The Legal Environment and Business Decisions - Assignment Example

The Legal Еnvirоnmеnt and Business Dесisiоns By student’s name Course code +name Professor’s name University name City, state Date of submission The Legal Еnvirоnmеnt and Business Dесisiоns Question 1: Australian legal system The magistrates courts are the lowest in the Australian court system and it is the summary of jurisdiction. A court layout comprises of the witness box , the public gallery, a bar table where the parties involved sits. There is also a bench that is raised where the sitting magistrate settles together with the clerk. There is also a dock where defendants are housed in the custody. Another feature with the court is the presence a video link that helps witness to appear through remote conference other than being there in person(Gray,1983 p 80). These are used in the case where a witness is not able to travel or a prisoner is deemed too risky to travel. Some of the cases handled by these courts includes : committal hearings, bail application, money claims as well as other civil disputes that does not exceed $100000. In a court session consisting any of the above named civil cases involves a number of involved parties. Each party in the court session has a title. The commonly used titles are the appearances, where there is the plaintiff and the defendant, solicitors and then the court counsel. The magistrate is referred to as the “your Honor” The defendant in his or her defense process has to issue a court with a document entitled the “the opening for defendants “This document comprise all the evidence that acts in favor of the defendant(Gray,1983 p 20). The defendants are also given a chance to give clear evidence against the acquisitions made against them by the plaintiff. That is they provide all necessary information that would act in favor of them in the case. An example of these cases was a dispute case that rose over the construction of commercial farm sheds along the Rainbow road in Victoria. The plaintiff claimed that the sheds had not be constructed as it was agreed upon in the contract. The defendant was to build two sheds where one was completed successful , but the other one time elapsed before it was complete. This led to the plaintiff incurring a damage cost as a result (Kramer, 1964 p 32). The plaintiff or the owner of the sheds filled a case against the contractor calming to be compensated for the damages incurred. These claims were made under the representations of contracts contained in the Trade practices Act of 1974 as well as the fair trading Act of 1999.All these acts were made to make sure that there were no unfair treatments in any business transaction. They contain clear underlined guidelines in the trading area. There were several claims that were referred to ,the first one was the contractual claim ,This was aimed at recalling how the contract come into being. What followed was to define whether the contract was subject to finance which is under the evidence Act of 2008.This section paved way for the second claim of trade practices and representation under the trade practices of 1974.The restitutionary claim followed and the aim was to deduce whether the plaintiff was entitled to restitutionary relief of damages claimed(Kramer, 1964 p 55). After the claims were made, it was deduced that all the parties in the case had a role to play and each party failed in ones role. For the case of the defendant, it was his duty to make sure that he built the Sheds in line with the agreement to avoid occurrence of the damages claimed. As a result, all the amended counters claimed were all dismissed(Boge, 2001 p 66) .The application liberty was reserved in case any issue raised as a result of non standard cost being appropriate to the building process. The decision made was a fair one because according to the whole case evidence was given and made it very clear that each party in the case had failed in his or her responsibility according to the contractual claims made. Question 2: Negligence Negligence in general it’s the omission act towards doing something. This happens where a reasoning person who is guided upon the stated guidelines which regulates the human conduct would not do or simply does something that a prudent reasonable person would not do. It is also the breach of an obligation or being lax in fulfilling a laid down task. In case a person is found negligent in the eyes of the law he or she may be face a civil lawsuit as well as criminal charges(Boge, 2001 p 56). This brings in the issue of the underlined case study where negligence of a person causes harm to someone else, giving the negligence victim a chance to sue. This can be referred to as civil liability or civil negligence. The officer in charge of the fire brigade actions were of negligence because he ordered the jack to be put in another vehicle that was not specifically made to handle the jack. As a result, these actions of negligence caused harm to a fireman .The fireman can sue the officer only if he is able to show all the elements that ascertains that the officer was negligent .These elements includes the following: The first element is on damages caused, the fireman or plaintiff has to show that he suffered damages, injury or loss. From the information given it is clear that the fireman incurred some injuries therefore, he has managed to fulfilling the first element of holding the defendant or officer in charge liable. The second element is on duty, this is where the case of negligence depends on whether the defendants had a duty to the plaintiff. This form of duty arises when there exists a relationship between the two parties. In such a case the defendant is obliged to behave in a certain way towards the plaintiff. It is the obligation of the judge to determine whether the defendant had a duty of care towards the plaintiff. A reasonable person would realize that a duty exist under certain a set of circumstances and the court would generally find such a situation as a duty exist. Breach of duty is another determining element. The officer in charge of the fire brigade team is liable to negligence once he breaches the duty that is owed to the plaintiff or the fireman. This happens once the officer fails to use reasonable care in the process of fulfilling his duty. Therefore, it will be the duty of the judge to decide whether the officer exercised reasonable care while handling the jack. Cause in fact must also be considered, that is under the traditional negligence cases the firemen has to proof that the officer in charge actions caused his injuries. This can be referred to as “but for” that is, but for the officer’s actions of changing the jack to a track that is not designed for it the fire man could not have incurred injuries. Proximate causation must be considered in that it relates to the defendants responsibility scope within a negligence case. This means that the officer in charge of the fire brigade is only responsible to those harms that he could foresee through his actions of ordering the jack to be carried in another vehicle that was not designed for it. In other words if the damages caused by the defendant does not lie within the scope of the risk that could have been foreseen by the defendant then the plaintiff has no prove that the defendant or officer in charge actions proximately caused the his or her injuries(Carvan, 2002 p 45). The final element that the fireman has to prove is a legally recognized harm. This is informing of physical injury caused by the jack. Therefore, the failure to exercise reasonable care has to be followed by the actual damages to the fireman to whom the officer in charge owed a duty of care. Question 3: Insurance It is the duty of any party going out for an insurance cover to make sure that he or she gives in all the required information in full and accurately to the insurance company. This aspect is important under the insurance disclosure due to the utmost good faith principle (Hinchy, 2007 p. 234). This takes place regardless of whether the question was raised by the insurer or not. Convictions information to many insurance companies is very important because it is taken to be relevant to the risk. This stand may seem as being unfair, but has the authority either to adjust the price or may decide not to offer any cover to the risk reported if they find it fit. In some other cases the insurance company does not ask about such information although they are meant to ask specific and clear questions. It is always advisable to check for any assumption, the cover terms as well as policy documents to ensure that conviction is not mentioned(Hinchy, 2007 p. 213). The insurance company can cancel a policy once they learn that a conviction happened before a policy was obtained and such information was not disclosed. An insurance cover obtained in such a case would be acting illegally. In the case of the directors of Twenty-First Maylux Pty Ltd the proposal forms had no indication of such questions concerning prior convictions of one of the directors(Carvan, 2002 p 23). As indicated above it was the responsibility of the director to check all the terms and the policy documents to be sure of the conviction claims state in before obtaining the policy. In this regard, Cover-All Insurance will raise the issue that it become involved into a an insurance cover with a party who had prior cases of convictions when making a claim. That is the director failed to disclose all relevant information to the insurer. As a result, the insurance company can avoid the policy or refuse the made claims. The insurance company will use these evidence to show that the insured had not complied with all the terms and conditions required. Reference List Boge, C. J. F. 2001. Justice for all?: native title in the Australian legal system. Brisbane, Lawyers Books Publications. Carvan, J. 2002. Understanding the Australian legal system. Sydney, Lawbook Co. Gray, G. R. 1983. An examination of standard of care in negligence cases involving school-related sports and games in Canada. Thesis (D. Ed.)--University of Oregon, 1983. Hinchy, R. 2007. The Australian legal system: history, institutions, and method. Frenchs Forest, N.S.W., Pearson Education Australia. Kramer, C. 1964. The rules of evidence in negligence cases. [New York], Practising Law Institute. Stevenson, H. G. 1949. Investigation of negligence cases simplified. Newark, N.J., Associated Lawyer's Pub. Co. Read More