QUESTION 1 and QUESTION 2
- Whether Andy can file suit against Lulu and/or Sparkie Store in negligence?
- Whether Andy is entitled to claim for compensation?
- Whether there have been any changes if Andy was not present at the spot of accident?
Law of Negligence and Limitation of Liability Act 2008
In the light of the present facts and circumstances of the case, section 9 of the Act1 tells about the other related for the action of negligence, likewise the weight of taking it safe to maintain a strategic distance from a danger of damage incorporates the weight of avoiding potential risk to evade comparative dangers of mischief for which the individual might be mindful additionally, the way that a danger of risk have been stayed away from by accomplishing something in an alternate manner doesn’t itself offer ascent to or influence obligation for the manner by which the thing was done, and the ensuing making of move that would have dodged a danger of mischief doesn’t of itself offer ascent to or influence risk in regard of the risk and doesn’t of itself comprise an affirmation of risk regarding the risk. It is also mentioned under the Act2 that a person who owes an obligation of care to someone else to give a notice or other data to the offended party in regard of a hazard or other issue, fulfills that obligation of care if the litigant takes sensible consideration in giving that notice or other information3. In the case of Winterbottom v. Wright4 the court held the same and explained the term negligence and duty of care. In the present case Andy is at a hardware shop, Sparkie Store, to get some electrical tape and an electric drill. As he gets the drill a forklift truck at the store driven by Lulu comes around the bend and hits Andy. The forklift truck was driven excessively quick by Lulu and according to the strategy of the store these forklifts are to be driven gradually all the occasions in the client territory of the shop to forestall mishaps and Lulu knows about the arrangements of the store. Andy has got injury on his back and has endured $2,000 in the clinical costs, additionally, Andy is a soccer player and plays Futsal, due to the injury Andy misses its match following day whose triumphant cost was $10,000 for a group occasion to Port Macquarie. Section 8 sub-section 2 of the Act5 tells about that the court shall consideran individual sensible in the event that the person has played it safe against a danger of mischief, is likelihood that the damage would happen if a consideration were not taken, the reality of the mischief, the weight of avoiding potential risk to stay away from the danger of damage, the social utility of the movement that makes the danger of mischief, if these are not demonstrated to demonstrate the case of the offended party. In case of Donoghue v. Stevenson6, the court held that carelessness or negligence given in misdeed is unmistakable, furthermore there is no need of any legally binding connection between the gatherings. Under section 12 of the Act7 burden of proof is on plaintiff to prove on the equalization of likelihood any significant realities to any data of the causation of an issue. In the current issue Lulu knew about the approaches of the store but didn’t focus on the referenced principle of not driving the forklift quick and rather it must be driven delayed on the clients territory, realizing this Lulu abused the strategy and because of which met with a mishap with Andy, the demonstration of Lulu obviously ends up being careless and break of obligation of care, as it was the obligation of Lulu to deal with the speed and stay away from mishap with clients. Along these lines, the lose exposed and endured by Andy is because of the mishap caused at the store in view of Lulu being careless which made him cause injury at the rear of Lulu and furthermore, as a result of which Andy couldn’t play his soccer coordinate following day and furthermore endured the loss of $10,000 and a group outing to Port Macquarie.
Further, as an advisor to Andy, he can record suit against Lulu on the grounds of Lulu being careless and has penetrated the obligation of care because of which Andy needs to endure injury at the back and uncovered clinical costs of $2,000, additionally Andy couldn’t be a piece of the match following day whose triumphant cost was $10,000. Lulu has penetrated the standards of area 8, 9 and 10 of the Act. Besides, Andy is qualified for guarantee for pay from Lulu for the misfortune Andy endured due to Lulu’s careless conduct at the store. Section 13 of the Act8 defines about the term obvious risk, a conspicuous risk to an individual who endures hurt is a risk that in the conditions would have been clear to a sensible individual in the situation of that individual, evident dangers incorporate risks that are patent or a matter of common information, a danger of something happening can be an undeniable hazard despite the fact that it has a low likelihood of happening. Likewise, a risk can be an undeniable risk if the risk isn’t noticeable, obvious or truly perceptible, this plainly shown regardless of whether Andy was absent at the spot of occurrence the circumstance with Andy may have been diverse however same with some other individual present at a similar spot where the incident occurred.
Abovementioned facts and circumstances clarifies that Lulu has committed an offence of breach of duty of care and an act of negligence also have violated the policies of the store by over speeding the forklift truck and meeting with an accident because of it with Andy, therefore, Andy can take legal actions against Lulu for the accident, furthermore, Lulu is liable to pay compensation to Andy for all the damage caused and suffered by Andy.
- Whether the mortgage contract between the bank and Stella and Pedro enforceable?
- Whether there is any contract between Paul and his parents for the supply of timber?
- Australian Contract Law
- Australian Consumer Law
In the light of the present facts and circumstances of the case, the contract law concerns the legitimate authorization of guarantees that were made as a major aspect of a deal openly went into, shaping a lawful relationship called contract. Basics of a valid agreement or contract is proposal, acknowledgment, assent, common thought, and parties ought to be of sound mind for valid contract or agreement. Contract is comprehensively partitioned into five classifications, of development, degree and substance, avoidance, execution and termination and remedies. It is a set of promises which is lawfully official if the previously mentioned measures meet with the aims of shaping a lawful agreement and contract. In the current case Paul is running a fruitful structure organization in Sydney called Build4U. It has likewise been chosen for a TV advancement highlighting Paul as a manufacturer who was utilizing economical structure materials. One of his significant providers of building supplies were Paul’s folks, Stella and Pedro. Stella and Pedro possessed 25 acers of land on the edges of Sydney where they maintain a fruitful business selling reused fabricating materials. Stella and Pedro don’t know English as they were never instructed how to peruse. After the TV advancement Build4U improved in business and as a result of which Paul chose to buy a business working to redesign. Paul expected to make great benefit yet required an advance of $1,500,000 to purchase the structure. Paul drew nearer Westpac Bank which required a home loan to make sure about the credit. Paul approaches Stella and Pedro for gracefully reused wood for redesign and Paul will pay $100 per bit of lumber. Stella and Pedro concurred, and said they would expand their request for lumber and could flexibly 50 bits of wood. Paul concurred on that he will pay Stella and Pedro $5,000 consistently for 50 bits of wood. Paul additionally referenced that he needed to settle on a consented to business arrangement contract. Paul additionally wanted to control his folks Stella and Pedro into selling their property. Paul asked Stella and Pedro to sign an archive. Stella and Pedro thought it was an agreement for the gracefully of lumber for the following a year and marked the reports however the archive marked were of home loan contract with Westpac Bank selling their property as security for the $1,500,000 advance. The matter of Paul didn’t run well and Paul couldn’t sell the incomplete structure and reimbursements of credit. The bank began the procedures to recoup the advance by the offer of the Stella and Pedro Paul’s parent’s property. According to the Law of Contract of Australia is clearly defined that a valid contract requires a mutual consent and consideration of parties to enter into a contract, in the present case there was no mutual consent and consideration also, the party was not informed about the contract of mortgage they signed. Stella and Pedro were not even informed about the contract of mortgage with the Westpac Bank and did not have any knowledge about the documents as they assumed about that the contract, they are signing is the contract they discussed with Paul for supply of timber for next 12 months. As per the Act9 a mortgage contract requires consent of a current premium holder to realize that the gathering going into such agreement knows about any exchange that may influence their advantage, along these lines, there was no assent and thought in regards to the home loan contract with bank. Segment 18 of the Act precludes the direct that is deluding or is probably going to misdirect the announcement of honesty of proclamation made which isn’t a resistance. In case of Concrete Construction Pty Ltd v. Nelson10, the court held that both the parties should agree to the terms and conditions of the contract and should have knowledge about the contract, and the contract made should be bonding and then it shall be considered valid contract. Section 29 misrepresenting of a contract is providing inaccurate information that induces an individual to enter into a contract. A contract here is transfer of rights, property, and consideration between parties. In case of Butcher v. Lachlan Elder Realty Pty Ltd11 the court held that the information about the contract and parties should be in knowledge to the parties, and the parties entering into the contract should be competent enough to understand and react to the terms and conditions of the contract, the parties should be of sound mind and should be capable enough to understand the mentioned details in the contract before entering into it. According to the present facts and circumstances of the present case there is no legal contract between the parties Stella and Pedro with the Westpac Bank as the facts and contract was not cleared and in knowledge of the parties, an act of misrepresentation and misleading of the contract was done to them by Paul. The contract between Stella, Pedro and Westpac Bank is not enforceable as one party in the contract did not have any knowledge about the terms and conditions mentioned under the contract. The signature was taken by Paul by misrepresenting the facts of the Contract and by not informing them about the mortgage contract with the bank.
Abovementioned facts and circumstances of the case clears that the contract between parents and bank is not enforceable and valid as there was no consent and mutual consideration between the parties also parents were not competent parties to enter into the contract as they has no knowledge of English and terms and conditions mentioned in the contract. They faced misrepresentation and misleading of the facts of the contract by Paul and because of their false assumption Paul took their signature and did not informed about the mortgage contract with bank. There is only verbal contract between Paul and his parents regarding the supply of timber and not the written contract as Paul asked to make a valid business contract regarding the same but did not get it ready and so the contract with Paul and his parents is invalid.
- Australian Contract Law
- Australian Consumer Law
- Law of Negligence and Limitation of Liability Act 2008
- Law of Property Act 1936
- Donoghue v. Stevenson
- Concrete Construction Pty Ltd v. Nelson
- Butcher v. Lachlan Elder Realty Pty Ltd
1 Law of Negligence and Limitation of Liability Act 2008
3 Section 10,
4 152 E.R. 402, (1842) 10 M.& W. 109
5 Law of Negligence and Limitation of Liability Act 2008
6  UKHL 100
8 Law of Negligence and Limitation of Liability Act 2008
9 Law of Property Act 1936
10  HCA 17; (1990) 169 CLR 594 (3 May 1990)
11 High Court of Australia  HCA 60
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