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Question:

Description:

Each week students were provided with three tutorial questions of varying degrees of difficulty. Your task is to answer a selection of tutorial questions from weeks 1 to 5 inclusive and submit these answers.

Week 1 Question

Is the decision of a national sporting organisation such as the National Rugby League or the Australian Football League to suspend a player for an offence under the laws of the game a rule or a law? Discuss.

Week 2 Question

Explain the doctrine of binding precedent.

Week 3 Question

Frank, a football lover, frequently attended games at his local ground. On one occasion the football was kicked into the stand where he was sitting, hitting him on the head and knocking him out of his seat, causing him to break his arm.

Part a) Can Frank sue either the local council or the football club, or both, in negligence for the broken arm that he received? Discuss.

Part b) what defences, if any, could the council or the club raise against Frank’s claim for compensation for the injuries he received, and would they succeed? Discuss.

Week 4 Question

Explain what is meant by the expression ‘vicarious liability’, and describe what needs to be established in order for the plaintiff to succeed in such an action.

Week 5 Question

Greta decided that it was time to sell her car. However, she was not certain of its value and so, when she advertised the car, she left out the price. When Sam responded to the advertisement, he asked for the price. Greta responded by saying, ‘Oh, I don’t know. I guess a fair price would be around a couple of thousand dollars’. When Sam arrived the following day with $2,000 for the car, Greta told him that she really meant $2500.

 

Answer:

1:

The national sporting organizations in the territory have maintained various rules or laws to maintain their organization. There are several sporting organizations such as the Australian Football League, National Rugby League and many others. The Directory of the Sports of Australia has restricted the particulars of these organizations, in addition to it is recognized the people of the organizations who are concerned in the improvement of those sports of Australia. Many times, the players of those organizations may make some offences, which may be opposed to those rules and regulations of the games (Jeanes, O’Connor, and Alfrey 2015). Australian Football has amended various rules of this game for some addition, modification or alteration and some other purposes. Australian Football Organizations have made several policies for the players. Australian Football League in the Deregistration Policy has specified several objectives to reduce the offences among the players in the League. In this policy, any player may be deregistered who has been established guilty for the Reportable Offence. The Reportable Offence is the offence, which causes in such history of any tribunal of those players may come beyond the reasonable level of football in this Australia. This deregistration has mechanically apprehended the official, as well as the players even at the age of 16 years, who are suspended for sixteen matches, as well as in any state or territorial leagues or in countries. However, in this time of suspension, the Football League has provided almost 50% of the values.

Any decision of suspension of the players from their team if they have done any reportable offence and have violated some strict rules of the game are very much correct to the organization. It should mention here, the organizations provide an opportunity for the suspended players to re-register themselves, but if they have again suspended, then they can have lost their opportunity of such deregistration. These suspensions are necessary as the other players may be apprehended to do such offences. It helps to reduce game betting in this country. The suspension is required the national organizations of sports to make a decent position in the eye of the other sporting organizations in the other nations.

2:

The rules in the precedent are one of the rules of the common laws that every lower court should follow the decision or verdict of its superior courts in the similar cause of action of a case. The word precedent means that lower courts of any territory have authorized to follow the verdicts of the Supreme Court, as well as the High Courts (legalanswers.sl.nsw.gov.au 2020). This principle of the following of precedents to establish the promoting such consistency of the policy of decision-making of the juries or judges of the different courts in similar types of cases, in the same way. There are two types of precedents, one is persuasive, and another is binding.

The binding precedents are to be followed by the lower courts, which has been ensured by the superior courts of it. The court systems should maintain hierarchy in this territory to bind these binding precedents. The precedents should have been proved before the courts as a relevant decision of the superior court with the concerning matter (legalanswers.sl.nsw.gov.au 2020). The decisions of the High Courts and Supreme Court should be followed by the lower courts. The High Courts should follow the decision of the Supreme Court. As an example, the verdict in the case of Mabo vs. Queensland 1992 is regarded as a precedent in the common law of Australia. This case has decided some issues of the indigenous people in this territory, and the courts follow this verdict in similar types of issues. Thus, it is a binding precedent in the law of the Australian Court.

 

3:

Part a.

In the scenario, Frank attend to watch the football on a local ground frequently. Once, a player kicks the football for which he injures, and it causes him damage to his hand.

The common laws concerning negligence will relate here to decide the issue of Frank for suing the defendants for negligence. The following elements should be satisfied to prove such negligence. The defendant should possess a duty of care to a plaintiff, in accordance with the case of Grant vs. Australian Knitting Mills Ltd. 1935. Next, the defendant should breach such duty and following the judgment of Donoghue vs. Stevenson 1932. Then, the plaintiff should suffer a loss or injury for that breach of duty, which is described in Sharman v Evans 1977. Lastly, the plaintiff should prove a proximate relationship, which consists between the breach and harm, and it is pronounced in Tubemakers of Australia Ltd v Fernandez 1976 to claim compensation from any negligence.

Through applying the fundamentals and relevant verdicts of the above cases, the councils or the club have the duty of care towards its spectators not to injure. As Frank is injured from their players, then they breach their duties. Therefore, Frank may claim compensation for the injured hand.

Part b.

In this part, it will discuss whether the defendants can raise any defence against Frank’s claim. The defendants may apply the maxim of ‘volenti not fit injuria’ that means if the plaintiff consents on such risk of harm, it will be regarded as a no-injury. The defendants can take advantage of another defence of contributory negligence of Frank in such incident. The Court establishes in Butterfield v. Forrester 1809 that contributory negligence is a defence any claim of negligence. In this situation, Frank knows that he may be wounded if he attends to watch that football match. Therefore, the defendants can take the defence of these legal concepts.

4:

The term vicarious liability is an obligation of a person, which is arisen by way of the action of the other person. It is a secondary liability of the person. The superior of the wrongdoer will be liable in this concept of liability (Goudkamp, and Plunkett 2017). The person will be liable if he controls the wrongdoer. This wrongdoer must be the subordinator of his superior that may arise the liability of the superior. The wrongdoing of the subordinate must have been done with the course of his employment. The significant elements to establish such vicarious liability are discussed here.

Elements of establishing vicarious liability:

The elements of establishing this vicarious liability under the tort law are discussed one by one. Firstly, the person should control the activities of the wrongdoer. It has established in The Catholic Child Welfare Society and Others v Various Claimants 2012 that an employer is responsible for the unlawful act of the employees to whom he controls. Secondly, it has discussed in the case of New South Wales v Lepore 2003 that the wrong should have been done by the wrongdoer within the course of employment of the superior. Thirdly, the vicarious liability of a person can be established if another person commits such wrongdoing within a capacity of a fiduciary relationship with the former. Fourthly, the plaintiff should prove that there is a fundamental link between the control of an employer and the wrongdoing of his employees. By these points, a plaintiff can able to hold liable any person who is not directly connected to such wrong but indirectly connected with that.

5:

Issue

The issue involves in this question, whether a contract arises between Sam and Greta or not.

Rules

The instructions concerning the acceptance of an offer to construct any contract enforceable apply in the question. In Carlill vs. Carbolic Smoke Ball Co 1892, the court decides that the general offer is enforceable. Any person is capable of accepting that offer. In Harvey v. Facey 1893, the court decides that the advertisement is merely an invitation to treat of the offer, which is different from the offer. An offeree may ask for the information regarding the contract. It is not an acceptance. In Stevenson v. McLean 1880, the court says that asking mere information is not dismissed the offer. It has decided in the case of Lucy v. Zehmer 1954 that the offeree should provide proper consent to such acceptance. Just answering any question is not constituted any acceptance of the offer.

Application

In the situation, Greta desires to sell the car and make an advertisement. Sam asks her for the cost of her car. The following day, Sam comes to purchase that car on that said amount.

Relating Carlill’s case with this situation, Greta makes an advertisement publicly, and anyone may come for contracting with Greta.

Applying Harvey’s case here, an advertisement for selling her car is not an offer. It constitutes an invitation to treat the offer to her. Sam might make an offer to her for purchasing that car.

Applying Stevenson’s case, Sam asks Greta to identify some information regarding the car. It is not constituted an offer of purchasing so. Greta does not give her consent to such offer.

Applying Lucy v. Zehmer’s case here, a mere reply to any query of Sam is not create a consent. Thus, there is no offer or acceptance.

Conclusion

Thus, it can be established in this situation that the contract does not exist between them.

 

References

Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926

Carlill v Carbolic Smoke Ball Co. [1892] EWCA Civ 1 

Donoghue v Stevenson [1932] UKHL 100

Jeanes, R., O’Connor, J. and Alfrey, L., 2015. Sport and the resettlement of young people from refugee backgrounds in Australia. Journal of Sport and Social Issues, 39(6), pp.480-500.

Goudkamp, J. and Plunkett, J., 2017. Vicarious liability in Australia: on the move?. Oxford University Commonwealth Law Journal, 17(1), pp.162-170.

Harvey v Facey [1893] UKPC 1, [1893] AC 552

legalanswers.sl.nsw.gov.au, 2020. Precedent And Evidence. [online] State Library of NSW. Available at: https://legalanswers.sl.nsw.gov.au/hot-topics-courts-and-tribunals/precedent-and-evidence  [Accessed 11 May 2020].

Lucy v. Zehmer (1954) 196 Va. 493; 84 S.E.2d 516

Mabo v Queensland (No 2) ("Mabo case") [1992] HCA 23

New South Wales v Lepore [2003] HCA 4; 212 CLR 511; 195 ALR 412; 77 ALJR 558 

 Sharman v Evans [1977] HCA 8, (1977) 138 CLR 563, High Court (Australia)

Stevenson v. McLean (1880) 5 QBD 346

The Catholic Child Welfare Society and Others v Various Claimants [2012] UKSC 56

Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303; (1976) 50 ALJR 720

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