Law Situations - Assignment Example

ASSESSMENT B Q1a The law broadly defined defamatory statement as, “one which tends to lower a person in the estimation of others. In a classic phrase, it is frequently an imputation which tends to bring the plaintiff into hatred, contempt, or ridicule, although it need not be this extreme”.1 The tort of defamation must be in publication which in this case the term includes spoken words, written words, cartoons and the like. In the case at bar, the statement made by Basil Johnson who is a member of the Parliament before the House of Representatives is not a defamatory statement. The speech is a fair and true report made in good faith during an official proceedings made by a public officer in the performance of his function. The television broadcaster on the other hand, merely replayed the extract of the speech made by Basil Johnson without any further comment. Such publication in the national television does not constitute defamatory statement because it is a matter contained in a public document and made in the course of proceedings of public concern. As defined in section 28 of the Defamation Act 2005, a public document means any report or paper published by a parliamentary body, or a record of votes, debates or other proceedings relating to a parliamentary body published by or under the authority of the body or any law.2 However, the Gold Coast Clarion made the headline with an imputation which tends to lower Mr. Xavier Skuse in the estimation of others. Therefore, an action made by Mr. Xavier Skuse against the Gold Coast Clarion may succeed but not against Basil Johnson and the national television broadcaster. Q1b There is no valid contract between Arthur and Brian. In order for a contract to validly exist there must be a meeting of the minds or a concurrence of intentions between the parties, which in a contract are the offeror and the offeree. The three elements of contract must be present for it to be enforceable: (1) consideration; (2) agreement – there must be an offer and acceptance made by the parties; and (3) the intention to create legal relations. An offer must be sufficiently definite where once accepted binds legally the offeror otherwise it is unlikely an offer at all. Furthermore, an offer must be communicated to the offeree and can be revoked any time prior to acceptance unless an option has been granted. In Dickinson v Dodds it was held that it is not necessary that the communication be communicated by the offeror only – as long as the offeree learns of it from some reasonably reliable source.3 An offer can be impliedly terminated by the offeree through a counter offer which terminates the original offer as decided in the case of Hyde v Wrench.4 In addition, acceptance of the offer must be complete and unqualified, and must conform to the requirements of the offeror. In the case at bar, Brian made a counter offer of $900 which under the law does not constitute a complete acceptance and the fact that he was told by Christine that the latter agreed to buy Arthur’s laptop at $950 is a termination of the offer made to Brian. Thus, Brian can no longer buy the laptop at $950 since there already exist a valid contract between Arthur and Christine. Q2 As a general rule, contract is interpreted as a whole. When a meaning must be attributed to a particular word, the courts look first to the interpretation clause which is often included in important commercial transactions, and if this does not clarify the matter, they will give the word its ordinary meaning that is by which it is generally understood. Mostly now contracts are in writing but there are also oral and partly written contracts. Parol evidence rule generally applies in written contracts which in this case by virtue of the assurances of Gordon he established a collateral warranty as to the suitability of the property for grape growing and without such promise the purchase would not have been made.5 In the said contract the three basic elements must be present as in other contracts and the consideration is the making of the main contract. Clearly there was a misrepresentation on the part of Gordon and the Grainger’s is not without legal recourse. Section 52 (1) of the Trade Practices Act provides that a corporation shall not in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.6 Under this particular law it is not necessary whether the offending action is inside or outside the contract or whether there was a contract at all. It is also not necessary to have collateral contracts or even if it is wholly in writing, it is a conduct of inquiry if there was a misrepresentation or deceptive act and grant remedy to the aggrieved party. Therefore, the Grainger’s has a right of action against Gordon under the Trade Practices Act and parol evidence rule. Q3 The claim of Jake is not tenable. For an action of negligence to prosper the elements must be present, these are: (1) duty of care; (2) breach of the duty; (3) which was caused by the defendant; and (4) was not too remote. The duty of care must be owed by the defendant to the plaintiff and the harm or loss can be reasonably foreseen through the former’s actions. Another factor which might be considered in the determination of duty of care is the proximity of the plaintiff and the defendant. In the case of Agar v Hyde it was held that sport stands in an entirely different position from the workplace, the roads, the marketplace, and other areas to which people must venture. When adults voluntarily participate in sport they may be assumed to know the rules and to have an appreciation of the risk of the game.7 The principle of a latin maxim volenti non fit injuria or voluntary assumption of risk is that a person cannot complain of a risk when they have consented to it. Provided further in section 19 (1) of the Civil Liability Act 2003 that a person is not liable in negligence for harm suffered by another person as a result of the materialization of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm.8 Hence, in the case at bar, Jake who had played indoor cricket for two years cannot fault Active Life Pty Ltd for the harm he suffered, and there is no duty of care on the part of the respondent. Q4a In the following case, the bike hire company could be held liable for the injury suffered by H despite the stipulations in the hiring agreement stating therein that the hiring company shall not be liable for any injury suffered by the riders of the machines hired. Section 13 (5) of the Civil Liability Act 2003 provides that to remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.9 The tipping of the paddle of the bike was not an obvious risk; it is the responsibility of the company to make sure that there bike is working properly to avoid injury to the one using it. There being a direct physical relationship between H and the bike hire company the latter exercises a duty of care towards H and as such must take reasonable care to avoid acts and omissions which can be reasonably foreseen as to likely injure another person.10 Having failed to exercise the reasonable care which is expected from a reasonably prudent person a breach of the duty of care is committed. Thus, H’s claim for damages against the company is tenable. Q4b In business or commercial aspect the parties intend their agreement to be enforceable however; the consideration may be executed and need not be adequate. Generally, when there is an existing contractual obligation a party cannot pay less than what was agreed. However, in the case of Foakes v Beer it was upheld that where a second contract was entered into by the parties to which the debtor pays a lesser amount such contract is valid and the creditor cannot file an action to claim the balance because the original duty is extinguished by the subsequent agreement.11 The doctrine of laissez faire refused to inquire whether the consideration received by a party is adequate it is sufficient that there is a consideration regardless of which party received a fair deal. Section 25 of the Limitation of Actions Act 1974 provides that an action shall not be brought nor a distress made to recover arrears of rent or damages in respect thereof after the expiration of six years from the date on which the arrears became due.12 Provided further in section 35 (4) of the said Act, a payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but a payment of interest shall be treated as a payment in respect of the principal debt.13 Therefore, based on the foregoing contentions Sony can avoid paying the arrears. References: Agar v Hyde [2000] HCA 41; 201 CLR 552; 173 ALR 665; 74 ALJR 1219 (3 August 2000) Dickinson v Dodds (1876) 2 Ch D 463 Donaghue v. Stevenson [1932] AC 562 at 580 Foakes v Beer (1884) 9 App Cas 605 Hyde v Wrench [1840] 49 ER 132 J.J. Savage & Sons Pty Ltd v Blakeney (1970) 119 CLR 435 Turner, C (latest edition) Australian Commercial Law, Chapter 28 Defamation Act 2005, Section 28 Civil Liability Act 2003, Section 13 (5) Civil Liability Act 2003, Section 19 (1) Limitation of Actions Act 1974, Section 25 Limitation of Actions Act 1974, Section 35 (4) Trade Practices Act 1974, Section 52 (1) Read More