Solution Code: 1IHD

Question:Law

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Law Assignment

Assignment Task

Task: 1 Marcus is a senior investment banker at the prominent Australian bank, Eastpac. He drives a very expensive car to work and parks it in ‘Park Safe’, a secured parking bay in Sydney’s CBD. Upon entering the car park an attendant hands Marcus a ticket. The ticket indicates which parking space he has for the day, along with the date and time the ticket expires. As Marcus occasionally works until the early hours of the morning, he always purchases the full-day ticket, knowing that Park Safe has an attendant on duty 24 hours a day. However, Marcus does not check the back of the ticket which lists, in substantially smaller print, a number of items, including the following:

Park Safe takes no responsibility for any damage caused to any vehicle, parked or otherwise on Park Safe premises, however such damage may be caused. Occupants use Park Safe at their own risk.

Marcus parks his car in the designated spot, locks it and walks to his office. Upon his return from work later that day, Marcus goes to retrieve his vehicle and notices both back lights have been smashed. He then approaches the driver’s door and notices scratch marks along the paintwork and a smashed window. When Marcus opens his car he finds that the glovebox has been forced open and that several items are missing. Outraged and upset, Marcus leaves his keys inside the car and goes to the attendant’s desk to inquire about the damage. He is there for 20 minutes and in that time his car is stolen. Marcus wishes to claim full compensation for the value of his vehicle from Park Safe. His car insurance had expired a few days prior to this incident and he had not had time to reinsure the vehicle. Advise Marcus. Task: 2 Andrea, a primary school teacher, has just discovered a popular online retailer by the name of ‘QuickBuyListen.com’. The website requires her to create an account where she can download music for $1 per track and upload the song to her mp3 player or smart phone. Eager to get started, Andrea types in her details and fills in the form relatively quickly. There is a lot of small text on the screen. She is required to scroll to the bottom of the page and click “next” several times before her account is created and linked to her email address. Andrea has used the service regularly over the past few months. However, she has recently received an email stating that she has been undercharged for each track and that an additional fee of $200 will be withdrawn from her account at the end of the month. Andrea replies by email to QuickBuyListen.com, stating that she had done nothing wrong and that she paid the price on the screen for each track. She does not receive a reply. Andrea withdraws all of the funds in the bank account linked to her QuickBuyListen.com account and has been informed by the bank that she will have to pay a $35 dishonour fee for not being able to meet the payment instruction from QuickBuyListen.com. Andrea is furious. She is in your office saying she never signed anything and that this entire system is a complete scam. She wants to have the $200 fee waived and the $35 compensated by QuickBuyListen.com. She also wants $1,000 for the emotional stress this has caused her. Advise Andrea Task: 3 Matthew, an experienced driver for an express postal service, has been doing the Sydney CBD route for many years. His job is highly stressful as his employer’s business model focuses on being the fastest delivery network in all of Sydney. Matthew has grown accustomed to taking calls whilst driving his van and is paid handsomely for his services. One day Matthew is called onto one of the busy inner-city routes. He picks up the goods from the supplier and begins driving to the delivery point. On his way he receives a call from his employer and as he reaches down to take the call he realises there is a car coming towards him in his lane. Matthew swerves to miss the oncoming car but, in the process of doing so, mounts the kerb and collides with a telegraph pole. Matthew is rendered paraplegic as a consequence of the car accident. Although no one else was injured, the force of the collision also causes the telegraph pole to fall over and hit a shopfront, resulting in damage worth many hundreds of thousands of dollars. The electricity supply is cut to the street because of the downed telegraph pole. It takes several days for the electricity to be restored, causing problems for all of the businesses in the street. Each of the affected businesses are pursuing both Matthew and Matthew’s employer for damages for loss of business. The owner of the business whose shopfront was damaged is also suing both Matthew and Matthew’s employer for the damage caused to the shop. Although Matthew has been able to obtain workers compensation he also wants to bring an action against his employer for unsafe working conditions and sue the driver of the other car for negligence. Matthew claims that a combination of these two factors caused the accident. Advise all parties of their likelihood of success.

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Solution:

LAW 8500 –Australian Commercial and Corporations Law Solution: 1

Issue	There were no signed receipts as a proof to avoid the fault and here the back side of the ticket was not mentioned by the attendant to aware Marcus. Here the full car compensation was charged by Marcus to the Park Safe authority.
Rule	? Exemption or the Exclusion clause.
Application	? With the help of the exemption clause not misrepresentation can take place. ? No parties will be responsible for the damage is the clause was made. ? The liability cannot be included by applying this clause.
Conclusion	? Damage cannot be claimed by Marcus hence he should claim for a new car. ? The tickets must be signed by the parties to avoid the miss deed.

Table 1: IRAC (Source: self-developed) Issue:

Whether exclusion clause is part of the contract?
How does exclusion clause cover the value of car?

Rule: Exemption clause must be applied here through which the both parties get benefited and the negligence cannot occur here. This kind of clause is based for avoiding the misrepresentation hence the liabilities are also excluded by applying this clause. In this way if the exemption clause is not maintained then the sufferer party has a right to claim for the money. In this kind of clause the signed receipt acts as a proof to avoid the misdeed. Civil law (Wrongs) Act 2002: In this act there are several common law principles which is helpful for the governing the general causes of action in negligence in various circumstances to a plaintiff’s negligence claim. Application: In this case rule of exclusion clause can apply. As a witness Marcus can show the ticket to Park Safe Premises. Both parties are equally liable for exclusion clause for breaching the condition. The exemption clause is effective for avoiding the fault. Marcus keeps his car every morning for the whole day and the attendant provides a ticket to him. Marcus was not aware of the back side of the ticket where several conditions were written. In this case more focus is provided towards the exemption clause as the Park Safe does not provide any information regarding the backside of the ticket. This ticket purchased by Marcus is the main cause by the exclusion clause. In this case study the attendant takes an important role for the occupant to let them know about the details for the norms and decorum of the parking zone. Thus there is contractual obligation for the authority by not doing signs for a proof. According to the clause the car parking zone must do signature to avoid the problems and also for making the occupants aware. Marcus wants the compensation for his car but the car parking authority do not want to give any damage cost. The attendant must mentioned about the backside rules and norms of the tickets. For this reason as there is absence of the exemption clause then the car authority must pay the compensation to Marcus. Hence the signature must be maintained between the two parties for avoiding the misdeed. For example similar case has been cited in the appendix: where there is also absent of the signature based upon the exemption clause. The document here must also be handed over to the party for avoiding the frauds. In this way here the conditions contract is also appropriate for the time of signing. In this similar case it has also viewed in Toll (FGCT) Pty Ltd (refer to appendix). Hence it can be said that the car parking committee should provide a token copy with the help of the exemption clause so that the problems for the organization as well as the parties can not take place. This is also helpful to keep proper terms between the parties. Here as there the no signing criteria hence the authority should maintain the clause. This will be helpful for excluding the liabilities and in this way the problems are also can be avoided. In this case as no exemption or exclusion clause is included here for that reason the Park Safe must pay the damage or the compensation cost to Marcus. It can also be said that if the Park Safe is not willing to provide for the fault then Marcus can claim for a new car to them. Hence, the exemption clause takes an important role for the development of the organization and also to make healthy relationship among the two parties. Marcus who is an investment banker of Australia he uses to park his car in the early morning in ‘Park Safe’ for a regular basis. He purchases the ticket for the whole day and he went for his office. He often purchases the tickets for full day basis as he knew that the attendant is present in there all time. After the completion of his working shift again the attendant gives his car back. Marcus knew that the Park Safe is safe for the occupant those who parks the car. There a small print out were made for the ticket provided by the Park Safe. In the back side there were several conditions were given by the authority such: for any damage the car parking authority is not responsible and the occupant must keep their cars at their own risk. Marcus was not aware of the back side of the ticket. One day after coming back from office he noticed that both of the backlights have been smashed and there were several scratches and paintworks in the windows. Several items inside the cars were also missing. When he went to the attendant for the inquiry by keeping the car keys inside the car after coming back he saw that his car was stolen from the parking zone. Several issues are included in this particular case study which is: there were no signed contract between the Marcus and the Park safe authority. The conditions of the back side of the ticket were not mentioned by the attendant for which Marcus were not aware of this things. There were no signed documents between the two parties for which this misdeed arise. At last it can be seen that the authority do not want to pay for the damage hence, Marcus can claim for a new car from the Park Safe zone. Conclusion: Here it can be concluded that in this case study Marcus has claimed for damage but the car parking authority do not want to pay the compensation hence Marcus should claim for a new car to the Park Safe committee. It can also be said that the exemption clause must be applied for the car parking authority where a signed receipts must be made as a proof to avoid the misrepresentation and here as the clause is not present hence the Park Safe must provide a new car to Marcus. Solution: 2

Issue	Damaging the financial and mental credibility of the client by imposing worth $235.
Rule	Australian Contract Law, The Civil Liability Act 2002
Application	For protecting the agreement and rights of the organization and clients from illegality and breaching the contract.
Conclusion	The organization should follow the ethical and legal code of conduct. The client deserves to not pay $235 money as additional and dishonour fee.

Table 2: IRAC (Source: self-developed) Issue:

Weather plaintiff is liable for claiming the money worth $ 1000 for emotional stress?
whether company is right to possess the additional money worth $200 to the client?
whether Client is liable to get compensation of worth $ 1000 as damaging the goodwill and mental stress by the QuickBuyListen.com.
whether company’s advertising policy is appropriate in the website?

Rule: Australian contract law: Australian contract law is legislative body which provides statutory modification of law and principles in various areas. The law deals with formation of agreement, consideration, intention and capacity. This law suggests that effect of signature is essential for making the agreement with the parties. This law plays essential role in the solving the issue of termination of contract, termination of breach and termination for failure of contingent condition. This law can help the court to take judicial action on the case between Andrea and QuickBuyListen.com. The Australian Contract Law establishes the legislative forces for the safety of organization and people. Application: Andrea has been Arbitration clause is exist in QuickBuyListen.com Andrea can take the legislative guidelines from the Australian Contract Law for securing her claim. The Australian Contract Law suggests that agreement of various parties is decided through the rule of offer and acceptance. In this process offered must have to clearly express the rules and regulation within the agreement. The fraudulent and misrepresentation of advertisement is punishable under the legal penal code. The term of agreement must be based on effect of signatory during understanding the business agreement. This law takes valid action against illegality and fraudulent activities done by the parties either it is customer or company. Whoever breaching the law must come under criminal offence. Andrea must apply this law to give her safer side the court. In this regard Andrea must strongly demand the compensation free from the online retailing company. The company has damaged her goodwill by imposing additional $200 and dishonour fee $35. This legislative force decides who comes under safer side and who comes under fraudulent deed. The act empowers the legal rights in case of illegality and misrepresenting act done by the parties in the business process. The Australian Contract Law decides the capacity of aw by deciding competency, uncertainty and illusory of the agreement. This act gives clear intention to the parties whether it is reasonable and equitable. This act evaluates the business efficiency, clarity and consistency of the agreement signed by the parties. In particular, this act helps in analyzing terms and clauses of the causes by expressing legal term including written or oral contract or promissory statement. This act is enforceable in the field of expressing the term in legal terminology in illegality and fraudulent activities by the business firms. The Civil liability act 2002 can help the parties to show their ethical side and rights to the court during fighting the case. This act gives statutory protection to the individual or organization with the legislative provisions. The Volunteer must assess this civil liability act in their business process for maintaining the legality. For maintaining the effectiveness of this legal act the business parties’ client should follow the promises mentioned in the agreement. Applicability of legislative law is necessary for the protection of agreement signed by the parties for doing business. The Civil Liability Act 2002 protects the financial damage of clients and organization with its legal aspect. In this case Andrea is forced to give additional and dishonouring fee worth $200 and $35 respectively by the QuickBuyListen.com for using the website for downloading the ones and withdrawing the all funds from bank account. The Australian contract law and Civil Liability Act 2002 remove the illegality and fraudulent activities of the organization and individual by protecting their financial and goodwill damage. Therefore it would be right to say that Andrea doesn’t deserve to pay additional amount $200 and dishonour fee worth $35 to the QuickBuyListen.com. The company has damaged her goodie and mental strength so as to the needs to waive the $235 amount imposed on Andrea for maintaining the legality in the business process. Otherwise court can sue the company to give the fine of $1000 for harassing her mentally and financially. This case study deals with the misrepresentation of online retailing firm QuickBuyListen.com with the clients. The customer had been cheated by this online company. Andrea a primary school teacher gets shocked when she heard that she has to give additional $200 for downloading the song tracks. Meanwhile she always paid the money $1 for downloading music track. She got mail from this online company to pay the additional amount. However, she is not agreeing to give the additional claimed amount charged by the online retailing company. So as to she withdrew all money from the bank linked to QuickBuyListen.com. This activity by Andrea can caused the mutual relationship with the bank. The bank has charged dishonour fee $35 to Andrea for not being able to pay the money as per the instruction. She has not signed anything on the website intentionally. She believes that online company is making fraud financial allegation on her. Andrea wants that QuickBuyListen.com should waive the additional fees worth $200 and dishonour fee worth $35. Now, she has decided to take this matter into the court as well as she has demanded $1000 from the QuickBuyListen.com for emotional stress that impacted her professional and personal life. Conclusion: The advertising process of the company should not misrepresent the terms. The customer must check the website while using. Andrea is right to sue $1000 worth fine to QuickBuyListen.com for damaging goodwill and mental strength. Solution: 3

Issue	Matthew can claim the action towards the car driver for which was coming towards him in his lane and he also wants to bring an action against his employers for unsafe working conditions.
Rule	Herein the negligence clause is applied for Matthew.
Application	For protecting the legal side of client
Conclusion	Boss must pay the prices for accident.

Table 3: IRAC (Source: self-developed) Issue. Is that boss is responsible for accident of Matthew? Is that Matthew has right take legal action the car driver who caused him accident? Four elements of negligence and duty of care: There are four elements of negligence have been found and it has been seen that first element of negligence claims that one must be aware of their duty and all the people must maintain a minimum standard of care while providing any services or product to the customers. As per the second element of negligence, one must try to make other people aware of risks that can arise at any time otherwise, it will be considered as a breach of duty. On the other hand, it has been seen that when the breaching party becomes harmful for others and increase risks for others then they must be sued. For example, recklessness of a person while driving a car can cause injury of others. Negligence often causes self-harm as it is found that when a person drives a car with full speed and loses. As per the four elements, the injured person must prove the cause of harm for which another person is responsible. Rule: Here in the negligence under the Australian Commercial and the Corporation Law takes place as because there is absence of care for the liable person. In certain circumstances negligence is based upon the reasonable care and it is also not to cause harm to other persons. A person who is in a position for the Breach of the duty of care he or she is liable to compensate the person for the loss or damage. There are various factors for the negligence which are: the defendant owed the plaintiff a duty of care. Then the breach of this duty of care must be also maintained. If the plaintiff’s loss was clearly stated then the breach of duty must have consequence by the defendant’s. At last the damage which was suffered by the plaintiff was denoted as the remoteness of damage. Civil Liability Act 2002, for the standard of Care: The Civil Liability Act 2002 under section 5B is the reform legislation which deals with the breach of the duty based upon the defendant. It provides the two stage inquiry for the determination of the breach of duty. In the first stage this common law is the foreseeable risk of risk by which the reasonable person would have responded. With the help of this act in the second stage at 5B(2) adopts the common law approach for the reasonable person who acts as the risk factors. Application: The Civil Liability Act 2002 is essential for the protection of the physical and financial damage. The act is beneficial for the protecting the rights of contacts and goodwill the organization individual. In this case applicability of Civil Liability Act 2002 could emerge as decider. Matthew is the Driver of an express portal service. The organisation is focused on becoming the fastest delivering network company. Matthew struggled with the accident while delivering because he was communicating with the phone to boss while driving the car. Most of the employee of the organisation is blaming the boss for this accident. It would be not proper to blame only boss for the accident may be Matthew's fault let him accident with the telegraph pole. On the other hand witness is showing that Matthew tried to save the car which is coming to the same side. This show anyhow boss responsible for the accident. The Civil Liability Act can help this case to reach the possible outcome effectively. Duty of care for workers: The Civil Liability Act 2002 can found the possible result by punishing the boss for pressuring the workforce. Mathew’s employer could have stopped this accident by allowing him to work freely. May be Boss is correct with his obligatory rights but he can’t force the worker to do delivery of goods anytime anyhow. Whatever damage is done to Matthew his boss must pay to him for maintaining the credibility of the organisation and safety of the worker. Damages: The Civil Liability Act 2002 empowers the protection of rights of the individual and organisation. In particular, this act helps in evaluating terms, agreement and clauses of the causes by expressing legal term including written contract and promissory statement. The street light and business that were affected as a result of the accident happened with telegraph pole, especially the owner of the shop whose front side of the shop got damaged due to the collides with the pole, incurring heavy monetary losses wants to sue both the parties including Matthew and his boss for the entire damages. Defence: Meanwhile, they can sue Matthew since he was clearly involved in the damaging of property, they can also sue Matthew’s boss under the provision of Civil Liability Act 2002 where an boss is directly accountable for the acts of oversight by its employee. The applicability of the legislative act becomes compulsory for the making decision on unethical and wrongful deeds. In this case boss of the Matthew is responsible for letting the accident. The Civil Liability Act 2002 can play effective role in deciding the right and wrong side in this case effectively. This act increases the authenticity of the legal framework in the business practices. It gives the protection to the parties who have signed the agreement for doing their business. Overall this case study shows the lacking of legal aspect in the business decision making process of the organisation can cause the massive financial and health damage. Vicarious liability: Vicarious liability refers to a state in where one must be responsible for the work that has been done by others. In such condition, it can be said that employer can be responsible for their employees’ activities. For example, when an employee provides defective products to the customers at a high price then both the employee and employers must be responsible for this unfair practice. This is because Matthew and his employer were sued for the mistakes that were done by Matthew. Conclusion: Matthew deserves financial assistance by his employer for damaging his health and income. The boss could have prevented the accident by not pressuring Mathew regarding delivery of goods.

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