Unit Code: HA2022
Unit Name: Business Law
Online Tutoring: Tutorial Questions Online Tutoring 1
Due: 11:30pm 15thMay 2020
Weighting: 25%
Total Online Tutoring Marks: 50 Marks

Purpose: This assignment is designed to assess your level of knowledge of the key topics covered in
this unit
Unit Learning Outcomes Assessed:
1. Explain the various elements of the Australian legal system, such as the sources of Australian law, the jurisdiction of Federal and State Courts and the doctrine of precedent.
2. Possess a working knowledge of the tort of negligence, contract, consumer protection, insurance and employment law.
3. Apply legal knowledge to factual situations, through written and/or oral communication, to achieve a reasoned conclusion.
4. The ability to identify the relevant legal issues from a factual situation and the application of statute and case law involves the use of problem solving and decision making skills. Description: Each week students were provided with three tutorial questions of varying degrees of difficulty. These tutorial questions are available in the Tutorial Folder for each week on Blackboard. The Interactive Tutorials are designed to assist students with the process, skills and knowledge to answer the provided tutorial questions. Your task is to answer a selection of tutorial questions from weeks 1 to 5 inclusive and submit these answers in a single document.

Week 1 Question (10 marks)
(Question 1.4 in the Pre-recorded Tutorial Questions)
Is the decision of a national sporting organisation such as the National Rugby League or the Australian Football League to suspend a player for an offence under the laws of the game a rule or a law? Discuss.

Week 2 Question (10 marks)
(Question 2.3 – Part A only in the Pre-recorded Tutorial Questions)
Explain the doctrine of binding precedent.

Week 3 Question (10 marks)
(Question 3.3 in the Pre-recorded Tutorial Questions)
Frank, a football lover, frequently attended games at his local ground. On one occasion the football was kicked into the stand where he was sitting, hitting him on the head and knocking him out of his seat, causing him to break his arm.
Part a) Can Frank sue either the local council or the football club, or both, in negligence for the broken arm that he received? Discuss. (6 marks)
Part b) what defences, if any, could the council or the club raise against Frank’s claim for compensation for the injuries he received, and would they succeed? Discuss. (4 marks)

Week 4 Question (10 marks)
(Question 4.2 in the Pre-recorded Tutorial Questions)
Explain what is meant by the expression ‘vicarious liability’, and describe what needs to be established in order for the plaintiff to succeed in such an action.

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Solution

Week 1: Law or Rule?

The decisions by national sporting organizations like NRL or AFL for player suspension following an offense is considered to a rule/ regulation of that game, and therefore it is not legally enforceable or binding. All laws are considered to be rule, but all rules are not laws in reality (Turner, 2018).

Law and rule making are both jurisdictions and/or the exclusive domains of government  (Turner, 2018). The legislative wings like central of federal governments can constitute the law and rules that are legally enforceable and become the rule of law  (Turner, 2018). However, the roles and regulations of sport bodies or associations are not legally enforceable. For the similar reason, the decision of an umpire or a referee for player suspension cannot be appealed in a court of law as it is not legally enforceable  (Turner, 2018).

 

Week 2: Binding Precedent

English laws rely heavily on the judge-made rules or the case laws. However, the freedom of judges in making laws is quite limited. In the majority of cases, the judges are required to apply the already established principle provided that they are sufficiently clear and there is no requirement for judges to make amendments (Rush & Ottley, 2006). The principles are either set by legislative bodies or might be secured in earlier cases. The later one is known as precedent.

There are two types of precedents;

• Binding Precedent: The decision on the law that the court is obliged to follow even if disagreements are apparent (Rush & Ottley, 2006).
• Persuasive Precedent: The decision on the law that the court is not obliged to follow, however it can use the case as a guide (Rush & Ottley, 2006).

In case of binding precedents, the doctrine requires the judge to follow a decision of the courts above him in the hierarchy of judiciary (Rush & Ottley, 2006). The judge may also be constrained to follow the court decisions on same level in special cases. When judges follow decision of upper courts its referred to as vertical stare decisis and when it follows the court decision of same level court, its referred to as horizontal stare decisis (Rush & Ottley, 2006).

In case if the lower court believes that there might be some vagueness or room for amendment over the binding precedent, the only option is to allow an appeal to higher court. The hierarchy of binding precedents is shown in figure below;

Figure 1: Civil Court Hierarchy

Source: (Rush & Ottley, 2006)

Week 3: Frank

A: Frank can sue the local football club for showing negligent behavior during designing of crowd safety protocols. However, such lawsuits can be argued against easily  (Thornton, 2010).

The local football club is responsible for providing the safe seating area for fans/audiences of football so that they can sit and enjoy the game securely. If the football hit Frank, he can argue that the football club failed to take appropriate safety measures while designing the sitting area. Moreover, usually the tickets of games have printed legal disclaimers at the end in which clubs or stadiums reveal the likelihood of risk of getting hit by a ball or puck. These disclaimers become the base of “assumption of risk of injury” (Thornton, 2010). If these disclaimers weren’t present at the ticket, Frank can argue that he wasn’t communicated about the risks of getting hit in written or oral form by the stadium owners. This argument can lay strong foundation for lawsuit. In other ways, it can be said that there were no appropriate and sufficient safety standards set by Football Club that could cause injury to the football fans in many circumstances  (Thornton, 2010).

B: The Football Club can defend its position on basis of reasonable and risk assumption. As a viewer, the fans are assumed to know the risk of getting hit by the football during the playtime  (Thornton, 2010). Hence, it is expected of Frank that he should’ve known the risk of watching the match in ground. The defense could be that Frank had come to see the match with assumed awareness of risk of getting involved in such an incident  (Thornton, 2010). With a few exceptions, fans cannot sue the baseball teams or the stadium owners for injuries suffered during the normal play time. It is expected that the fans “assume” this potential risk when they attend the games. In such personal injury cases, an “assumption” of risk is a commonly cited defense  (Thornton, 2010).

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Week 4: Vicarious Liability

It is the absolute liability of principal for misconduct of agents or actors whose activities are being directed and controlled by the principal (Stephenson, 2000). The doctrine of Vicarious Liability is concerned with legal responsibilities of the person (principal) for the torts of another person (agent). It is also known as respondent superior and secondary or indirect liability under agency relationships (Buckley & Okrent, 2004).

In the legal doctrine of vicarious liability, it is the principal vehicle for holding the principals liable for torts or other actions carried out by their agents  (Stephenson, 2000). Under this doctrine, the principals are liable for any damages or negligence torts committed by their agents within the scope of employment whose behavior is legally controlled by the principals  (Buckley & Okrent, 2004).

In order to succeed with the claim based on vicarious liability, the plaintiff is liable to prove that negligent/wrongful actions carried by the person/party who committed the delict were rightfully controlled by the defendant i.e. the agent carried the actions while being employed by the principal  (Buckley & Okrent, 2004). An employer can incur strict liability for the delicts committed by its employee given that the employee committed the delict during normal course of his employment while staying within the scope of employment  (Stephenson, 2000).

Week 5: Greta – Contractual Obligation

In the English Law, the advertisements are not considered to be an offer instead they are an invitation to treat (MacIntyre, 2018). For a binding contract, the following elements must be checked for;

• Existence of agreement between two parties. One sided agreement does not lead to a binding contract. Both involved parties must be on consensus to make a binding contract (MacIntyre, 2018).
• Exchange of value must be there in form of goods, cash or services (MacIntyre, 2018).
• Offer must be made and accepted by the other party (MacIntyre, 2018).

In the given case, there was no written statement made as an agreement on the price. Moreover, no offer was accepted leading to failure of contract to be established as binding. Making an offer is the first vital step of entering into a legally enforceable contract  (MacIntyre, 2018). Announcements, brochures and advertisement do not reach at level of an offe  (MacIntyre, 2018) r. Sam has only interpreted the price to be $2000 as no offer was clearly made by Greta at $2000. If Greta decides not to sell the item at the price perceived by Sam, she wouldn’t be breaching the contract. Advertisements only can be treated as offers if they include definite terms, targets specific person or publicize itself as an offer of a contract. In the given case, negotiations can be made between Greta and Sam to arrive at the price that can be constituted as an offer, be accepted, includes consideration and meets the mind of both parties. In such a case the contract will be binding  (MacIntyre, 2018).

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