TRIMESTER 1 2020 FINAL EXAMINATION

Name: Owais Ahmed Choudhry

Student ID: 1495316

SUBJECT NAME: Business Law

SUBJECT CODE: BBC131

TIME ALLOWED: 3 hours

PERMITTED MATERIALS:

 This is an Open Book Exam

INSTRUCTIONS FOR STUDENTS:

 You do not require a separate answer booklet. Please type your responses in the
spaces provided.
 Type your full name and ID at the top of this page.
 This examination consists of 6 questions.

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Question 1 (15 marks) 2 pages

Jason had been at a work Christmas party and he had drunk 8 beers. He decided to drive home
as it was raining heavily outside.

Kylie was also at the Christmas party and saw that Jason was having a good time and a little
drunk.

Jason lived in the same suburb as Kylie.

As it was raining heavily Kylie asked Jason if she could get a lift home.

Jason smelled of alcohol and started driving erratically on the way home. He lost control of the
car on a corner and crashed into a tree injuring himself and Kylie.

a) Does Jason owe Kylie a Duty of care?

b) Has Jason breached his duty of care?
c) Are there any defences Jason can raise in the matter to reduce or limit Kylie’s claim?
d) If another driver had forced Jason off the road as he/she was on the incorrect side of the
road would that alter your answer and how?

[Answer here]

No, Jason does not owe Kylie a Duty of Care as Kylie already knew that Jason was drunk, still
she asked to take the lift from him.
Under tort law, a duty of care is a civil obligation placed on a person requiring obedience to a
norm of fair treatment when undertaking any behaviour that may fairly be assumed to damage
another. This is the first element which must be identified in order to pursue action in the case
of negligence. The plaintiff must be willing to prove the duty of care enforced by the statute
where the offender has breached. In addition, breach of a duty can be liable to an individual's
responsibility. The obligation of care may be enforced by statute between persons that have no
existing direct connection (family or contractual or otherwise) but ultimately are connected in
some form as established by common law (i.e. case law). In the present case, Jason and Kylie
were nor family members and Kylie decided to took lift herself from Jason despite of knowing
Jason’s condition and it was obvious that Jason could not drive because of two major reason;
1) He was heavily drunk and 2) it was heavily raining outside. The heavy rain could have
caused accident to any normal driving person too.
No, as Jason was drunk heavily and it was Kylie’s mistake to ask him for the lift. Breach of
duty of care would have occurred if Jason had failed to fulfil his responsibility or duty of care
but in this case, Jason did not have any responsibility of Kylie.
"Breach of the duty of care" happens anytime one fails to perform his/her duty of care to
behave fairly with any way. There are a number of specific cases in which one individual owes
an obligation of responsibility to another, and there could be a range of circumstances in which
that duty is breached. Generally, if the individual fails to behave in a responsible way to avoid
possible harm to another, the duty of care is breached. That is usually a matter of fact for the
jury to determine. In Jason and Kylie’s case, Jason did not have any responsibility of Kylie. It
can be assumed that Jason must be unconscious after being heavily drunk so he did not know
that Kylie asked him for the lift. Hence, Jason did not breach the duty of care.
Jason can raise “Volenti Non Fit injuria” to limit Kylie’s claim. In the case of “Volenti non fit

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 injuria,” if the complainant has consented to an infringement of free content, either implied or
express, without any threat of deception or force, with voluntarily recognition of the harm, then
he/she has no right to claim the defendant. In addition, there must be a duty on behalf of others.
The defence of Volenti is now prohibited by regulation where a passenger becomes hurt when
a lift from a drunk car driver had been decided to take place. In this famous case, however, the
application for a drunk passenger who took a lift from the drunk pilot was held in "Morris c
Murray [1990] 3, All ER801 (Appeal Court)."  In the ensuing collision, the pilot died and the
wounded passenger sued his assets. While he guided the pilot to the air base (which was closed
at that time) and assisted him to start his engine and switch his radio, he claimed that he did not
consent to the danger associated in flying openly and willingly. The Court of Appeal found that
there had been consent: the man was not so drunk that he did not understand the risks of a
drunk pilot taking off, and his conduct leading up to the flight indicated that he had willingly
accepted such risks.
Same happened in the case of Jason and Kylie. Kylie willingly took the risk of riding with
Drunk Jason. She must be held responsible for her action.
If another driver had forced Jason off the road as he/she was on the incorrect side of the road,
that would be the mistake of that incoming driver from wrong direction. In that case too, Jason
would not have a breach of duty of care, however, that driver must have then the breach of
duty of care. In that case, Jason could raise the defence of “maxim ex turpi causa.” If the
complainant is involved in an event or actions of misconduct, he cannot claim the damages.
Neither Kylie, nor the wrong coming driver could claim any breach of duty of care to Jason.

Question 2 (15 marks) 2 pages

Jarrod sent a letter to his cousin Billy who lived on a farm offering to sell him his ride on
lawnmower for $500 (it was valued at $2000). Billy received the letter and immediately wrote a
letter accepting the offer and put the letter in the mail box when he went to town on Monday the
1st of August.

On Wednesday the 3rd of August Jarrod was talking to his friend Colin and mentioned that he
was trying to sell his ride on lawnmower as he no longer needed it. Colin offered to buy it for
$700 and Jarrod accepted. Colin gave Jarrod the $700 and Jarrod said he would arrange for
delivery the next day. That afternoon Jarrod received the letter from his cousin Billy which said
he was happy to buy the mower for $500.

Advise Billy,

a) Does he have a legally enforceable contract?

b) What are the principles of law that are relevant in this case?
c) Are there any cases that assist your arguments?

[Answer here]

Yes, Billy has a legally enforceable contract.

A contract applies to a contract between parties or legal institutions under which one party
offers to deliver such services and products in return for payment or other goods or services.
This is an enforceable contract which gives the contracting parties the confidence that their

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 rights will be legally covered. In order to preserve the rights of each side, the contract must be
legally enforceable in compliance with the law of the State. The contract guarantees the parties
concerned that their arrangement will be upheld and that they have the ability to seek liability
in the case that the other party refuses to meet with the arrangement. This offers protection in
contractual affairs and allows the parties to respect their obligations. As such, it is important to
insure that documents are correctly written out such that they can be followed by a court of
law.
In order to establish a "legally enforceable contract," an offer, approval and exchange of views
between the parties concerned must be made. In order to establish a legally enforceable
contract, a person must have the legal power or potential to do so. For example, with several
exceptions, a minor may not have the moral capacity to be a party to a deal. In fact, a contract
is technically enforceable even where there is a sharing of interest. A legally binding document
could either be oral or written. However, based on the form of deal, such contracts can have to
be signed in order to be deemed legitimately enforceable. These are statutory words with
implications that are vague or unfamiliar to non-lawyers and these can have an effect on the
penalties and recourse arising in the case of a violation of the contract. Such terms hereby
include: “default, Liquidated damage, and Special damage.” One side must make an offer first,
in order to form a "contract."  This is achieved by explicitly communicating a desire to partake
in a binding arrangement that is constrained by particular conditions. The offer will be
immediately acknowledged by the receiver of the deal, without needing to do something more
than embrace it. The group is obligated to consent to accept it. A fully enforceable deal can be
established if the bid is approved simply and unconditionally, without any limitations. The
party approving the offer is not permitted to significantly alter the conditions of the contract
and will approve the offer until it expires. If a time period is defined, the bid must be approved
within a fair timeline.
A contract is legally binding even if it includes an exchange of benefit or if it is of interest to
all parties. The party presenting the bid shall be given a profit, while the party accepting the
offer shall incur an equal expense. As per the statute, the value just needs to be appropriate,
which implies that the party is only expected to provide anything useful as a consequence of
the offer. In fact, a contract must conform with the Deception Provision of the "Uniform
Commercial Code," which mandates that all forms of contracts be published in order for them
to be technically enforceable. A lawful purpose is another prerequisite for a legally binding
contract. This relates to the purpose of each side, where the contractual provisions will
conform with the laws of the State in which the contract is concluded. Failure to define a
specific reason would make the contract void or not legally binding.
In this case as the offer was accepted by Billy, the contract had been formed between Jarrod
and Billy.

Byrne & Co v Leon Van Tien Hoven & Co [1880] 5 CPD 344, On October 1, the defendants submitted
a note to the claimants promising to deliver 1000 tin cans. The defendant resided in Cardiff and the
appellant stayed in New York and letters were delivered in about eight or ten days. The claimants got
the letter by telegram on 11 October and by mail on 15 October the same day. The defendant however
submitted a letter on October 8 to the claimant, which rejected their offer, and on October 20, it arrived
with the plaintiff. For the failure to produce the covers, the claimants demanded damages. The court
needed to determine if it was appropriate to revoke the bid for the selling of products. The court should
decide whether the deal was decided upon by the complainants in their October 1 letter or if, by letter
of October 8, the defendant had successively withdrawn his bid. The Court ruled that the withdrawing
of the offer was unsuccessful because on October 11, when the other party agreed to the offer by letter
dated October 1, a contract had been signed between the Parties. Depending on this, the request for the

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 selling of merchandise was established that a secondary document, which will not arrive until the first
document has been responded to and accepted, should not be removed. The court decided against the
claimant and offered the perpetrator his bills.

Question 3 (15 marks) 2 pages

Victor buys a hover board from Clever Hovers Pty Ltd based in Australia.

One night when Victor is charging the battery of the hover board a fire starts as a result of the
battery getting too hot.

The fire destroys the hover board and all Victor’s furniture.

Advise Victor
a) What provisions of the Australian Consumer law would be best used to claim
damages?
b) Why is using the ACL a better legal remedy than suing for negligent
manufacture?
c) Are there any cases that assist your arguments?
d) If only the battery didn’t charge properly, what would be the most relevant
provisions of the ACL that Victor could use to get a replacement Battery?

[Answer here]

A simple system of protection (or rights) for consumers who pick up products is provided by
Australian Consumer Law (ACL). One such commitment is to insure that the products are of
'reasonable standard.' This promise requires that the products are as secure as a reasonable customer.
Where a company refuses to satisfy a customer quality guarantee because it is defective, the statute
states that this is a substantial mistake and the user has the freedom to reject the company and choose
between compensation, replacement or repair.

a) If the good does not achieve the customer standard promised as it is unsecure, the statute specifies
that it is a significant loss and that you are free to deny the good and apply for a refund, substitute or
reparation. The definition of uncertainty is not specified by the ACL and its normal meaning
corresponds to the aspirations of the group. In reality, it is possible that members of the society would
find a good as being healthy because it is unlikely to inflict real or future injury, loss or threat. In the
end, it is the Court's job to decide whether a good is healthy or not. However you should pose questions
with the seller or supplier whether a drug is dangerous. In determining that a product is free, the ACL
notes the fair customers take into consideration: • Section 54(3) (a) ACL specifies the existence of the
product which may be the probable recipient of a commodity and its circumstances; • Section 54(3) (b)
ACL notes that the interest of the commodity is the same.

b) The most reasonable possibility of battery catching fire is because of the nature of good, which
occurred due to overcharging leading to overheating, therefore ACL is applicable instead of negligence
of manufacturer. This is true also because of unavailability/unsure of information of the extent of
overcharging.

c) No such cases are available with the exact nature in context of legal background. Such issues are
resolved between consumer and manufacturers in reasonable time.

d) The ACL distinguishes between 2 types of faults: (i) a major failure; and (ii) a non-major failure.
If the commodity has another concern not addressed by the above "big question," it may be called a
minor issue. It does not do, for example, as it is supposed to do but can be solved easily and rapidly.
See our customer assurances, which immediately adhere, for more detail on minor issues. As the
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 problem can be fixed in small time with replacement so it's non-major failure according to ACL.

Question 4 (15 marks) 2 pages

“Fizzy Mineral Water Pty Ltd” manufactures bubbly mineral water. They have a contract with
Jamison’s Bottle tops to supply all the lids to the bottles.

A batch of the lids has a fault in the thread of the lids allowing air to enter the bottle of mineral
water and causing the mineral water to lack any bubbles.

a) What provisions of the Australian Consumer law could Fizzy mineral water use in an
action against Jamison’s bottle tops?
b) Are there any cases that assist your argument?
c) If the tops were not faulty and yet Fizzy mineral water advertised as lightly sparkling
but there were no bubbles what provisions of the Australian Consumer law could the
Australian Competition and Consumer Commission seek to rely on?
d) Are there any cases that are similar?

[Answer here]

Question 5 (8 marks) 1 page

In a negligence action which are the most important defences that are likely to be used by the
lawyer for the defendant and what is the outcome with each defence if used successfully?

[Answer here]

The defendant may seek to negate some item of the context of the action of the complainant of order to
protect himself effectively against a claim for negligence.

Three of the most commonly known theories are comparative fault, contributory negligence and
assumption of risk. For example, if the other side was negligent too, the defendant is not considered to
be completely responsible. The foregoing are listed and other protections against accident charges.

Contributory Negligence:

One of the most famous defence technique against negligence lawsuits is putting the plaintiff to
contributory negligence. Contributory negligence takes effect anytime the actions of a claimant slips

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 below a certain level that is appropriate for the safety of the claimant and this behaviour acts in
combination with the negligence of the claimant to damage the claimant.

In the legal cases of contributory negligence, the amount given to the defendant is limited to the same
degree as is considered to be a liability. If, however, an applicant is deemed to be 40 percent
responsible, his reward is diminished by 40%.

Comparative Negligence:

Contributory negligence has shown extreme consequences in some cases and several states have
substituted practice with a comparative negligence solution. The comparative negligence theory limits
the compensation of the plaintiff by the amount of the defendant's losses.

While the success of this defence technique is not often possible to foresee in particular situations, they
are particularly frequent in road traffic injuries and, to a lesser degree, workplace injuries-so to what
degree failure by a complainant is perceived to have led to the injury can have a major effect on the
injured party's claims.

Assumption of Risk

If a person assumes the possibility of an obviously hazardous incident but nevertheless carries out the
action, he or she will not be entitled to claim liability for an accident. The complainant may hold
actual, factual awareness of the danger involved in the case in order to enforce this theory. The
candidate will therefore recognize the danger inherent in the operation on a mutual basis. The defence
technique of "assumption of risk" will not be applicable to unknown or additional dangers.

Question 6 (7 marks) 1 page

How does the law treat a “restraint of trade clause”?

[Answer here]

A contract of employment contains a "restraint of trade" clause to safeguard the rights of the company
when an individual exits their firm. Such provisions are often included in arrangements involving
professional and senior employees and practitioners and often in distribution deals for companies.

These clauses are governed under the Competition and Consumer Act 2010 in all of the Territories and
States. The only jurisdiction that has specific laws on restraint of trade clauses is New South Wales.
The Restraints of the Trade Act 1976 include these laws.

In the first instance, these clauses are, by their definition, unenforceable and void. However,
the statute recognizes that a restraint of the contract provision is constitutionally enforceable,

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 given that it is intended with a legitimately valid purpose which the employer (or former
employer) intends to defend. It must be shown by the employer (or previous employer). If it is
reached, an individual may prove that the provision is not in the public interest.

If the restraint of trade clause is enforceable, it must be complied with, otherwise a punitive
claim or an order prohibiting the employee from committing more violations will be issued to
the employer (or former employer).

In fact, a trade agreement requirement must be fair in order to be constitutionally enforceable. This
ensures that an individual must show that it has a compelling purpose in enforcing retention and that
retention is not more comprehensive than fair. Restrictions must be tailored according to the employer's
specific need to restrict the actions of the position of the geographic area. Generally, maximum limits
are restricted to 3 to 12 months, although the new legislation notes that, under certain cases, the courts
reserve the power to extend longer terms.

In one of the case recently handled by Southern Cross Computer Systems Pty Ltd v Palmer, the
Supreme Court of Victoria; IT expert was stopped by the Supreme Court despite maintaining a four-
year period of restraint.

These clauses are also found to be drafted with an intention to enforce various levels and degrees of
restrictions. This clause can contain, for example, many territorial constraints of differing levels of
seriousness. Now these are called the cascading clauses because in certain states and regions they are
made up in this manner as it enables courts to find some aspects of the proviso void, and enable the
correct sections continue to work.

END OF EXAM

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