SCHOOL OF LAW
200432 Commercial Law
Quarter 1 2021
Assessment 2: Problem question (essay) (1500 words) (25 marks)
This document consists of 5 pages including this page.
PLEASE READ THE FOLLOWING INSTRUCTIONS AND INFORMATION PROVIDED CAREFULLY BEFORE ATTEMPTING THE QUESTION.
- INDIVIDUAL PROBLEM QUESTIONS
The answers are to be completed by an individual student. This assessment task has a maximum of 1500 words. Students who do not submit their own work, appropriately referenced, may be subject to student misconduct proceedings. Further information about referencing including resources are set out below.
All students are required to learn how to use Turnitin well in advance of the due date for submission. Difficulty using Turnitin at the last minute will not be accepted as an excuse for missing the deadline (except in the event of a verifiable problem with our systems at the relevant time).
Students MUST KEEP A HARD COPY of the answer submitted to Turnitin.
2. DUE DATE
11 pm Friday 5 March 2021.
3. RETURN OF ASSESSMENT MATERIAL
Your answer(s), with feedback, can be viewed on vUWS once they are released. Students will be notified via vUWS when this occurs.
4. CRITERIA AND GENERAL ASSESSMENT REQUIREMENTS
The following will be assessed in your answer:
Learning Outcomes 2 and 3:
- Identify and demonstrate understanding of key legal concepts.
- Apply knowledge and understanding of common law and statutory tortious, contractual concepts in order to analyse and solve practical problems.
Presentation & style:
- Organises a clear and coherent answer
- Write clearly, accurately and grammatically
- Punctuates appropriately.
Content and knowledge:
- Identifies and explains the relevant area of common law and statutory legal systems
- Integrates relevant cases and legislation to support their answer to the legal problem
- Applies the legal principles and legislation to the facts of the legal problem
- Concludes the answer to the legal problems, including any defences, remedies or penalties.
|Word length||A word limit of 1500 words has been set, which excludes references. The word limit will be strictly enforced. There will be a 1-mark penalty for every 100 words in excess of the word limit, or part thereof. For example, an essay that is 1851 words long will be deducted 4 marks. Please remember that this essay has been structured so that a well-considered and scholarly written essay may be achieved within the prescribed word limit.|
|Format||There are strict formatting requirements with which students are required to comply. The unit coordinator reserves the right to refuse to mark essays that are not submitted in accordance with formatting requirements: Do not manipulate the margins of the page.Use Arial 12-point font.Essays must be one and a half spaced or double spaced.Ensure your full name and student number appears on the footer of each page.Number all pages consecutively.Provide a reference list or bibliography.Answer format: Students should use the IRAC/ILAC method of answering the question, ie, Issue, Rule/Law, Application and Conclusion.NOTE: You must use decided cases and/or statutes to support your answers.|
|Referencing||Referencing must be in accordance with the Harvard WesternSydU style.|
|Only Electronic submission/ Turnitin||Students are required to keep a hard copy and electronic copy of all written work, which is submitted. The essay must be submitted electronically via the Commercial Law (PG) Essay Turnitin link on the vUWS site for this unit. Please read the Turnitin Instruction Manual prior to submission. Students may not hand in hard copies. No other method of essay submission will be accepted. Further information in regard to the|
|submission of the essay will be posted in the assessment folder of the vUWS page.|
|NO Essay cover sheet||Please do NOT affix an Essay Cover Sheet to your essay. By uploading a submission into Turnitin students certify that: (1) they hold a copy of the essay, if the original is lost or damaged; (2) no part of this essay or product has been copied from any other student’s work or from any other source, except where due acknowledgement is made in the essay; (3) no part of the essay/product has been written/produced for the student by any other person, except where collaboration has been authorised by the unit lecturer concerned; and (4) they are aware that this work may be reproduced and submitted to plagiarism detection software programs for the purpose of detecting possible plagiarism ,which may retain a copy on its database for future plagiarism checking.|
|Late submission||Late essays must be submitted to the Late Commercial Law (PG) Essay Turnitin link on the vUWS site for this unit. No other method of late essay submission will be accepted. A student, who submits a late assessment without approval for an extension, will be penalised by 10% per day up to 10 days, i.e. marks equal to 10% of the essay’s weight will be deducted as a ‘flat rate’ from the mark awarded. For example, as the essay has a possible highest mark of 25, the student’s awarded mark will have 2.5 marks deducted for each late day. Saturday and Sunday are counted as two days. Assessments will not be accepted after the marked assessment task has been returned to students, who submitted the task on time.|
|Extension of due date for submission||The essay is to be submitted via Turnitin by the due date and appointed time. Extensions will only be granted in the event of serious illness or serious misadventure (proved to the satisfaction of the unit coordinator) that prevents you from completing the assessment by the due date. If students need to apply for a short extension of time to complete an assessment item, they should complete the ‘Request for Extension’ form available from the vUWS website at Student Forms. This form needs to be submitted three days before the due date of the essay. An application for an extension does not automatically mean that an extension will be approved. Please notify your unit coordinator via email that you have applied, as notification of e-forms can take up to 48 hours. Where special consideration is sought for circumstances involving more than three consecutive days or more than five days within a teaching period, students should complete a ‘Special Consideration During Teaching Session’ application available through eForms via MyUWS.|
Marking criteria and standards:
|Fail (0-49%)||The student’s performance fails to satisfy the learning requirements specified. For example, poor knowledge or application of the law, irrelevant discussion, poor standard of presentation and inaccurate referencing.|
|Pass (50- 64%)||The student’s performance satisfies all of the basic learning requirements specified and provides a sound basis for proceeding to higher-level studies in the subject area. The student’s performance could be described as satisfactory.|
|Credit (65- 74%)||The student’s performance, in addition to satisfying all of the basic learning requirements specified, demonstrates insight and ability in analysing and applying relevant skills and concepts. The student’s performance could be described as better than competent.|
|Distinction (75-84%)||The student’s performance, in addition to satisfying all of the basic learning requirements, demonstrates distinctive insight and ability in analysing and applying relevant skills and concepts, and shows a well-developed ability to synthesise, integrate and evaluate knowledge. The student’s performance could be described as distinguished.|
|High distinction (85%+)||The student’s performance, in addition to satisfying all of the basic learning requirements, demonstrates distinctive insight and ability in analysing and applying relevant skills and concepts, and shows exceptional ability to synthesise, integrate and evaluate the law. The student’s performance could be described as outstanding.|
QUESTION 1 18 Marks
Patrick had always wanted to try para-sailing. Parasailing involves becoming airborne by means of a parachute being towed at high speed by a boat. Patrick attended the office at Sky Thrills Pty Ltd, a provider of para-sailing activities and training, with the intention of trying para-sailing. Patrick signed a contract which provided, among other things, for basic training to a satisfactory level of competence and a statement that para-sailing is a sport which carries risks of injuries. The contract did not provide for any waiver of liability by Sky Thrills for harm resulting from failing to exercise reasonable care and skill in the provision of this activity.
Patrick duly completed the required training and safety procedures. One of the safety procedures that was emphasised in training was only to use the parachute release lever while on the ground or in the water and not otherwise.
Finally, Patrick was ready for take-off. Although it was, at the time, a low tide, Sky Thrill’s operator, Robert, advised that para-sailing could be conducted safely regardless of the tide. With the boat slowly moving forward, the winch was set to slowly release the 150 metre cable attaching Patrick to the boat. Patrick then signalled his readiness and the boat accelerated.
Moments later, Patrick became airborne and, as the boat gathered speed, he rose higher and higher. Soon, he reached the maximum height of around 150 metres and was having a fantastic time gliding above the water as he was pulled along by the boat.
Suddenly, the boat came almost to a standstill, swerved around, and took off in the opposite direction to which it had just been travelling. Just as suddenly, Patrick was jerked in the new direction being followed by the boat. This rapid action caused Patrick’s head to be flung backwards, resulting in a neck injury. Sensing that all was not well with the activity, Patrick decided to throw the parachute release lever.
Instantly, Patrick fell, at least 100 metres, hitting the water and suffering four broken ribs.
What had actually happened was that Robert had mistaken some sea-weed for a submerged wreck. Consequently, he took emergency evasive action to avoid it.
As a business advisor to Sky Thrills Pty Ltd, the directors have approached you to advise the company on the following issues prior to seeking formal legal advice:
- Is Patrick likely to succeed in a negligence action against Sky Thrills Pty Ltd and/or its operator, Robert? 12 Marks
- Will Patrick have to bear any liability for negligence as a result of this incident?
In your advice refer to relevant statute law and case law in negligence law only.
QUESTION 2 7 Marks
Jacob is interested in buying a small retail clothing business called ‘Sport ‘n Surf’ in Cronulla. One Saturday, Jacob runs into two former school friends, Rose, who owns a hairdressing salon in Cronulla and Geoff, who is a business broker specialising in matching prospective business buyers with sellers in the hotel sector. Jacob tells Rose and Geoff that he is considering buying the business. Rose tells Jacob that Cronulla is booming and that the business is sure to do well, as everyone in Cronulla surfs and plays a sport of some description. Geoff, who is not an accountant, offers to have a look at the books of the business and give Jacob his view. The books of the business have been prepared by Water Accounting Services, the business’ usual accountants. Geoff inspects the books and tells Jacob that the business is doing well and that it made a profit of $120,000 last year. In fact, due to an error by Water Accounting Services, the profit was reported as $120,000 when in fact it was $12,000. Geoff advises Jacob that based on the past profit disclosed in the accounts and his own observations of the business, the purchase price sought by the sellers at $250,000 extremely reasonable.
Jacob bought the business for $250,000 and at the end of twelve months is very disappointed to find that his profit was only $12,000. He learns from other business brokers that a reasonable purchase price for the business, even based on a profit of
$120,000 would have been $200,000, but clearly less if based on a profit of $12,000.
Discuss whether Jacob may have been owed a duty of care on the above facts, and if so, by whom. Fully explain your answer.
QUESTIONS END HERE.
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