i have already write the report. our teacher said that i need to fix it. and i have attached 3 report that wrote by myself which include the teacher`s comment. she has highlighted those part that need to be fixed. could you please have a look and see if you can fix it for me? thank you
Page 1 of 2 BULAW5914 Commercial Law Assignment Question Semester 2, 2019 Instructions to students: Purpose: This significant task requires forward planning and adequate time for research, reading and reflecting. It comprises 35% of your assessment in this subject. You should begin researching early to gather information and establish a plan of approach as soon as possible. The purpose of the assignment is to enable you to achieve outcomes in knowledge, skill and application across the designated learning outcomes mentioned in the BULAW5914 Course Description. It is also to enable you to: Learn how to independently research particular aspects of the law; Reflect on and consider particular legal issues; Demonstrate your understanding of relevant laws; Develop your knowledge about the subject area of your research; Demonstrate the ability to investigate, synthesise and analyse; Communicate your findings in a formal piece of work and meet a deadline; Enhance your written communication skills; and Apply your legal skills. Assignment word length: The total length of your assignment must be no more than 2,500 words. Do not include the references or bibliography in your word count. Due date: Submit via Turnitin on Moodle by 4pm, Thursday of Week 10. Assignment assessment criteria: You will be assessed on the extent to which you have: Answered the set question(s); Been able to identify, set out and discuss relevant legal issues; Justified your position by reference to use of appropriate legal sources, particularly cases and legislation where appropriate; Analysed, argued or discussed as required by the task questions; and Page 2 of 2 Engaged in legal research and made use of relevant secondary legal sources, in particular a number of legal texts, internet sites and academic (peer reviewed) journal articles and books. Scenario: Joe and Kamela got married earlier this year. After they returned from their honeymoon, they moved into Joe’s house. Joe knew that the house was very cold during winter and that Kamela does not like the cold. So, prior to the move, Joe went to a discount department store, Paymart, and asked the salesperson, Steve, to help him select a suitable heater. Steve showed Joe a number of heaters, both electric and gas. Steve recommended the gas heater the Hades 5000 as suitable for an area of the size of Joe’s open plan kitchen, dining and lounge room. Steve also pointed out that the unit is energy efficient and has a mechanism for keeping the air in the room at a constant temperature. Joe purchased a Hades 5000 and another unit, the Hades 2000, which he placed in the bedroom of his house. The Hades 5000 cost $4,000 and the Hades 2000 cost $3000. Both units were installed by Fred Kemper, a gas fitter who is a sole trader. Fred was recommended by Steve. Joe and Kamela were at home one day when they heard a strange fizzing sound coming from the loungeroom. They came running in to find sparks flying from the heater. The curtains and soft furnishings quickly ignited. Kamela and Joe ran out the front door as the house exploded. Both Joe and Kamela were injured by flying debris. A subsequent investigation found that the fault was more likely to be in the heater than the installation. To add insult to injury, Joe’s gas bill for the period when the heaters were operational is very high. The Hades 5000 is manufactured by a Russian firm, Defektny located about 50 kms from Moscow. The units are imported into Australia and distributed by the company Hot Stuff Pty Ltd. Questions (35 marks): Answer both questions: 1. Advise Joe and Kamela what rights they may have to sue in the tort of negligence. Please refer to case law principles and statutory provisions in your answer. (15 marks) 2. Advise Joe and Kamela if they can sue under the Australian Consumer Law. If so, who would they sue, and on what basis? Please refer to specific statutory provisions of the ACL in your answer. (20 marks) PowerPoint Presentation Last Week: The Australian Legal System Part 2 The hierarchy of courts and the court system The doctrine of precedent The separation of powers doctrine Statutory interpretation Torts, negligence and product liability Commercial Law BULAW5914 Faculty of Business Revision What are the different approaches to the interpretation of legislation, and how do they differ? (1-490) Revision Different approaches to the interpretation of legislation (1-490) Literal approach- States that a court should give a strict interpretation to the intention of Parliament as set out in the words actually used in the statute Golden rule- Qualifies the literal rule by allowing the courts to disregard the literal, or actual, meaning of the words used in the statute if they would produce an absurd result or a result inconsistent with the rest of the statute Mischief rule- Entitles a judge to identify the problem which existed before the legislation was enacted and to interpret the legislation in such a way as to suppress the mischief or advance the remedy in the legislation Purposive approach- Requires the interpretation of the words in the legislation to help the words achieve their purpose Objectives Outline the nature of tort liability 2. Explain the tort of negligence at common law, and understand the statutory reforms to negligence in 2002 3. Explain the role of the ACL Objectives Outline the nature of tort liability 2. Explain the tort of negligence at common law, and understand the statutory reforms to negligence in 2002 3. Explain the role of the ACL What is a tort? ¶4-010 – ¶4-150 A civil wrong (other than a breach of contract) (i.e. A wrong in non-criminal law) Aimed at protecting individuals against infringements of their own personal rights These infringements may be against another person’s property, reputation or person The law of torts: Provides rules of conduct that regulate how members of society interact Affords remedies (usually monetary) if the rules are breached & damage is suffered (e.g. Someone is injured by the act/ omission of another) Examples of torts ¶4-020 Negligence- Where one person breaches a duty owed to another and causes damage Defamation- Defamation law protects a person’s reputation from being unjustly injured. Nuisance- Harming another’s use or enjoyment of land. Deceit- Fraudulent misrepresentation causing loss. Trespass to land- Unauthorised entry on private land. Trespass to the person Battery- Physical conduct without consent Assault- The threat of direct force to another False imprisonment- Deprivation of another’s liberty without lawful cause or excuse Trespass to goods Conversion- Wrongfully dealing with the property of another Detinue- Wrongfully detaining the property of another Examples of torts Torts vs. contract Contractual obligations- Determined by the terms of the contract Tortious obligations- Fixed by the law irrespective of any contract The same act may be both a tort & a breach of contract E.g./ A contract with a health care provider may include a contractual term that it takes reasonable care & involve a duty in the tort of negligence to take reasonable care ¶4-020 Torts vs. crimes ¶4-050 Tort- The action is commenced by the victim Objective- Compensation Crime- The action is commenced by the Crown/ DPP Objective- Deterrence & punishment The same act may be both a tort & a crime E.g./ If A punches B in the nose, A commits the crime of assault & the tort of battery Objectives Outline the nature of tort liability 2. Explain the tort of negligence at common law, and understand the statutory reforms to negligence in 2002 3. Explain the role of the ACL Suing for negligence (4-070) Three elements to be established- 1. Duty of care was owed by D to P 2. There was a breach of the duty of care 3. P suffered damage as a result of the breach Establishing a duty of care (4-080) Duty of care- A duty owed by one person to another because of the relationship between them which might cause injury Donoughue v Stevenson (1932) (discussed in week 2) “Who then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my conduct that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts and omissions which are called in question.” “You must take reasonable care to avoid acts or omissions which you reasonably foresee would be likely to injure your neighbour” “Salient features” of a duty of care Reasonable foreseeability: Foreseeability alone does not give rise to a duty of care Knowledge of the D: If D knows or should know that his/her act or omission may cause loss or impairment to the legal rights of another and that person is not in the position to protect his/her own interests Vulnerability of the P to harm from the D’s conduct Breach of duty (4-100) D has breached their duty of care if they failed to do what a reasonable person would have done in the same circumstances Standard of care is what the ordinary, reasonable & prudent person would do- Bolton v Stone (1951) A cricket club did not fail to meet their standard of care when a pedestrian was hit by a cricket ball A cricket ball had only cleared the fence about 6 – 10 times in the previous 30 years but no body had been hit Civil Liability Acts now define the standard of care for personal injuries caused by negligence (see, for example, s48 Wrongs Act (Vic)) WRONGS ACT 1958 - SECT 48 General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)— (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. (3) For the purposes of subsection (1)(b)—