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Third Transmission Australia: Pan Australia

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Questions:

1. Using your knowledge of statutory interpretation consider whether any of the following ‘sells or hires or offers for sale or hire or gives to any other person – any knife which has a blade which opens automatically by hand pressure applied to a button, spring or other device in or attached to the handle of the knife’ and therefore commits an offence under s1(1) of the Restriction of Offensive Weapons Act 1959:

(i) Jane, a youth worker, confiscates a flick knife from a member of her youth club and gives it to her supervisor.

Tony, an antique dealer, displays an old military knife with a spring opening device in his shop window with a price ticket attached to it.

Fola buys an unopened box of kitchen utensils from a car boot sale. Without examining the contents closely she donates the box to a charity shop.

The box is found to contain a flick knife.

2. Critically analyse the following case and say whether or not you think that the plaintiff will succeed under the tort of negligence: John was the batsman in a cricket match. He hit the ball so hard that it went over the brick wall that surrounded the cricket ground over the road outside and hit Mr Smith, who had just opened the front door of his house. Mr Smith sued the cricket club for negligence. Mr Smith had a nasty injury on his head caused by the ball. It was stated in court that the ball had been hit over the wall only three times in the last ten years.

 

High Distinction

Distinction

Credit

 

Pass

Fail

 

21-25 points

16-20 points

11-15 points

 

6-10 points

0-5 points

Demonstrated knowledge of legal

 

 

 

 

 

 

concepts

 

 

 

 

 

 

Demonstrated legal research

 

 

 

 

 

 

 

 

 

 

 

 

 

Application of legal principles to the

 

 

 

 

 

 

problem

 

 

 

 

 

 

 

 

 

 

 

 

 

Constructed legal argument

 

 

 

 

 

 
 

Answer:

1. In this case Jane has not committed an offence under section 1 of the Restriction of Offensive Weapons Act 1959, as in this statute it is clearly mentioned that if any person produces, or intends to sell or intends to give on hire, or lends to any other person, or any knife which contains a blade, which may be get open by any sort of hand pressure or by any other means or any flick knife then such a person shall be liable for punishment under this act, the person who will commit such an offence for the first time, shall be punished with imprisonment for a term which may be extended to three months or with fine which may be extended to fifty pounds or for the subsequent occasions the term of imprisonment shall be six months and the fine would be up to two hundred pounds (Legislation.gov.uk, 2015). Here Jane has confiscated the knife from one of the member of the youth club with an intention to place it in secure place so that no unfortunate event may occurs, for that purpose she has not kept the knife with her, rather she gave the knife to her superior that is the supervisor. Jane has vested trust on the supervisor as he is the superior personnel upon her, and delivered the knife which could be a dangerous weapon, to her superior authority. For that purpose Jane is not an offender under the provision of the concern statute (Koziol, Schulze and Antoniolli, 2008).

ii) If Tony has any authorization from the competent authority in respect of selling this kind antique goods then he shall be exempted but if he do not possesses such an authorization then he shall be guilty under the provision of section 1 of the Restriction of Offensive Weapons Act 1959, as in the concern statute it is specifically mentioned that if any person exposes or have in possession to sell or to give on hire any flick knife then such a person shall be liable for punishment under the provisions of this act, for imprisonment of a term which may be extended for three months and fine of fifty pounds for the first commission and for the subsequent commission the term of imprisonment may be extended to six months and the fine would be two hundred pounds (Peterson, 2013). Here, Tony has not only exposed the goods in concern but also shows his intention to sell it by attaching a price tag along with the product in dispute. For that purpose he shall be liable under the provision of this act, but as he is an antique dealer, he have to deal with such kind of things, so he have to obtain a prior authorization before giving that thing in exhibition in his store for the purpose of selling the flick knife (Higgins, 2008). This may be a subject of exception, but nevertheless, unless to any contrary, if Tony does not have any prior authorization from the competent authority then he shall be punished in accordance with the provisions of this act (Savarin, 2007).

iii) Here Fola is totally exempted from the provisions contained in section 1 of the Restriction of Offensive Weapons Act 1959. In any criminal activity or any wrong act from the part of the respondent, the intention plays a major role at the time of deciding the commission of the offence or the wrongful act. Here, Foal was not aware of the fact that the box she purchased containing any flick knife. She bought the box in a good faith from the seller and depending upon such good faith she delivered the concern box into the charity. In the provision of section 1 of the Restriction of Offensive Weapons Act 1959, if any person keeps the flick knife with an intention to sell it or to give it on hire, or who sells or gives on hire any such thing shall be liable for the punishment imposed under the provision of this act (Moffatt, Fitzgerald and Goh, 2004). Here, Fola neither kept it with an intention to sell the flick knife nor she delivered the flick knife deliberately to the charity, she bought the concern box in good faith as well as she delivered it on a good faith, so she is not guilty under the provision of this act. There nothing mentioned about the negligence factor from the part of the purchaser, so cannot be compelled because of the negligence in accordance with the provision of this act (Heath, 2009).

2. Under the mentioned circumstances John is not liable for causing negligence. Here John is a sports person, basically a batsman in field of cricket. No cricketer would like hit any other person while he is bating with an intention to do so (Linden, Feldthusen and Brecher, 2007). At the time of playing a game, especially a outdoor game, the sports persons relating to that particular game gets very much involved and they used to try their level best for performing in the match. If a batsman hits for a six, the ball will automatically sail out of the park, and it is quite possible that it may hit any person in the crowd or any other person. Here from the part of the batsman no rule of negligence applies at all. There are many instances in international level of cricket where many time the ball hit a person sitting in the crowd and that person has been injured as well. It is not possible for a batsman at the time of doing batting to measure the ball regarding how far it will reach, the only thing upon which the batsman concentrate at the time of bating is to hit the ball so hard that it will not fall within the boundary of the ground, if it falls within the boundary the batsman could get caught out by the fielders, but if it goes beyond the boundary the batsman will get a six run. At the time of bating it is not possible for the person who is batting to decide the length up to which the ball could fly, if it supposed to be done then no one would have been a player like Sir, Donald Bradman or Ricky Luis Ponting.

In many famous case decision it also observed that negligence is applicable up to a certain level it and in some specific circumstances act of negligence is not applicable as well as the act may be exempted. In the famous case of Liverpool Catholic Club Ltd Vs Moor, it was observed by the Ld. Court that the nature of an act of negligence depends upon the act itself as well as the circumstances and the intention from the part of the defendant. While deciding any act of negligence it is have to be considered that the respondent actually had any intention to do so and the respondent percussively take the due care of what he is doing or not. But if any unfortunate event occurs by virtue of any act done with due care or any act led by the circumstances then it would not be an act of negligence but it shall be considered as an accident (Liverpool Catholic Club Ltd v Moor, [2014]).  

In the famous case of Reid v Commercial Club (Albury) Ltd, it was observed by the Honorable Court of law that, there is a liability which is known as occupier’s liability. It is the duty of the occupier to take due precautions and care in relation to the events which may happen in respect of the ongoing circumstances. The occupier is at a duty to protect himself as well as his belongings from any kind of unfortunate event rather any kind of accidents which may occur. Any occupier without fulfilling his part of duty is not entitled to get anything in against of the accidental act. The occupier has the liability to protect his belongings he cannot taken things for granted as like in spite of knowing the consequences not taking appropriate measures in relation to restricting the act which may again happen in the future course. Here, the occupier that is Mr. Smith was well known about the fact that a match is going on in his neighborhood and previous instances was also know to Mr. Smith, in spite of that he has not taken any measure regarding the safety or he has not even communicated to the club before that event regarding the safety measure or things to be look after by the club officials (Reid v Commercial Club (Albury) Ltd, [2014]).  

So, after the above discussion it can be said that negligent act can only be considered when there is no involvement from the part of the circumstances or situation in most portion (Oyston v St Patrick's College, [2014]). Another factor which is to be taken into consideration that whether the occupier of any property, who has suffered from any loss or injury due to such act of negligence, has taken proper precautions and due care of his property or not, if that person has not taken care of his property then this is a kind of negligence from the part of himself and by virtue of that he cannot claim damages (Echin v Southern Tablelands Gliding Club, [2013]).

 

References:

Echin v Southern Tablelands Gliding Club [2013].

Heath, J. (2009). Third transmission. Australia: Pan Australia.

Higgins, S. (2008). Eye of the beast. North Sydney, N.S.W.: Random House Australia.

Koziol, H., Schulze, R. and Antoniolli, L. (2008). Tort law of the European Community. Wien: Springer.

Legislation.gov.uk, (2015). Restriction of Offensive Weapons Act 1959. [online] Available at: https://www.legislation.gov.uk/ukpga/Eliz2/7-8/37/section/1 [Accessed 7 Mar. 2015].

Linden, A., Feldthusen, B. and Brecher, J. (2007). Negligence. Markham, Ont.: LexisNexis.

Liverpool Catholic Club Ltd v Moor [2014].

Moffatt, S., Fitzgerald, J. and Goh, D. (2004). New South Wales recorded crime statistics 2003. Sydney: NSW Bureau of Crime Statistics and Research.

Oyston v St Patrick's College [2014].

Peterson, D. (2013). Offensive Cyber Weapons: Construction, Development, and Employment. Journal of Strategic Studies, 36(1), pp.120-124.

Reid v Commercial Club (Albury) Ltd [2014].

Savarin, J. (2007). Sunset and the major. Sutton, Surrey: Severn House.

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