Business Law Example #2 Essay Example

to the authorities that this kind of faultiness can cause immediate physical harm to the passengers, as was indicated in Bourhill v Young. To determine whether a vulnerable relationship between the defendant and plaintiff, the following factors must be considered. Firstly, the authorities are in a controlling position as a tram operator only except if a person who do not comply with the safety procedure. Secondly, passengers are reliant on the tram operator once they get on board. Thirdly, the authorities are in a position to be protective of the passengers, as was indicated in Section 8 of Rail Safety Act 2008. Therefore, the authorities were also vulnerability to the plaintiff.

After proven a duty of care did exist, the next part is to determine whether there was a breach of that duty. The defendant had to take into account the foreseeability of the risk. Whether the authorities are reasonable to foresee the probability of the risk is a key factor to determine if there is a breach of duty as was held in the Bolton v Stone. The next issue is the seriousness of the consequence if an injury occurs. In the Paris v. Stepney Borough Council case, the court found the Stepney Borough Council was failed in their duty of care as the plaintiff had a permanently injury after the accident. Serious tramway incident can be a huge disaster and resulting as a fatal accident. The last issue should take in to account is the burden of taking precaution. Should the tramway authorities take precaution to prevent such kind of accident is the key factor to this issue.

The plaintiff argued

that if the authorities had fitted the ‘dead man’s handle’ system on the tram, the accident could have been avoided. However, there was no evidence shown that this kind of system in use on two-man tram anywhere in the world. As illustrate in the case of Woods v. Multi-Sport Holdings, the defendant was not liable to provide protection to the plaintiff, as there was no evidence show that similar equipment been used elsewhere. Moreover, the authorities claimed that this device would cause irritation and inefficiency to the driver. Nevertheless, there was also evidence showed that if safety equipment had been used in that accident, it would greatly reduce the risk of injury. Therefore, it is hard to determine whether the authorities had the burden of taking precaution to fit equipment on preventing human faultiness in this case.

Regarding to the injury that the plaintiff had, a factual causation should existed. According to the Chappell v. Hart case, the plaintiff might not be injury if the defendant takes precaution to the risk. In this case, the injury was directly cause by the defendant.

In my opinion, the plaintiff has a fair chance to success in his claim since the defendant did breach their duty of care as a tram operator. And this kind of tram accident can be fatal. However, there might be some disputation on the necessary of fit extra system to prevent this kind of incident.

Case 2

Jonas was employed by Rapid Couriers as a courier. His father was employed at the same company and worked with his son. One day while making a delivery, the son lost sight

of his father, who was directing him, and accidentally ran over him. Discuss whether the father would successfully sue his employer.

Answer:

In this case, the father was injured as the truck ran over him. For a negligence to be existed in this case, the defendant, Rapid Couriers, must be found liable to their employee’s action. The defendant employed Jonas as a courier and assigned him to make a delivery. Jonas injured his father during a job assigned by his employer. If Jonas was not an independent contractor, the act that he performed would cause the employer vicarious liable to the accident as indicated in Cassidy v The Minister. Furthermore, Jonas performed the wrongful act while he is in his capacity as an employee. His action was obviously connected to his employment as held in Deatons Pty Ltd v Flew.

In order for Jonas’s father to succeed in his claim for indemnify, the defendant have to be proved liable to the damage as lack of negligence. Two key factors that that should take in to account. All workers while at work must comply with the Work Health and Safety Act 2011. As indicated in Division 4, 8(a) of the Act, “a worker must take reasonable care for his or her own health and safety, and take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons”. If Jonas’s father did not follow the safety procedure, he might be fail in his claim.

Besides, if Jonas did not take precaution to what he performed in work, it might minimal reduce the negligent

liability of the company to his father. On the other hand, if there were a risk that was reasonably foreseeable to Jonas’s father, the claim would become a contributory negligence. Lastly, if it can be successfully proved that there was risk of injury Jonas’s father consented to or voluntarily assumed, he will not be able to succeed in his claim. However, there is insufficient information to determine whether or not Jonas and his father comply with the Work Health and Safety Act.