Legal Concepts And Advice For Negligence Cases

Key legal concepts

Question 1

Western University (WU) had a large campus in suburban Sydney. In order to provide a reliable connection for staff and students, WU bought a disused Monorail from a theme park in Queensland and arranged for WU maintenance staff to install it in May 2014. Because of funding cuts several senior maintenance staff had taken early retirement and had not been replaced. The remaining staff were keen, but inexperienced, and none had worked on such a large scale project before.

The monorail commenced operation in July 2014 in time for second semester. John was a first year student in the School of Business at Western University. He was blind in one eye and had lost most vision in his remaining eye, but used a cane to assist him in getting around the campus. One day he was walking across the campus under the monorail track when he slipped on a large pool of oil, and suffered a broken leg and arm. Subsequent investigation showed that the oil had dripped from an inadequately sealed tank installed by WU staff as part of the monorail system.

When John’s mother Steffi was told he was in hospital she tried to get there as soon as possible. In her panic she failed to turn on her car’s indicator lights when slowing down to turn right into the hospital car park. Her car was hit by Michael, who was driving the car behind. Steffi suffered whiplash, and also suffered nervous shock on seeing John. She will need psychiatric treatment for some years, as well as having a permanent partial loss of movement in her neck. John has suffered permanent loss of use of his right arm. Michael is uninjured but has extensive damage to his car.

In these circumstances, advise WU, John, Steffi and Michael of any rights or liabilities they may have in the tort of negligence ONLY. In your answer, discuss the likelihood of success of each of these actions and appropriate defences which may be raised by WU, John, Steffi and Michael giving full legal reasons and referring to decided cases to support your answer.
 
Question 2

Jeremy owns a successful restaurant business in Parramatta. Jeremy’s friend, Max wishes to purchase a restaurant at Parramatta. On Friday evening, Max finds a Lebanese restaurant, ‘Kababs Galore’, for sale. The restaurant is full of customers and is located at the corner of George Street and Smith Street, Parramatta. ‘Kababs Galore’ is also very close to John’s restaurant at Duck Avenue in Parramatta. The following Monday, Max speaks with Jeremy about his plans. Max explains to Jeremy that he is keen to buy the restaurant but that he has never owned a restaurant or even worked in the industry before, and that he would appreciate Jeremy’s advice and guidance. Jeremy assures Max that ‘Kebabs Galore’ appears to be a very successful restaurant and that he is “almost guaranteed” to make a profit in the first year itself. Max immediately decides to purchase ‘Kababs Galore’ with his brother Cameron. One year later, they are on the verge of bankruptcy. The restaurant was not as popular or profitable as they expected and the turnover has declined even further since they took over the business.

Has Jeremy committed the tort of negligent misstatement? Giving full legal reasons and referring to decided cases to support your answer focus on whether or not Jeremy owed a duty of care to: (1) Max and (2) Cameron; the likelihood of success if Max and Cameron bring an action against Jeremy; and appropriate defences which may be raised by Jeremy.

Application of laws in different sectors

In any country in the world laws are framed for proper and organized social phenomena. For the purpose of ensuring peace and social security among the citizen, the government must have proper governance. It is the duty of the government to protect the rights of the citizens. For smooth and proper governance there must a set of rules which must be followed by each and every individual within the territory of that particular country. In a federal structure country there are three pillars based upon which the structure is standing, these three pillars are Legislation, Executive, and Judiciary. In legislation legislative authorities frame laws for considering each and every aspect of the present society, legislations refer statutes, and these are enacted by competent legislative bodies. Mainly member of parliaments are empowered to enact statutes for appropriate governance. These laws are enacted by complying majority support in favor of the proposed bill which is to be enacted as laws. Without majority support no bills can be framed as laws in house of Parliament. Executive bodies are also established under statutory provisions, in other words executive bodies are statutory bodies. Executive bodies are empowered for proper execution of enacted statutory provisions. This authority looks after the implementation of the laws. Each and every laws are to be executed by adequate executive authorities. At the last and the most important pillar of the federal structure is the judicial system of the country. Judicial system is the absolute authority in respect of the laws of the country. If there is any conflict between two or several statute relating to a particular provision, judiciary is the authority who is empowered to resolve that conflict. Judicial system is also frame laws during interpretation of any provision of the statute and by providing judgments the upper courts binds all the other inferior courts of the country, these laws are known as judge made laws. Laws framed by judicial system by giving judgments relating to any particular case are also laws, it possesses enforceability, If the supreme court of the nation gives any judgment in respect of any particular subject matter in case then, the laws framed in such judgment must be followed by all the other courts within the territory of Australia. All the laws are to be enacted, establishment of statutory authorities, and judge made laws also must not be inconsistent with the law of the land that is The Constitution of the country. If any law has been made by the legislative authority of the country and such law contravenes the constitution by any means then such law shall not be considered as a valid legal statute. The validity of the provisions of the statute and the validity of the statutes itself are determined by the judicial system of the country during deciding any dispute relating to that provision or statute in respect of any case pending before the court of law with competent jurisdiction.  

In every country there are some segments of the legal phenomena, for governing various aspects of the society, it is not possible that a single statute to be applied in all the segments of the social phenomena.  There are various problems in various parts of the society, to deal with all of them there must be adequate number of laws to deal with each and every sector. For agreements and contract there is contract law, for family related disputes there is family laws, for business related disputes and for proper guidelines there is business laws and for breaching social decorum and infringing the rights of any other person there is penal laws as well but all these laws shall be governed by the law of the land that is the constitution of the country, none of these law contravenes any of the provision of the constitution of the nation.

Penal provisions and their implementation

For proper implementation of enacted laws and to look after the thing that no one shall breach the laws there must be a penal code, which shall be applicable upon the persons who will breach laws or infringing the rights of any other person. Penal provisions are very much required for maintaining proper social phenomena and to ensure the rights of the individuals. But any of the penal provision should not breach the rights conferred by the United Nations, these rights are known as human rights. The main executive body for implementation of the penal provisions is the Police authority of the country, few more important and powerful authorities than police are also there, but police is the most common example of executive authority.

Sometime a conflict may arise between two existing laws relating to a particular matter or issue, then among them such law will prevail which is not inconsistent with the law of the land, that is the constitution of the country. There are quite a number of occasions the meaning of the words used in the statute are not comprehensive, then it is interpreted by the competent court of law by determining the actual object of the concern statute and implications intended to be made by the enactment.  

Law enacted by the parliament of commonwealth is applicable throughout the territory of Australia. All the laws framed by the legislative authorities are binding upon each and every person of the country, subject to the provisions. In the eyes of the law every person is equal. All the laws which are applicable upon the citizens of the nations are also known as common laws of the country, subject to exceptions. The concept of tort signifies penalizing the persons who has done any civil wrong. If any person deprives another person from his or her rights then such a person shall be liable for tortuous liability. Though law of tort deals with civil wrongs, but it does not include breach of contracts. Mainly law of tort based upon judge made laws, every civil is different in nature from the other one, so it is quite difficult to cover all the aspects of tort under a single statute. Only the court of competent jurisdiction can define new tort and it’s applicability, even it can be recognized by the courts through common laws.

Law of contract or the Contract Act deals with all the disputes in respect of contracts. The statute also specifies a clear guideline regarding the validity of the contracts as well as the void contracts. The object behind the concept of law of contracts is to ensure the rights conferred by a person as a party of a contract. An agreement enforceable by law is a contract. In every contract there must consideration, it does not mean that consideration includes only financial aspects but consideration implies a promise to perform a particular task. For a valid contract the parties to the contract must competent, that is the parties must have attained the age of maturity and is of a person with sound mind. In case of a breach of a contract the aggrieved party may approach to the court of law with competent jurisdiction, here the aggrieved party may ask for three kinds of reliefs those are i) specific performance, ii) Compensation or damages, iii) injunction. By virtue of these three relieves the rights of the aggrieved party can be restored. The main difference between contract laws and laws of tort is that in case of a contract there must be a legal instrument signed by the parties to the contract but in case of a tort there shall not be any such agreement. In terms of a valid contract object is a very important thing, a contract with a illegal object shall be considered as void ab initio it means it is invalid from the very beginning.