Foundation Legal Knowledge - Assignment Example

Running Head: Law Law Customer’s Name: Customer’s Course: Tutor’s Name: June 25th, 2012 Question 1 Negligence as a tort is any conduct that may fall below the standards of behaviour that may be established by law in protection of other parties against irrational risks of harm (Trindade, Cane & Lunney, 2007). Under the law of tort, for one to claim that the cause of action is due to act of negligence, the plaintiff must prove beyond reasonable doubt that the defendant has a duty of care to the plaintiff and that he defendant; in one way or the other breached the duty of care, that the negligence of duty was the sole cause of the harm to the claimant, and that the plaintiff suffered or was harmed (Beever, 2009). From the scenario at hand, the plaintiff (Maria) has to prove that she incurred losses after purchasing the property which she did not use as intended due to misleading information that the defendant (Philip) provided to her. In addition, Maria must prove that Philip provided misleading information and that the information is misleading. Finally, she must prove that the suffered loss is solely due to the defendant’s negligence of not providing truthful and sufficient information. Again from the scenario, Philip provided the piece of advice after having alcoholic drinks in the club. Therefore, Philip did not have to advise a client on whether or not to buy the property or not since the content of the information may be disjoined due to the effects of alcohol. With the knowledge of effects of alcohol, Philip is liable to any misleading information since the client relied on the defendant’s sincerity and honesty (Beever, 2009). It is therefore, evident that Philip is liable to compensation if and only if Maria proves his case successfully and reasonably. For Maria to have a good case against Philip, she must establish the following three elements contained in the definition of negligence as a tort (Trindade, Cane & Lunney, 2007). That is, does Philip as a company owe her a duty of care, has the defendant breached the duty, and has the breach in one way or another caused any damage which is legally recognizable to the claimant. Since the main cause of damage is the misleading information provided by Philip, it is logical to say that Philip was the main cause of the loss incurred by Maria. On the same point, since Philip understood well the possible outcomes and the risk involved in providing such kind advance, regardless of the fact that he was drunk, one can conclude that it’s because of his negligence that the damages were incurred. In addition, Philip promised to assist Maria further but did not. But despite of that knowledge, Philip went ahead and advised Maria to buy the property even before seeking the much needed piece of advice from the council. The act of taking alcohol while advising shows that Philip is negligent in his actions. Hence, Philip’s company is liable to Maria since one of its employees was negligent more so in the line of duty (Gibson & Fraser, 2012). The company should have followed every action that all of its employees are undertaking and if need be caution them of their actions. On the side of Philip, the only legal and substantial ground that he can stand on is that he was drink and that Maria was fully aware that he was under influence of alcohol. In the light of this, both the company and Philip should consult on who is liable to compensate Maria though it is evident the ball is on the Philip’s side (Latimer, 2011). The remedy for negligence is compensation for the damages but the burden of proof is on the plaintiff to show that the defendant’s negligent actions were the sole cause of the damages of buying a property that will not be used by the plaintiff as intended. Again, the losses of purchasing another property should be provided for by Philip and his company (Latimer, 2011). In conclusion, the facts surrounding the Maria’s cases make it evident that she has a good case against Philip. It is therefore logical to conclude that Maria has a chance of succeeding in this case if and only if she proves the three elements of negligence as a tort. Question 2 In the contract Marigold may have several grounds to sue John under the Competition and Consumer Act Cth 2010. John’s conduct in the agreement may also find him liable. The Competition and Consumer Act 2010 (Cth) (CCA 2010) protects consumers against contracts term that may be deemed unfair in a court of law. In the standard contract between John and Marigold it appears Marigold was persuaded to sign a contract that puts her at a disadvantage. By requiring that Marigold cannot withdraw from the contract before the sale is completed while John is free to withdraw from the contract any time he likes is an unfair contract term. Under the conditions provided as unfair terms in a contract by the Competition and Consumer Act 2010 (Cth) conditions for contract terms to be judged as unfair include: a) if the term causes “a significant imbalance in the parties’ right and duty under the contract, b) it is not necessary to protect the legitimate interest of the party advantaged by the contact term, c) It is likely to be detrimental to one of the parties. The contract term which requires Marigold to agree to any price that is above the listed price also gives John an unfair advantage as he stands to gain more if he sells the house at a high price. Marigold is also unfairly bond to see the contract through, meaning John can act in an unconscionable manner but Marigold would not still be able to walk out of the contract. Furthermore, the two of the contract terms fall under the CCA 2010 Cth examples of unfair contract terms. These Acts example of unfair terms that are similar to the one in the contract are: a) the contract allows John to avoid or limit performance of the contract; b) it also allows him to terminate the contract while denying the same right to Marigold, c) it allows John to vary the up-front price of the house without allowing Marigold to withdraw from the contract. Moreover, John has also not acted in a transparent by hiding his intentions of selling Marigold and his neighbours’ houses to developers while making sure Marigold cannot withdraw from the contract a factor the court would consider important in deciding whether the terms of the contract are unfair (Dean et al, 1999) Under the Competition and Consumer Act 2010, it is illegal to provide misleading or deceiving information or conduct in the line of conducting commerce or trade. Therefore, any legislation associated with the sale of goods or services must state the specific conditions under which the conditions cannot be excluded from such sales. In the light of this, many states including Australia have taken legal actions using this Act against businesses which tell consumers the wrong information about their rights with respect to returning faulty or damaged goods. Question 3 It would be very hard for Mary to be compensated for the damages arising from the accident involving her new car. By giving false information about her previous driving convictions, Mary breached the duty of disclosure that the insured has under the Insurance Contract Act 1984 - Sect 21 (ISA). However, Mary’s can present a case that shows the insurer waived the duty of disclosure therefore requiring that he compensates Mary for the accident (Tarr, 2002). Section 21 of the ISA requires that Mary discloses to the insurance company all the information that may influence the offering of the insurance cover for her by failing to tell the insurer she had been convicted of driving offences thrice in just one year, she withdraws from the insurer information that appreciates her risk of being involved in an accident. Her actions may see her denied compensation by the insurer and even prosecuted for providing false information. In the case of McCabe v Royal & Sun Alliance Life Assurance Australia Ltd (2003) WASCA 162, Mrs McCabe had failed to disclose to the insurance company a condition she had at the time of taking the life insurance cover. Mrs McCabe had been hospitalized with systematic lupus erythmatosis (SLE), a life threatening condition. Mrs McCabe however did not explicitly express to the insurer that she had been diagnosed with the condition and even though she knew it might have affected the decision to award the cover. When his husband filed a claim for her life insurance after her death, the claim was denied which consequently led to his filing a suit against the insurer. In the case the Judge ruled Mrs. McCabe had broken her duty of disclosure and thus the claim for her life insurance was denied. Similarly, Mary would find it hard to prove in court she had not broken her duty of disclosure. However the insurance company could also be forced to compensate Mary if she could prove in court they waived her duty of disclosure by not making sure the proposal form was properly filled. Information such as the suspension of a driving license is not hard to access and thus the insurer should have carried out background checks to establish whether the information provide was actually true. By just taking the information provided by the client and deeming as enough for an award of a cover is conduct that may constitute a waiver of duty of disclosure on the part of the insurer. References Beever, A. (2009) .Rediscovering the Law of Negligence. Oxford: Hart Publishing. Competition and Consumer Act 2010(Cth) Dean, M., Burgess, J., Baumgartner, D., & Roberts, K. (1999). Homewise: How to Successfully Buy, Sell and Build a House in Australia. New Delhi: Regal Publications Gibson A. & Fraser D. (2012) .Business Law. Belmont. Pearson Insurance Contract Act 1984 Latimer P. (2011) .Australian Business Law. Sydney: CCH McCabe v Royal & Sun Alliance Life Assurance Australia Ltd (2003) WASCA 162 Tarr, J. (2002). Disclosure and Concealment in Consumer Insurance Contracts. London: Routledge-Cavendish Trindade, F., Cane, P & Lunney, M (2007) .The Law of Torts in Australia. New York: Oxford University Press Read More