theft of the GPS gadget are subject to interpretation by law and in this case, the admissible evidences against Smith Auto are valid enough to sustain a legal suit. Andrew should therefore initiate legal proceedings on the basis of the above explained facts. References (2009). Asset tracing & recovery: the FraudNet World Compendium. Berlin, Schmidt. BEATTY, J. F., & SAMUELSON, S. S. (2007). Introduction to business law. Mason, OH, Thomson/West. EISENBERG, M. A. (1991). The Nature of the common law. Harvard University Press GILLIES, P. (2004). Business law. Sydney, Federation Press. GREAT BRITAIN. (2010). Simplification of criminal law: public nuisance and outraging public decency : a consultation paper. Norwich, Stationery Office. HOLMES, O. W., JR. (2014). The Common Law. Lanham, Start Publishing LLC. JONES, L. (2013). Introduction to business law. KORMAN, J., & PARIS, P. (1987). Public nuisance. New York, Golden Book. SCHWARTZ, V. E., KELLY, K., & PARTLETT, D. F. (2000). Prosser, Wade, and Schwartz's torts: cases and materials. New York, Foundation Press. Read More