Commercial Law

Doc TypeCase Study Academic Levelcollege-undergraduateSubjectcommercial LawTitleCommercial lawCitationotherOther Citationaccording to provided informationRequired Sourcesaccording to provided informationPages8Due Date2018-04-27 06:00:00Paper DescriptionCase and Section are required and this assignment is 30% of the course so need to be done very carefully and use the terms and condition properly. if you are confused anywhere feel free to contact me
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THE UNIVERSITY OF ADELAIDE
COMMERCIAL LAW I
ASSIGNMENT – 2018 SEM 1
The Assignment is an individual assignment and not a group assignment.
The Assignment covers and assesses the Contract Law topics to the end of topic 4 “Contract
Terms – Implied Terms”. It is not intended to cover and assess topic 1 “Introduction to the
Legal System and to Business Structures”.
The Assignment answer is due at 9 am on Monday 30 April. This new due date overrides
any date that has appeared in the Course Outline.
Assignment answers are to be submitted electronically through the Turnitin link that will be
made available on My Uni. Further instructions will be provided for this closer to the due date.
Assignment Answer Format
The Assignment answer must be no more than 2,000 words in content excluding footnotes.
A penalty, of a reduction in mark, may be imposed if this word limit is exceeded. It must be
type written (double spaced on one side of A4 paper), a font size of not less than 12 must be
used and a word count must be noted on it. An Assignment answer that does not have a word
count noted on it may not be marked.
Please note that the use of footnotes is preferred over the use of endnotes. Footnotes should
not, however, include content that is essential to the reasoning on an issue. Marks will only
be given to the content of the body of the Assignment answer and generally will not be given
to the content of footnotes.
Before starting your Assignment answer, students should ensure that you have read carefully
the “Assignment Notes” for more information about the format and content of the
Assignment answer, and about the recommended steps you should take in preparing and
writing your Assignment answer.
Assessment Criteria
1
The extent to which the Assignment answer identifies relevant law and legal issues.
2
The extent to which the Assignment answer demonstrates concise and cohesive
written arguments on those legal issues, including having references to any applicable
case decisions of the unenacted law (Common Law) and any applicable statutory
provisions of the enacted law, and showing how they assist the argument of a party.
3
The extent to which the Assignment answer sets out how the law applies to relevant
facts to support the conclusion in the answer.
4
Whether the Assignment answer is easy to read and understand. Ease of reading can
be achieved, for example, by the use of relevant headings and sub-headings.
Assignment 2018 Sem 1
Author: D. Carbone
2
Assignment Question
You are required to advise each of the parties for the legal disputes that have arisen from the
“Background facts” below, and briefly outline how a judge would decide the issues in dispute.
The two legal disputes are:
1)
Adelaide Show Ltd v All Business Insurance Pty Ltd.
2)
Peter v Amusement Rides Pty Ltd.
Background Facts
The Royal Adelaide Show is an annual event in South Australia that attracts thousands of
visitors over nine days in September. The Show is one of the biggest in Australia and
features exhibitions and displays, including farm equipment and animals, fashion and
competitions. Its major attractions include a variety of carnival and amusement rides. The
Show is organised and operated by Adelaide Show Ltd on premises owned by it.
One of the Show’s oldest rides is the “Mad Mouse”. This is a roller coaster ride in which
separate open carriages holding two persons at a time ride at a rapid speed on a convoluted
track built high above the ground. The track includes steep slopes and sharp turns that
provide thrills and enjoyment for the roller coaster’s riders. The roller coaster is owned and
operated by Amusement Rides Pty Ltd, which carries on the business of supplying and
operating amusement rides.
Unfortunately late on the third day of the Show, as one of the Mad Mouse’s carriages was
riding around the roller coaster’s tracks, it broke away from the ride. The carriage plunged
downwards landing on the ground next to the Mad Mouse ride. This accident caused injuries
to two riders in the carriage at the time, Peter and his 8 year old daughter. He sustained
injuries to his body that will require medical treatment at a cost of $50,000.
Following the accident, the government agency SafeWork SA impounded the Mad Mouse
ride to undertake an investigation of the cause of the accident. This investigation reveals that
the ride did not have a current safety certificate that was mandatory under the law for the ride
to be operated. The investigation also reveals that two of the four bolts that secured the front
wheel of the carriage had snapped in half and that the remaining two bolts sheared off, which
caused the carriage to break away from the ride.
1)
Adelaide Show Ltd v All Business Insurance Pty Ltd
Shortly after the accident, Adelaide Show Ltd (Adelaide Show) sent a letter to its insurance
company, All Business Insurance Pty Ltd (ABI), advising of the accident and the likelihood
of claims being made by those who were injured or suffered loss as a result. Adelaide Show
said that it expected the claims to be based on its negligence in failing to ensure that the Mad
Mouse ride’s operator had a current safety certificate.
ABI replied by a letter in which it stated that such claims arising from the accident would not
come within the scope of the insurance cover taken out by Adelaide Show. The insurance
cover provided was set out in a valid written contract signed by both parties, the terms of
which had been drafted by ABI. The insurance contract included clause 20 that states:
Assignment 2018 Sem 1
Author: D. Carbone
3
“(1)
(2)
The insurance cover under this policy extends to any liability for personal
injury or property damage arising from the acts or omissions of Adelaide
Show Ltd, its employees, servants and agents on Adelaide Show Ltd’s
premises, and from the acts or omissions of persons invited by Adelaide Show
Ltd onto its premises.
However, the insurance cover does not extend to liability for personal injury
or property damage arising from the acts or omissions of a person on
Adelaide Show Ltd’s premises for an unlawful purpose.”
ABI said in its letter that the insurance cover was excluded by clause 20(2) since the operator
of the Mad Mouse ride not having a current safety certificate meant that the operator was “a
person on Adelaide Show Ltd’s premises for an unlawful purpose”, namely operating an
amusement ride without a current safety certificate that was mandatory and required under
the law.
Adelaide Show has now started legal action against ABI as a result of ABI’s refusal to
indemnify Adelaide Show for any claims resulting from the accident. Adelaide Show claims
that ABI has breached the express terms of the valid insurance contract.
Adelaide Show points out that the day before the insurance contract was signed by it,
Adelaide Show sent an email to ABI that stated:
“Can you please explain the effect of clause 20(2). We are concerned that the clause
will leave Adelaide Show Ltd exposed to a range of legal claims for which we would
need insurance cover, especially the risks to the public arising from our animal
display and competition events and from the other attractions on our premises during
our Show.”
Later the same day, ABI telephoned Adelaide Show and replied by saying:
“Clause 20(2) is a standard term in all our insurance policies. It applies to ensure
that we have no liability to indemnify for losses and damage arising from the acts of
persons who are on your premises illegally, such as trespassers and burglars. The
clause should therefore have no application to the risks mentioned in your email.”
The next day Adelaide Show signed the insurance contract and delivered it to ABI.
2)
Peter v Amusement Rides Pty Ltd
Peter had entered into a valid contract with Amusement Rides Pty Ltd (Amusement Rides) by
purchasing a ticket for the Mad Mouse ride service supplied by it in trade or commerce. The
ticket cost Peter $5. Because he was injured as a result of the ride crashing, Peter has started
legal action against Amusement Rides seeking damages.
In its defence, Amusement Rides has pointed out that on the back of the entrance ticket to the
Royal Adelaide Show, which Peter purchased from Adelaide Show Ltd at a cost of $15, there
appears the following statement:
“Animals displayed in Adelaide Show Ltd’s premises and amusement rides on these
premises can be dangerous and accidents can and do happen that may cause an
Assignment 2018 Sem 1
Author: D. Carbone
4
injury to you. To the extent allowed by law, legal liability for your death or personal
injury is excluded automatically on you entering these premises.”
Adelaide Show Ltd decided to include this statement on its entrance tickets after a recent
Show during which an animal broke away from its handler and ran into some Show goers,
injuring a number of them.
Amusement Rides has also pointed out that above its ticket booth, where tickets to ride the
Mad Mouse were purchased, there was a sign (measuring 60 cms wide x 30 cms high) that
stated:
“Persons using this ride do so at their own risk. Amusement Rides Pty Ltd is not
legally liable for any injury or loss whatsoever (including property damage), whether
due to its own negligence or that of its employees or contractors, or otherwise. All
implied terms are completely excluded.”
This sign was just below an illuminated flashing coloured sign (measuring 2 metres wide x 1
metre high) that read “Mad Mouse Ticket Booth”. Although Peter noticed and read the
illuminated sign to find where he could buy a ticket for the Mad Mouse ride, he did not take
any notice of the unilluminated sign below and did not read it and was not actually aware of
its terms before buying his ticket for the ride. It was late in the day and dark but the area
around the rides was lit up with street type lighting.
Four months after the Mad Mouse crash, SafeWork SA produced a more detailed report from
its investigation. In addition to the investigation’s initial revealing of the Mad Mouse ride not
having a current safety certificate, the detailed report further reveals that the four bolts that
secured the front wheel the Mad Mouse roller coaster carriage contained a latent defect. This
latent defect was due to a machining error that had occurred in the manufacture of the bolts,
and could not have been detected by visual inspection by Amusement Rides or by the
manufacturer of the Mad Mouse ride.
The SafeWork SA report also concluded that had the bolts not contained the latent defect,
then it was unlikely that the two bolts that had snapped would have done so, that the other
two bolts remaining in place would have sheared off, and that the carriage would have broken
away from the Mad Mouse ride.
Assignment 2018 Sem 1
Author: D. Carbone
THE UNIVERSITY OF ADELAIDE
COMMERCIAL LAW I
ASSIGNMENT NOTES – 2018 SEM 1
For the Assignment, you are required to advise each of the parties for the two legal disputes
that have arisen.
Recommended approach to answering the Assignment
1
You should refer to the approach to answering a legal problem (or legal case study)
set out in PowerPoint slides 11 to 12 of the orientation Topic 1-1 “Introduction to
Commercial Law I”. This approach is also further explained in these notes.
2
Identify the parties to the dispute and the legal relationship (if any) between them, and
identify the party who will be the Plaintiff in a potential Court case.
3
Your Assignment answer should identify the legal action to be brought by that
Plaintiff and then the legal issues raised based on the relevant law.
4
For your advice to the Plaintiff, you should consider the matters that must be proved
by the Plaintiff to succeed in the legal action. These matters are called the “required
elements of the cause of action”. The burden of proof is on the Plaintiff to convince a
judge of each of these required elements. In a civil dispute, the standard of proof is
on “the balance of probabilities”.
5
For your advice to the Defendant, identify which of the required elements of the cause
of action the Defendant is likely to concede and which they are likely to contest. The
required elements that the Defendant is likely to contest become the issues in dispute.
You should give most emphasis in your Assignment answer to the contested required
elements.
6
You should ensure that each of the arguments relied on by the Plaintiff on an issue is
responded to by the Defendant, unless the Defendant concedes the point. Not doing
this in an Assignment answer is a common failing of student answers.
7
Given the word limit, in writing your Assignment answer there is no need to provide an
Introduction that summarises the facts or sets out an overview of relevant legal rules.
Therefore, after starting by setting out the legal issues in dispute, an Assignment answer
can go on, for example, to take the form of “The Plaintiff can argue that …”, which
should appear under a main heading “Advice to Plaintiff”. See further the sample part
solution to Tutorial 3 Pauline v Steven.
8
For both the Plaintiff and the Defendant, use a subheading for each legal issue in
dispute and then set out under that subheading the arguments that can be advanced or
relied on for that issue.
9
Make sure you refer to any unenacted law Court cases or any statutory provisions of
the enacted law that will support a party’s position.
Assignment Notes 2018 Sem 1
Author: D. Carbone
When referring to unenacted law Court cases, the level of detail required when
referring to them is a matter of judgment. Usually a very brief statement of the facts
of the case, the outcome of the case and the principle relied on by the Court will be
sufficient. If such Court cases have been dealt with in the course PowerPoint slides,
then you can use the same wording as is used in the slides. You do not need to and
should not express the decided case law in your own words as this will have the effect
of changing the law and its meaning.
In regard to statutory provisions of the enacted law, it is not necessary to set out the
section in full. Just give a brief paraphrase of the section and a precise reference,
including the section number, the subsection number and paragraph number (if any),
and the name of the Act (eg s15AA of the Acts Interpretation Act 1901 (Cth)). Again,
if such statutory provisions have been dealt with in the course PowerPoint slides, then
you can use the same wording as is used in the slides. You do not need to and should
not express the enacted law in your own words as this again will have the effect of
changing the law and its meaning.
Also, it is important to explicitly show how previous Court cases or the statutory
provisions assist the argument of a party to the dispute. A common failing of student
answers is to leave it to the Assignment marker to work this out.
10
For the judge’s decision, you should state the overall decision for the case study and
then briefly outline the reasoning of the judge that supports the decision.
As indicated, you should be brief in this part of your Assignment answer because the
majority of the marks for the Assignment will be usually allocated to the other parts
of your answer, ie your advice to the Plaintiff and Defendant on their arguments for
the legal issues identified.
Despite this part of your answer not carrying many marks, it is noted that you may
have some difficulty in making your decision. This is also often the case in the real
world for judges as well as lawyers who advise clients. After all, if there is a clearly
correct outcome that is agreed by everyone, a legal dispute and case would never get
to Court. The parties would settle it out of Court. But despite this difficulty, you
must state in your Assignment answer who you think would succeed in a legal action.
Finally, note that judges are of course guided by their sense of fairness and common
sense in deciding legal disputes, and so you should be as well in reaching your
conclusion.
Assignment Notes 2018 Sem 1
Author: D. Carbone
THE UNIVERSITY OF ADELAIDE
COMMERCIAL LAW I
PART SOLUTION TO SAMPLE ASSIGNMENT – PAULINE v STEVEN
On the following pages is part of a suggested solution to the legal Case Study question
Pauline v Steven discussed in Tutorial 3.
This suggested solution is provided to give you an indication of the format and layout that
you should use for your Assignment answer. The “Assignment Notes” have further
information about the Assignment answer format and layout, as well as other
recommendations you should follow.
Another reason for providing the part suggested solution is to help you to ensure that you
have identified the legal issues and arguments that should be addressed in an answer for the
legal Case Study question involving Pauline and Steven.
The following points should be noted about the part suggested solution:
1
The arguments outlined for the parties are stated at their briefest. It is expected that
some of the arguments would need to be expressed and explained in more detail in an
Assignment answer. As stated in the “Assignment Notes”, it is important to explicitly
show how any statutory provisions or previous Court cases assist the argument of a
party to the dispute. A common failing of student answers is to leave it to the marker
to work this out.
2
When the suggested solution refers to previous Court cases, only the name of the case
has, in the main, been mentioned. Again as indicated in the “Assignment Notes”, in
referring to relevant Court cases in your Assignment answer you can go further and
usually give a brief statement of the facts of a Court case, the outcome of the case and
the principle relied on by the Court. In this regard, the level of detail that is sufficient
will be a matter of judgment.
3
The suggested solution does not include a part setting out an outline of how a judge
would decide the issues in dispute or, in other words, a conclusion on the legal
disputes. This has been done deliberately to reflect that the main focus of an
Assignment answer should be on identifying the legal issues raised and setting out the
supporting arguments needed for the particular Case Study question. Nonetheless,
you must still include in your Assignment the brief outline of the judge’s decision.
See further paragraph 10 of the “Assignment Notes”.
4
Of course, the legal issues in dispute that are relevant to this Case Study and discussed
in the solution should not be taken as being indicative or determinative of the legal
issues that should be identified as relevant and discussed in a student answer to the
Assignment for the course.
5
Although the solution includes an Introduction of sorts setting out the relevant legal
issues, it should be noted and remembered that it does not “waste” any of the word
limit in repeating the facts of the Assignment question. See further paragraph 7 of the
“Assignment Notes”.
Assignment sample Part solution – Pauline & Steven 2018 Sem 1
Author: D. Carbone
2
PAULINE v STEVEN
Whether Pauline (P) is entitled to recover the $50,000 from Steven (S) depends on:
1
Whether the first agreement for P to redecorate the cellar door for $55,000 was a first
valid (oral) contract.
2
Whether the second agreement for P to accept $5,000 in full and final settlement was
a second valid (written) contract.
3
Whether equitable promissory estoppel applies to the second agreement for P and or S.
Advice to P
Issues 1 and 2 each require the elements of agreement, intention to be legally bound, and
consideration (unless exceptions apply).1 The facts state that P and S “agreed” in relation to
issues 1 and 2 and so agreement is not at issue [and does not need to be addressed].
First valid (oral) contract was made
Intention to be legally bound
The intention to be legally bound can be specifically expressed by t …
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