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BULAW5914 Commercial Law
Assignment Question
Semester 2, 2019
Instructions to students:
Purpose:
This significant task requires forward planning and adequate time for research, reading and
eflecting. It comprises 35% of your assessment in this subject.
You should begin researching early to gather information and establish a plan of approach as
soon as possible.
The purpose of the assignment is to enable you to achieve outcomes in knowledge, skill and
application across the designated learning outcomes mentioned in the BULAW5914 Course
Description.
It is also to enable you to:
Learn how to independently research particular aspects of the law;
Reflect on and consider particular legal issues;
Demonstrate your understanding of relevant laws;
Develop your knowledge about the subject area of your research;
Demonstrate the ability to investigate, synthesise and analyse;
Communicate your findings in a formal piece of work and meet a deadline;
Enhance your written communication skills; and
Apply your legal skills.
Assignment word length:
The total length of your assignment must be no more than 2,500 words. Do not include the
eferences or bibliography in your word count.
Due date:
Submit via Turnitin on Moodle by 4pm, Thursday of Week 10.
Assignment assessment criteria:
You will be assessed on the extent to which you have:
Answered the set question(s);
Been able to identify, set out and discuss relevant legal issues;
Justified your position by reference to use of appropriate legal sources, particularly cases
and legislation where appropriate;
Analysed, argued or discussed as required by the task questions; and
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Engaged in legal research and made use of relevant secondary legal sources, in
particular a number of legal texts, internet sites and academic (peer reviewed) journal
articles and books.
Scenario:
Joe and Kamela got ma
ied earlier this year. After they returned from their honeymoon, they
moved into Joe’s house.
Joe knew that the house was very cold during winter and that Kamela does not like the cold.
So, prior to the move, Joe went to a discount department store, Paymart, and asked the
salesperson, Steve, to help him select a suitable heater. Steve showed Joe a number of
heaters, both electric and gas. Steve recommended the gas heater the Hades 5000 as suitable
for an area of the size of Joe’s open plan kitchen, dining and lounge room. Steve also pointed
out that the unit is energy efficient and has a mechanism for keeping the air in the room at a
constant temperature.
Joe purchased a Hades 5000 and another unit, the Hades 2000, which he placed in the
edroom of his house. The Hades 5000 cost $4,000 and the Hades 2000 cost $3000.
Both units were installed by Fred Kemper, a gas fitter who is a sole trader. Fred was
ecommended by Steve.
Joe and Kamela were at home one day when they heard a strange fizzing sound coming from
the loungeroom. They came running in to find sparks flying from the heater. The curtains and
soft furnishings quickly ignited. Kamela and Joe ran out the front door as the house exploded.
Both Joe and Kamela were injured by flying de
is.
A subsequent investigation found that the fault was more likely to be in the heater than the
installation.
To add insult to injury, Joe’s gas bill for the period when the heaters were operational is very
high.
The Hades 5000 is manufactured by a Russian firm, Defektny located about 50 kms from
Moscow. The units are imported into Australia and distributed by the company Hot Stuff Pty
Ltd.
Questions (35 marks):
Answer both questions:
1. Advise Joe and Kamela what rights they may have to sue in the tort of negligence.
Please refer to case law principles and statutory provisions in your answer. (15 marks)
2. Advise Joe and Kamela if they can sue under the Australian Consumer Law. If so, who
would they sue, and on what basis? Please refer to specific statutory provisions of the
ACL in your answer. (20 marks)
PowerPoint Presentation
Last Week: The Australian Legal System Part 2
The hierarchy of courts and the court system
The doctrine of precedent
The separation of powers doctrine
Statutory interpretation
Torts, negligence and product liability
Commercial Law BULAW5914
Faculty of Business
Revision
What are the different approaches to the interpretation of legislation, and how do they differ? (1-490)
Revision
Different approaches to the interpretation of legislation (1-490)
Literal approach- States that a court should give a strict interpretation to the intention of Parliament as set out in the words actually used in the statute
Golden rule- Qualifies the literal rule by allowing the courts to disregard the literal, or actual, meaning of the words used in the statute if they would produce an absurd result or a result inconsistent with the rest of the statute
Mischief rule- Entitles a judge to identify the problem which existed before the legislation was enacted and to interpret the legislation in such a way as to suppress the mischief or advance the remedy in the legislation
Purposive approach- Requires the interpretation of the words in the legislation to help the words achieve their purpose
Objectives
Outline the nature of tort liability
2. Explain the tort of negligence at common law, and understand the statutory reforms to negligence in 2002
3. Explain the role of the ACL
Objectives
Outline the nature of tort liability
2. Explain the tort of negligence at common law, and understand the statutory reforms to negligence in 2002
3. Explain the role of the ACL
What is a tort?
¶4-010 – ¶4-150
A civil wrong (other than a
each of contract) (i.e. A wrong in non-criminal law)
Aimed at protecting individuals against infringements of their own personal rights
These infringements may be against another person’s property, reputation or person
The law of torts:
Provides rules of conduct that regulate how members of society interact
Affords remedies (usually monetary) if the rules are
eached & damage is suffered (e.g. Someone is injured by the act/ omission of another)
Examples of torts ¶4-020
Negligence- Where one person
eaches a duty owed to another and causes damage
Defamation- Defamation law protects a person’s reputation from being unjustly injured.
Nuisance- Harming another’s use or enjoyment of land.
Deceit- Fraudulent misrepresentation causing loss.
Trespass to land- Unauthorised entry on private land.
Trespass to the person
Battery- Physical conduct without consent
Assault- The threat of direct force to anothe
False imprisonment- Deprivation of another’s liberty without lawful cause or excuse
Trespass to goods
Conversion- Wrongfully dealing with the property of anothe
Detinue- Wrongfully detaining the property of anothe
Examples of torts
Torts vs. contract
Contractual obligations- Determined by the terms of the contract
Tortious obligations- Fixed by the law i
espective of any contract
The same act may be both a tort & a
each of contract
E.g./ A contract with a health care provider may include a contractual term that it takes reasonable care & involve a duty in the tort of negligence to take reasonable care
¶4-020
Torts vs. crimes ¶4-050
Tort-
The action is commenced by the victim
Objective- Compensation
Crime-
The action is commenced by the Crown/ DPP
Objective- Dete
ence & punishment
The same act may be both a tort & a crime
E.g./ If A punches B in the nose, A commits the crime of assault & the tort of battery
Objectives
Outline the nature of tort liability
2. Explain the tort of negligence at common law, and understand the statutory reforms to negligence in 2002
3. Explain the role of the ACL
Suing for negligence (4-070)
Three elements to be established-
1. Duty of care was owed by D to P
2. There was a
each of the duty of care
3. P suffered damage as a result of the
each
Establishing a duty of care (4-080)
Duty of care- A duty owed by one person to another because of the relationship between them which might cause injury
Donoughue v Stevenson XXXXXXXXXXdiscussed in week 2)
“Who then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my conduct that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question.”
“You must take reasonable care to avoid acts or omissions which you reasonably foresee would be likely to injure your neighbour”
“Salient features” of a duty of care
Reasonable foreseeability: Foreseeability alone does not give rise to a duty of care
Knowledge of the D: If D knows or should know that his/her act or omission may cause loss or impairment to the legal rights of another and that person is not in the position to protect his/her own interests
Vulnerability of the P to harm from the D’s conduct
Breach of duty (4-100)
D has
eached their duty of care if they failed to do what a reasonable person would have done in the same circumstances
Standard of care is what the ordinary, reasonable & prudent person would do- Bolton v Stone (1951)
A cricket club did not fail to meet their standard of care when a pedestrian was hit by a cricket ball
A cricket ball had only cleared the fence about 6 – 10 times in the previous 30 years but no body had been hit
Civil Liability Acts now define the standard of care for personal injuries caused by negligence (see, for example, s48 Wrongs Act (Vic))
WRONGS ACT XXXXXXXXXXSECT 48
General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
(3) For the purposes of subsection (1)(b)—