200432 Commercial Law

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200432 Commercial Law

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200432 Commercial Law

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Course Code: 200432
University: Western Sydney University

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Country: Australia

1.Benji was a first grade league player of Western Tigers Rugby League Football Club. During a friendly game against the Parramatta Storms Rugby League Club (the “Parramatta Storms”), Benji was tackled by Jack and Bronco, two Parramatta Storm players while carrying the ball forward. He was picked up off the ground and slammed bead first back into the ground by the two players in what is known as a “spear tackle”. As a result of the tackle, Benji was seriously injured and was forced to retire from the game at the peak of his career.
Discuss if Benji can bring a negligence action against anyone; and if there are any legal defences available to them? You must cite and discuss relevant case law principles to support your arguments in your answer. 
2.Harry is an engineer working in a project management in a merchant bank. His girlfriend, Zara is a town planner. They have been living together in a rented flat for five years. In late 2010, they decided to think about investing together as well as buying a house. Harry discussed this with his work matesand friends Steve and George who were in various investment divisions in the bank. Steve is a commercial lawyer and he told Harry that getting in the Sydney real estate market is the best investment around. George is a financial adviser and he agreed with Steve that real estate was generally best although he said that there had been rumours about Federal Capital Gains taxes being increased to a higher rate. Harry passed all this information to Zara who also told her mother Hilary.
Advise Harry, Zara and Hilary of any right they may have in this situation in the law of Negligence ONLY, giving full legal authority for your answers. Against whom would those rights, if any be exercised, and why?

1.The principles associated to the duty of care was originally brought to the legal field through the prominent case of donoghue vs Stevenson(1932)which was first brought to use in Australia in the case of Australian Knitting Mills, Ld. v. Grant 50 C. L. R. 387 (1935). A prominent rule has been provided by this case which is known as the neighbour’s principle. The principle states that a person is under legal responsibility to observe a standard of care in relation to any other person who can reasonably be harmed by his actions. The concept is also referred to as the duty of care and is one of the most an preliminary element required to establish a claim of negligence.
In Australia with lot of negligence is governed by the provisions of common law along with the civil liability act of the respective States. As provided by the civil liabilities acts a individual is said to initiate negligence if the risk was foreseeable, the risk was sufficient and a reasonable person would have ensured precautions to stop the risk in same situations. In order to verify whether a reasonable person would have taken safety measures the likelihood of the risk, serious harm chances, burden of care to run away from to risk and social requirement of the activity which initiates the risk has to be examined.
In the case of McCracken v Melbourne Storm Rugby League Football Club And 2 Ors [2005] NSWSC 107football player of the west tigers Rugby League Jarred McCracken had been subjected to spinal injuries which worker year ending after wrongly executed tackle was made on him while he was playing against Melbourne Storm in the year 2000. Two months before this incident the players of Melbourne storm had aggressively made a spear tackle to bring McCracken on the ground. The title made by the players fell into the category of dangerous Sports as per the laws of the game. One of the players admitted during investigation that he had the intention of bringing down McCracken hard on to the ground during the match but only to cause him minor injuries and that’s why the tackle was made. The judges in this case found that the actions of the Melbourne star players are not reasonable at all and Melbourne Storm was deemed to be liable vicariously for the conduct of their players and was ordered to pay compensation to the plaintiff. In addition that was provided by the court that a clear duty of eliminating the spear tackle because of its serious Ness and the risk associated with it exist on the part of the national Rugby League as it is a sports governing body.
In the case of Haylen v New South Wales Rugby Union Ltd [2002] NSWSC 114 it was stated by the court that it is the duty of the sport’s governing organizations to formulate laws which would guarantee that no serious injuries take place in relation to the players. However this duty does not offer that the organization have a duty of care for each and every player who play under them. The players indulge into the activity after knowing the risk connected with it.
In the case of  Agar v Hyde (2000) 173 ALR 665, High Court of Australia, it was provided by the court that participants under sports governing body at admitted to the injuries related to the sports through providing consent to the use of physical force according to the rules of the games. It was further provided by the court in this case that the unintentional violation of these rules are the risks which the participants take knowingly by participating in such Sports. In this case it was for that held by the court that the international rugby football board did not have a duty of care towards the sports participant to change the regulations to stop and reduce the risk of spinal and neck injury in spite of the fact that these injuries have occurred previously. The international bodies have no control in the method in which such matches are played and what instructions are provided to the players by the local clubs in addition all players select to be involved in the sports through free consent.
In the case of Richards v State of Victoria [1969] VR 136it was found by the court that leagues and  competition organizers owe a duty of care which provides that they should warn participants of the risk associated with the long-term injury which may arise from the damagescaused to them specially on the neck and head.
In the case of Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 it was provided by the court that if a person commits an action which is the reason for his own injury then even if a contribution was made by another person the former would be liable for contributory negligence. In such case the court will decide the damages to be paid to the injured party if at all according to the percentage of contribution made by them to the injury.
Thus in the case in hand as discussed in the above rules Benji can claim compensation from Parramatta Storms Rugby League Club as their players owe a duty of care towards Benji as it was found in McCracken case. Compensation would be claimed by the Parramatta Storms as they are vicariously liable for the actions of their players.
Further Parramatta Storms can claim the defence of contributory negligence as the Benji had the knowledge that he can be injured during the game but still participated in it.  The nature and social use of the activity is also used to determine the duty of care which in this case is a high risk and not so socially needed activity.
As provided in the case of Agar v Hyde national rugby league would not be liable
Thus Benji can claim compensation from Parramatta Storms but subjected to the provisions of contributory negligence
2.For the purpose of proving negligence three key elements have to be established as provided in Australian Knitting Mills, Ld. v. Grant 50 C. L. R. 387 (1935). The primary element which is necessary for proving a claim of negligence is the duty of care. Second, it has to be exposed by the plaintiff that the defendant had violated the duty of care. Finally, it has to be proved by the plaintiff, before the court that the harm which he has sustained was indirect or direct result of the negligent violation of the duty of care by the defendant. Whether or not the duty of care has been breached by a person is mostly analysed through the application of the objective test. According to Swan v Monash Law Book Co-operative [2013] VSC 326if a person can rationally foreseeable that his actions can cause harm to another person it is being that that person was a duty of care to the person who can be harmed. The “but for” test is one of the ways to establish causation in relation to negligence. According to the “but for” test, in case an harm would have being caused to the plaintiff, where there was no breach of the duty of care by the defendant, the defendant would not be accountable for negligence. In different words even if the defendant had violated the duty of care but they have suffered by the plaintiff would have been caused him even if the duty was not breached then no claim for negligence exist.
The actions of a professional person giving an advice is compared to that of another professional in order to find out whether the action taken was reasonable or not as provided by the case of Tepko Pty Ltd v Water Board [1999] NSWCA 40. In the case in hand the advice which was obtained by harry were from George and Steve who were professionals in investment divisions. Steve was a lawyer who gave advice to Harry Real estate was a god investment which was backed up by George but along with stating that there are some rumours regarding the increase of taxes. The information was passed from Harry to his wife Zara who passed it to her mother Hilary
In this case no further attempt had been made by Harry, Zara and Hilary to take any sort of financial advice in relation to the investment. They eventually suffered losses as taxes were increased.
George and Steve in this case owe a duty of care toward Harry only as it is not reasonably foreseeable for them that Harry would share the advice with others and as a result they wold face losses thus the neighbour principle discussed above is not satisfied.
In this case the George and Steve who were a financial adviser and commercial lawyer respectively would be liable for giving a negligent advice.  However as Steve is a lawyer a reasonable person would not believe that he can provide financial advice in relation to investment. Steve in this case being a financial adviser should stated in the general sense that real estate is a good investment along with the rumours that tax might be increased which is not possible for even for financial adviser to state with certainty.
Thus in this case the actions of Steve may be regarded as reasonable and not resulting to a breach in the duty of care.  
Agar v Hyde (2000) 173 ALR 665
Australian Knitting Mills, Ld. v. Grant 50 C. L. R. 387
Civil Liability Act 2002
donoghue vs Stevenson 1932 AC 522
Haylen v New South Wales Rugby Union Ltd [2002] NSWSC 114
McCracken v Melbourne Storm Rugby League Football Club And 2 Ors [2005] NSWSC 107
Richards v State of Victoria [1969] VR 136
Swan v Monash Law Book Co-operative [2013] VSC 326 
Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9 

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