Course Code LAW2447

Course Name Commercial Law

Campus Saigon South Campus

Semester Semester 2 – 2021

Assignment Assignment 2 – Team Paper

Lecturer Dr. Son Tan Nguyen

Group Number Task 2 – Team 35

Pham Nhat Duong S3883259

Student Name & ID Nguyen Quynh Anh S3877740
Vo Quynh Nhu S3891702
Word count – excluding
tables, headlines & 3998
references list
Case 1 : Quick v Croll

The issue is whether Croll committed a Tort of Negligence against Quick when he asked her to ride the
scooters inside the store. The subordinate is whether Quick was part at fault for increasing the scooter’s
speed to impress the customer.

The relationship between Croll and Quick is recognized by the law as Employer–Employee.1
Specifically, Quick worked at Croll’s Mega Box Store which sells non-motorized bikes and scooters as a
part-time employee. Therefore, it can be concluded that Croll owed Quick a Duty of Care (DOC). The
Neighbor Test is not needed in this case.

The defendant is considered to have breached the DOC if he failed to meet the required Standard of Care
(SOC), which is determined using the four factors : the probability of harm, the likely seriousness of
harm, the cost of taking precaution and social utility. 2

The Probability of Harm in this case is medium, since Quick was riding in an area with product
shelves.3 Furthermore, she mentioned herself that scooters are harder to control compared to bicycles
since their brakes do not work as well as bikes. The Likely Seriousness of Harm is medium to high since
she was running near the shelfs with spray paint, proven by the injuries that the plaintiff herself received
when she hit it. 4 However, the Cost of Taking Precaution is rather easy to establish.5 The store owner
should have rules to not allow bicycles and scooters to be used inside the store. No Social Utility was
found in this case. 6 Croll has failed to meet the requirement of SOC and therefore has breached his DOC
to the plaintiff.

The injuries that the plaintiff suffered were reasonably foreseen. In conclusion, Quick can successfully
sue Croll under Tort of Negligence for breaching the DOC.

1
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18.
2
Civil (Wrongs) Act 2002 (ACT) pt 4.2 s 43
3
Bolton v Stone [1951] AC 850.
4
Paris v Stepney Borough Council [1951] AC 367.
5
Latimer v AEC Ltd [1953] AC 643.
6
Watt v Hertfordshire County Council (1954) 1 WLR 835.
Defence : Croll might argue for Contributory Negligence Defence against Quick as it was her idea of
having employees ride bikes around the store in the first place. 7 In addition to that, she also increased the
speed around the spray paint aisle to impress a group of customers, which led to her loss of control and
crash into the aisle. Quick had shown carelessness and her negligence contributed to the accident.
Therefore, the defence can be accepted and the liability is divided to both parties in reasonable
proportion.

Case 2 : Quick v Dr. Duy

The issue is whether Dr. Duy (defendant) owed Quick (plaintiff) a DOC and breached it by not informing
her about the risks of the operation which resulted in her blindness of both eyes. The subsidiary issue is
whether Quick was contributorily negligent for not asking about the possible risks.

The relationship between the defendant and the plaintiff falls within the established categories of DOC as
Doctors–Patients.8 Applied to this case, Duy was a doctor at Oakley hospital and Quick was his patient,
therefore, he owed Quick a DOC and the Neighbor Test is unnecessary.

The rule to determine whether the plaintiff has breached his DOC is similar to case 1. The Probability of
Harm in this case is extremely low, since there is only a 1:14000 chance of the risk occurring. 9
Furthermore, the Likely Seriousness of Harm is high since it can result in blindness in both eyes. 10
Despite the severity of the harm, the Cost of Taking Precaution is easy and inexpensive to establish.11 A
similar case, Rosenberg v Percival, accepted that had the patient been informed fully about the risks, she
would have not undergone the surgery.12 Applying to this case, if Quick was warned about the seriousness
of the relevant risk, she would have had a choice and might have rejected the operation in the first place.
No Social Utility of the defendant’s conduct was found in this case. 13 Therefore, it can be concluded that
Dr. Duy has failed to meet the required SOC and breached his DOC to Quick.

Finally, the plaintiff’s injuries were reasonably foreseen, hence, Quick can successfully sue Duy under
TON.

7
Ingram v Britten [1994] QSC 144.
8
Roger v Whitaker (1992) 175 CLR 479.
9
Bolton v Stone, above n 3.
10
Rosenberg v Percival [2001] HCA 18; 205 CLR 434; 75 ALJR 734 (5 April 2001) [77]
11
Latimer v AEC Ltd, above n 5.
12
Rosenberg v Percival, above n 10.
13
Watt v Hertfordshire County Council, above n 6.
Defence : Dr. Duy can try to reduce his liability by asking for a Contributory Negligence against Quick,
as she didn’t specifically ask about whether her left eye can be damaged. 14 However, she had expressed
considerable concern of the possible complications before the surgery, which required the doctor to give a
truthful answer in relation to the therapeutic privilege. 15 Hence, the defence is denied.

Case 3 : Quick v Hospital

The legal issue is whether Quick can sue the Oakleigh hospital under Vicarious Liability for the harm
caused to her by Dr. Duy.

The requirement to prove Oakleigh is vicariously liable is that the harmful act was performed under the
scope of employment, which means that the employer authorizes his employee to perform a beneficial
action for him.16 The requirement was met when Duy performed a harmful act under the employment of
Oakleigh hospital. Furthermore, the hospital acknowledged suspicious details in Duy’s job application
concerning his medical degree but proceeded to hire him due to a shortage of doctors, thus committing a
vicarious liability. No defence can be made in this situation.

In conclusion, Quick can successfully sue Oakleigh hospital under the vicarious liability.

Case 4 : Ned v Quick

The legal issue is whether Quick conducted a Tort of Negligence against Ned when she hit him with the
scooter, causing him to suffer a broken leg and $35,000 of operation fee.

The Neighbor Test is necessary since the relationship between the plaintiff and the defendant is not
recognized by the law.17 The test requires you to prove that the defendant’s conduct was reasonably
foreseen to be harmful and the plaintiff is closely and directly affected by that. The first requirement has
been satisfied. The latter is also met since there was a chance that Quick would hit Ned when riding the
scooter near him. The neighbor test is now satisfied and Quick owed Ned a DOC.

The rules to determine the defendant’s breach of DOC is similar to case 1. The Probability of Harm is
medium. The plaintiff acknowledged that the scooter’s brake doesn’t work as well as that of the bike,
hence making it easier to lose control and hit someone. That chance was increased when she speeded up
14
Ingram v Britten, above n 7.
15
Rosenberg v Percival, above n 10.
16
Century Insurance v Northern Island Road Transport Board [1942] 72 Ll.L.Rep. 119.
17
Nikolas James, Business Law, (Wiley Publishing, 4th edn, 2014) .
near Ned to impress his group. The Likely Seriousness of Harm is medium to high since she was
speeding while losing control, proven by the plaintiff’s broken leg. The Cost of Taking Precaution is
inexpensive and easy to establish as Quick can choose not to ride the scooter inside the store. No Social
Utility was found in the defendant’s action.18 Therefore, Quick had breached the DOC.

As mentioned above, the harm was reasonably foreseen, hence, Ned can sue Quick successfully under
TON for breaching the DOC she owed to him with no possible defence.

Case 5 : Ned v Croll

The legal issue is whether Ned can sue Croll under Vicarious Liability for the harm caused by Quick.

Firstly, Quick was an employee at Croll’s store. The requirement to prove Croll’s liability here is the
same with that of case 3, which was met when Quick committed the tort to Ned within the scope of
employment of Croll.19 To be specific, the store owner asked Quick to ride the scooter inside the store to
attract customer, which was beneficial to his store

In conclusion, Ned can successfully sue Croll under vicarious liability.

Case 6 : Ned v Croll

The legal issue is whether Croll owed a DOC to Ned and breached that duty when he failed to assure the
customer’s safety in his store.

Ned and Croll’s relationship in this case falls within the established categories of DOC as Occupier-
Guest since the accident happened in a store where Croll was the owner. According to Australian
Safeway Stores Pty Ltd v Zaluzna, it is the occupier’s responsibility to avoid foreseeable injuries to those
who come onto his premises.20 Therefore, Croll owed Ned a DOC.

The rules and application of the rules to determine whether Croll has breached his DOC and failed to
meet the required SOC is the same as those of case 5 (Quick v Ned). The Cost of Taking Precaution is
also simple and affordable since Croll can have rules that don’t allow people to ride bikes and scooters
inside the store.21 Hence, the DOC Croll owed to Ned was breached.

18
Above n 3, 4, 5, 6
19
Above n 16
20
Australian Safeway Stores Pty Ltd v Zaluzna [1987] 162 CLR 479.
21
Above n 5
Finally, since the injuries that the plaintiff suffered was reasonably foreseeable, it can be concluded that
Ned can successfully sue Croll for breaching the DOC and committing a TON against him. No further
defence can be made from the defendant.

Scenario 2

Case 1: Tung v Chu

The issue is whether or not Chu (defendant) had committed a Tort of Negligence against Tung (plaintiff)
when he swung from the bar lighting grid, causing physical harm to Tung.

The relationship between the two parties is not established by the law, but instead through the Neighbor
Test.22 Since Chu’s recklessness directly affected Tung’s well-being as occupiers in the same room, the
test is satisfied, proving Chu owed Tung a DOC.

We now discuss the rules to determine the defendant’s breach of DOC. The Probability of Harm is
moderately high given how the cable was only supported by hooks and could not sustain the weight of a
grown man. The Likely Seriousness of Harm is also high any grid, made of heavy metal, falling upon
anyone could cause serious physical harm. However, the Cost of Taking Precaution is easy as Chu
could have simply focused on doing his work. With no apparent Social Utility to the defendant’s actions
and reasonably foreseen harm, Tung can seek legal remedies for his injuries as the defendant clearly
breached his DOC with no possible defence.23

Case 2: Tung v The Black Rock Cafe

Tung can also sue the nightclub under the Tort of Negligence to decide whether they had breached the
DOC against him for the harm imposed by Chu.

There is an established DOC between Tung and the bar as Occupier-Guest as the accident took place in
the nightclub’s premises. The relevant rule is Australian Safeway Stores Pty Ltd v Zaluzna (as cited in the
case Ned v Croll) which means the nightclub owed Tung a DOC.24

To determine the defendant’s breach of DOC, the first two elements are similar to the analysis in Tung v
Chu. However, the Cost of Taking Precaution is medium as the nightclub probably has to hire people

22
Nikolas James, above n 17.
23
Above n 3, 4, 5, 6
24
Australian Safeway Stores Pty Ltd v Zaluzna, above n 23.
for securing the lighting grid or bar training to its workers, which takes moderate resources. There is no
apparent Social Utility in this case.25 As the harm was reasonably foreseen, I still find the nightclub to be
liable in breaching its DOC to Tung. Overall, Tung can sue the nightclub under TON with a moderate
success rate given the cost of taking precaution with no defence.

Case 3: Tung v The Black Rock Cafe

The issue is whether Tung (plaintiff) can sue the nightclub (defendant) under Vicarious Liability for his
injuries by Chu.

Similar to case 3 in Scenario 1, we found that the nightclub is vicariously liable as the imposed harm was
done under Chu’s scope of employment.26 As a bar of good reputation, aggressive vocational measures
for all the nightclub staff and better securing of the lighting grid should have been taken to prevent Chu’s
incident. Ryan v Ann was a case law regarding the nightclub’s accountability of their employee’s
behavior27. Applied to the case, Tung can sue the Nightclub under vicarious liability with stronger success
rate than last case.

Case 4: Binh v Chu

The issue is whether Binh (plaintiff) can sue Chu (defendant) under the Tort of Negligence for his
injuries.

Similar to Tung v Chu and Ned v Quick, there is no established DOC; however, the Neighbour Test is
satisfied.28 Chu's act of negligence also directly affected Binh who was in close proximity to the falling
lighting grid, proving Chu owed Binh a DOC.

We now examine the elements of possible breach of DOC which is quite similar to Tung v Chu. The only
differences were that the Probability of Harm and Likely Seriousness of Harm are both comparatively
lower than case 1 since Binh was not standing directly under the grid as Tung was 29. With reasonably
foreseeable harm, Binh can still seek legal remedies against Chu with no possible defence.

25
Above n 5, 6
26
Century Insurance v Northern Island Road Transport Board, above n 16.
27
Ryan v Ann St Holdings P/L [2006] QCA 217
28
Above n 17
29
Above n 3, 4
Case 5: Binh v The Black Rock Cafe

The legal issue is whether Binh (plaintiff) can sue the nightclub (defendant) under the Tort of Negligence
for his injuries.

With similar legal rules to Tung v The Black Rock Cafe, the nightclub owed Binh a DOC as Occupier-
Guest30. The two arguments of negligence: Probability of Harm and Likely Seriousness of Harm are
similar to Binh v Chu31. Next, the Cost of Taking Precautions and Social Utility are similar to case 332.
With reasonably foreseeable harm, Binh can seek legal remedies with no possible defence.

Case 6: Binh v The Black Rock Cafe

Binh can also sue the nightclub for their Vicarious Liability33 in his physical injuries.

With similar rules and arguments as case 3 (Tung v The Black Rock Cafe), I find that Binh can
successfully sue the Black Rock Cafe with no possible defence.

Case 7: Binh v Hospital

The issue is whether Binh (plaintiff) can sue the hospital (defendant) under the Tort of Negligence.

Similar to case 2, there is an established DOC of Occupier-Guest as the accident happened on the
hospital’s premises34.

To determine the defendant’s breach of DOC, the Probability of Harm is considered medium as the
floor was slippery from the rain. The Likely Seriousness of Harm is medium to high as serious fall
injuries like broken bones, concussions can happen with moderate chances. The Cost of Taking
Precaution is medium to high as the hospital would have to place signs or hire people for longer hours to
ensure the floor is mopped at all times which is unreasonable. Hence, there is Social Utility in not taking
precautions as the pathways in the hospital should be kept clear to avoid disruption for doctors and
patients35.

It is unlikely that Binh can successfully seek remedies for his injuries against the hospital.
30
Australian Safeway Stores Pty Ltd v Zaluzna, above n 23.
31
Above n 3,4
32
Above n 5, 6
33
Above n 16
34
Above n 23
35
Above n 3, 4, 5, 6
Defence: Similar to Quick v Croll, the hospital can make a case for themselves by arguing Binh is
Contributorily Negligent in his injuries36. Despite the heavy raining night, Binh still insisted on taking
the stairs to the garden at 6.30 which was earlier than the hospital timeframe for cleaning. He should have
been reasonable enough to choose a different occasion with sunny weather to visit the garden. Using the
relevant rules from Jackson v McDonald’s Australia, as Binh deliberately walked on the clearly wet
stairs, the defence will be accepted with Bing being at least 50% contributorily negligent 37.

Case 8 & 9: Tung v The Breakers and Binh v The Breakers

The issue is whether Tung or Binh (plaintiff) can sue the Breakers (defendant) under the Tort of
Negligence.

Since there is no established relationship by the law, the Neighbor Test38 fails to establish that the
Breakers could have reasonably foreseen the Chu negligence as they were only doing their jobs and were
busy performing on stage as usual.

Case 10: Binh v Tung

The legal issue is whether Binh (plaintiff) can sue Tung (defendant) under the Tort of Negligence for his
injuries.

With no established relationship by the law, the Neighbor Test39 fails to show that Tung could have
predicted the lighting grid falling which was away from his vision. Ultimately, similar to two previous
cases, this omits him being liable in negligence, and Binh would not be able to sue Tung under TON.

Case 1: Gordon v Outback Burger

The key legal issue is whether the Outback Burger breach the contract by not honoring Gordon Gorge the
promised prize. The sub-issue is whether there is a valid contract between Outback Burgers and Gordon
Gorge.

36
Above n 7
37
Jackson v McDonald’s Australia Ltd [2014] NSWCA 162
38
Above n 17
39
Ibid.
A valid contract between two parties firstly requires a valid agreement, which consists of an offer and an
acceptance.40

When an offer is made by one party to the group or the world, including a promise to pay valuable things
to anyone who could perform the specific act, it then is a Unilateral Offer.41 Applying this to the case,
Outback Burgers promised to honour a Toyota Land Cruiser to anyone who performed specific acts,
including redeeming 50 coupons for a ticket, scratching a ticket with a gold car and presenting it at the
head office. The offer from Outback Burgers, therefore, is concluded as a unilateral offer.

Acceptance: A unilateral offer is accepted when the offeree starts to perform the conditions in the offer,
and the offeree in a unilateral offer is not required to communicate the acceptance. 42 Since Gordon had
collected enough coupons and redeemed them for a scratch ticket with a gold car, it is concluded that he
accepted the offer.

The minor issue here is whether the offeror’s revocation from the unilateral offer is valid. Although the
performance has begun, there are no rules that the offeror cannot revoke before the full performance’s
completion in the offer. 43 If the offeree could not complete the offer’s requirements before revocation, the
offeree could not get the reward. 44 Futhermore, an offer made to the world could be revoked in the same
manner, and the offeree should have known about it. 45 Also, the revocation could be done through a third
party.46 Applying to the case, when the Outback Burgers revoked the offer, Gordon had not presented the
gold car ticket at the head office as required. The offeror revoked the offer on radio and newspaper in the
same manner as before; therefore, Gordon should have known the revocation from nurses, radio or
newspapers. It is concluded that the revocation is effective.

Since the agreement became invalid due to valid revocation, there is a missing prerequisite for a valid
contract. Hence, there is no valid contract between Outback Burgers and Gordon Gorge, and he would not
be able sue Outback Burger for contractual liability.

40
Smith v Hughes [1871] LR 6 QB 597
41
Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256
42
Above n 2
43
Mobil Oil v Wellcome [1998] FCA 205; (1998) 81 FCR 475
44
Shuey v United States (1875) 92 US 73
45
Above n 5
46
Dickinson v Dodds (1876) 2 Ch D 463
Case 2: Sam v Outback Burger

When Outback Burger launched the same advertisement in the case between Outback Burgers v Gordon
Gorge, Sam Speculator collected 100 coupons and scratched two gold cars. After he showed the
receptionist the 2 tickets, another staff posted a notice of the promotion’s cancellation at the front door.

The key legal issue is whether the Outback Burger breached the contract by not honoring Sam Speculator
the promised prize. The sub-issue is whether there is a valid contract between Outback Burgers and Sam
Speculator.

The relevant legal rule for a valid agreement is the same as the case between Outback Burgers v Gordon
Gorge.47 With the same explanations, it is concluded that the offer from Outback Burger is a unilateral
offer and Sam Speculator accepted the offer by performing it.

With similar rules of revocation to Outback Burgers v Gordon Gorge.48 Applying in this case between
Outback Burgers v Sam Speculator, because Sam successfully performed all the offeror’s requirements
before the posted notice, and he had not known the cancellation before, the offeror cannot revoke the
offer after the full performance. It is concluded that the revocation is invalid.

Another prerequisite for a valid contract is Consideration.49 Consideration can take the form of a promise
to provide goods. 50 In a unilateral contract, when the offeree accepts and completes the full performance,
consideration has to be executed for offered promises. 51 Hence, while Outback Burger’s consideration is
the promise to reward a Toyota Land Cruiser in exchange for the performance, Sam’s full performance
including presenting the tickets with gold cars to head office is the consideration for the promise.
Therefore, there were valid considerations from both parties.

Finally, the court could presume that the contract would be legally enforceable, if made in the business
context. 52With Sam’s obvious intention to fulfill his performance and the fact that Outback Burgers
bought the Toyota Land Cruiser indicated mutual intention for an enforceable contract. Hence, there is a
valid contract between Outback Burgers and Sam Speculator.

47
Above n 1, 2, 3
48
Above n 4, 5, 6
49
Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87
50
Nickolas James, Business Law 4E (Wiley, 4th ed, 2014) 254-283.
51
Above n 4
52
Edwards v Skyways Ltd [1964] 1 WLR 349.
The sub-legal case issue is whether Outback Burgers could terminate the contract via unilateral mistake.
Unilateral mistakes happen when one party makes a fundamental mistake, and the other party knows or
should have known but takes advantage of it. 53
In this case, there is no clear evidence and strong
arguments for Outback Burgers to argue that Sam should have known Outback Burgers’s mistake in
printing scratched tickets. Based on Outback Burgers’ advertisements, Sam could not know how many
cars Outback Burgers planned to honor to figure out that his case of winning 2 cars was ‘too good to be
true’. Therefore, Outback Burger could not terminate the contract.

In conclusion, Sam could sue Outback Burgers for contractual liability and Outback Burgers has the
obligation to reward Sam Speculator with two Toyota Land Cruiser cars.

Scenario 3b

Case 1: Carl v Opera

The legal issue is whether Opera breached the contract by charging Carl $120 for a set of CDs. The sub-
legal issue is whether there is a valid contract between Carl and Opera.

There are two elements for a valid agreement: Offer and Acceptance. 54 Advertisements on the Internet,
which are asking for others to make offers, are invitations to treat, not offers. 55 Therefore, advertising a
set of CDs for $120 on Opera’s site was just an invitation to treat. When Carl sent the first email to order
a set of CDs on 7 June, he made an offer to buy.

While revocation can be effective when clearly communicated to the offeree, the offeror must revoke
before acceptance. 56 Also, a valid acceptance requires clear notification. 57 Applying to the case, while the
revocation was communicated on 8 June, the acceptance had already been valid because the offeror
received a confirmation email from the offeree on 7 June. Therefore, the revocation is invalid.

Since the contract was made in business context and it is an obvious intention to buy from Carl by giving
credit card details, the contract was legally enforceable. 58

53
Taylor v Johnson (1983) 151 CLR 422
54
Above n 1
55
Above n 11
56
Dickinson v Dodds (1876) 2 Ch D 463
57
Felthouse v Bindley [1862] 142 ER 107
58
Above n 13
Consideration could be a payment of money or provision of the goods.59 Also, consideration can be
value exchanged in the future. 60 Carl’s consideration is the payment for $120, and Opera’s consideration
is provisions of a set of CDs. There are mutual considerations between 2 parties.

In conclusion, there is a valid contract between Carl and Opera. Carl’s obliged to pay for $120 and
Opera’s obliged to deliver a set of CDs to Carl. Carl could not sue Opera in this case for as explained.

Case 2: Carl v Direct

The key legal issue is whether Carl could sue Direct for breach of contract by changing the price of a set
of CDs. The sub-legal issue is whether there is a valid contract between Carl and Direct.

Similar to Carl v Opera, advertising of a set of CDs for $75 on Direct’s site was just an invitation to
treat.61 When Carl conducted a series of actions on the website, he made an offer to buy on 7 June 2021.
On 8th June, Direct rejected Carl’s offer by explaining the pricing error. When an offeree rejected, the
offer lapsed.62 When the offer lapsed, there was no agreement and no valid contract between them. 63

Another sub-legal issue is whether there is a new offer (counter offer) from Direct. According to the
scenario, Direct just emailed Carl to explain their error and did not make any new offer to Carl.
Therefore, there was not any new offer.

In conclusion, Carl could not sue Direct because there was no valid contract between them. Carl was not
obliged to pay anything and Direct was not obliged to provide any goods.

59
Above n 11
60
Roscorla v Thomas (1842) 3 QB 234
61
Above n 16
62
Hyde v Wrench (1840) 49 ER 132
63
Above n 1