they assignment requirement is in"assignment commercial law assignment" file. those two essay "hongfei yan 19.09.2019" are my own written and my teacher have gave comment on those two. those two are the same. but teacher have gave different comment on different part. please combine those comment and base on the sample question to make the amendments on it. i only need one assignment. please help me to make amendment on only one assignment
QUESTION Ravi is a first year student and he is studying Business, with a major in Accounting. Archana and Ravi are in the same Business law and Ethics class (Ravi thought the course might be too hard and left it „til his last year). Archana likes Ravi. She thinks his clothes are a bit old fashioned and he seems a bit sleepy but still she likes him. Archana knows that Ravi works at McDonald‟s as a Manager. She decided to meet her friends at McDonald‟s on her 18th birthday and hoped that Ravi would be on duty … and he was. Ravi thinks Archana is nice but he‟s rather more interested in her friend Lakshmi, who is a bit older: she‟s 19. On the night of Archana‟s 18th birthday, Ravi was the manager on duty. It was a long and busy night and Ravi had to help behind the counter cooking the hamburgers and chips because one of the staff had called in sick. At around 9:00 pm, Dara, who is employed at the McCafe approached Ravi, who was tending the bar, and told him that someone had been sick near the main door. “Have you cleaned it up, then?” yelled Ravi over the noise of the customers. “Yeah, yeah,” said Dara “But it‟s an awful mess.” Ravi thought he‟d better go check but just then Lakshmi came up to the counter to order. Ravi nudged past the other counter attendant to serve her and completely forgot about the „awful mess.‟ Archana could see Ravi smiling at Lakshmi and ate more chips plus some vodka she had brought into McDonald‟s in her water bottle. By the end of the evening Archana was very intoxicated. About 10:00 am, Archana was ready to head home. She stumbled toward the main door and, in a final attempt to gain Ravi‟s attention, turned to wave him goodbye. She slipped on the „awful mess‟ and fell on her back with a thud. Archana was wearing the latest fashion in stilettos – shoes with two inch platforms and 5 inch, very narrow heals. As she fell the right heel of her shoe broke away from the sole causing a particularly twisted, heavy fall. It turns out that someone had spilt cream from the birthday cake onto the vomit on the floor creating a doubly slippery surface, according to forensic investigations. Archana sustained a fracture to her lower back and will need surgery. She will have to lie in bed for some months in order to recover. She‟ll have to give up her part-time job at Safeway. Fortunately no one else was injured. It was reported that the mess was seen and avoided by others at the party. Archana‟s interest in Ravi has turned sour. She wishes to sue Ravi in Negligence. Advise her as follows: 1. Did Ravi owe Archana a duty of care at the time of the incident? 2. Can Archana prove that Ravi breached a duty of care owed to her? 3. Can Archana prove the element of damage in an action against Ravi? 4. Could Ravi raise any defences? 5. What damages Archana be entitled to if she is successful in her claim? It is action of negligence as Ravi was negligent towards his duty, due to which Archana suffered from physical loss. So, Archana can sue Ravi to recover the damages in form of monetary compensation for the medical expenses of surgery and for the pay she was going to get from part-time job at Safeway. So, Archana needs to prove that Ravi was negligent towards his duty of care, that is why she has suffered from physical loss. The burden of proof is on the plaintiff, Archana. The elements of case will be considered on balance of probabilities. 1. Duty of care Issue Archana, plaintiff needs to prove that does Ravi owes her duty of care. Rule The Wrongs Act 1958 states that the duty of care is established with the reasonable foreseeability test where damage is physical and careless conduct is an act or an omission. The reasonable foreseeability test states that (Donoghue v. Stevenson 1932) a reasonable person foresee a real risk of harm to plaintiff if defendant failed to take reasonable care. The reasonable person is an average ordinary person of no special distinction from defendant. Application As Ravi is a manager at McDonald’s, he has a controlling position through resources. So, he has duty to take good care of customers. He was also aware of mess near the door. So, the reasonable person, on the place of Ravi should have foreseen the probability of events that occurred. It was foreseeable that anyone can suffer from the physical damage due to the mess. Thus, it was foreseeable as real risk of harm. Conclusion It is clear from the application of reasonable foreseeability test that Ravi owes a duty of care to Archana. So, if she wants to claim monetary compensation from Ravi for the physical damage, she needs to prove the breach of duty of care. 2. Breach of duty of care Issue 1 2 3 4 5 6 7 8 Lan Phuong Pham @ 2019-06-02T04:59:06-07:00 Three elements of negligence requiring proof? Lan Phuong Pham @ 2019-06-02T04:59:17-07:00 owed Lan Phuong Pham @ 2019-06-02T04:59:54-07:00 Where is it stated in the Act? Lan Phuong Pham @ 2019-06-02T05:01:45-07:00 Would a reasonable person foresee a real risk of harm to the plaintiff if the defendant failed to take reasonable care? Lan Phuong Pham @ 2019-06-02T05:02:24-07:00 You should also state the neighbour principle. Lan Phuong Pham @ 2019-06-02T05:02:59-07:00 What factors are considered in the test? Lan Phuong Pham @ 2019-06-02T05:03:22-07:00 Good. Lan Phuong Pham @ 2019-06-02T05:03:46-07:00 Good. The issue in this element is that Archana, the plaintiff must prove that Ravi breached his duty of care to her. Rule As per s 48 Wrongs Act 1958 to ensure that there is breach of duty of care or not, plaintiff must prove two criteria. First is that risk was foreseeable to defendant, second is that risk of harm was not insignificant, which means that risk was carrying high probability of damage. As per s 48(2) Wrongs Act 1958, there are four other factors which are used in applying these criteria. Which are given below. Probability of harm As per case law (Bolton v Stone 1951) probability of harm should also checked, which means that what is probability of occurring damage. Seriousness of harm According to the case law (Rogers v Whitaker 1992), other party should be warned by the defendant about the risk even though it’s low. Burden of taking precautions As it is established in case law (Roads and Traffic Authority of NSW v Dederer 2007) a defendant should take precautions, those that a reasonable person would have taken in that circumstances. Social utility of activity This means that some activities are more worth taking risk than others, so, as per case law (Waverley Council v Ferreira 2005) precautions must be taken to avoid or to minimise the risk. (Gibson 2018) Application It was foreseeable to Ravi that, due to mess someone can fall and can injure herself, but he ignored it. Another thing that risk was not insignificant, as it was of high probability of harm. Ravi is a manager at MacDonald’s, so he was controlling hand on that day, so, he owes a duty of care to customers. But there were no warning signs for the customers about the mess and no precautions were taken by Ravi to avoid the risk. Conclusion 9 10 11 12 13 14 15 Lan Phuong Pham @ 2019-06-02T05:04:02-07:00 decide Lan Phuong Pham @ 2019-06-02T05:05:32-07:00 s 48 (1) : Was the risk foreseeable, was the risk not insignificant and would a reasonable person in the person's position would have taken precautions? Lan Phuong Pham @ 2019-06-02T05:07:40-07:00 No, under s 48(3) of the Wrongs Act, insignificant risks include, but are not limited to, risks that are far-fetched or fanciful; and risks that are not insignificant are all risks other than insignificant risks and include, but are not limited to, significant risks. Lan Phuong Pham @ 2019-06-02T05:08:07-07:00 determining the standard of care required Lan Phuong Pham @ 2019-06-02T05:10:51-07:00 the expense, difficulty and inconvenience of taking precautions Lan Phuong Pham @ 2019-06-02T05:11:20-07:00 explain Lan Phuong Pham @ 2019-06-02T05:12:15-07:00 Why is it the standard of care required? As per the above analysis of this element, it is evident that the plaintiff, Ravi has breached his duty of care towards the defendant, Archana. 3. Damages Issue In this element, Archana, the plaintiff must prove that the physical damage she has suffering from is occurred due to the negligent action of Ravi and the consequences of careless conduct was also foreseeable to the Ravi, the defendant. Rule As per Wrongs Act 1958 s 51, there are two tests which are applied in this element on the balance of probabilities. Which are factual causation and remoteness. Factual causation In this test plaintiff needs to prove that defendant was not acting carefully, that is why plaintiff suffered from the damage. The plaintiff must show that the negligence of defendant was a necessary condition of the occurrence of the harm. In the case law (Strong v Woolworths Ltd 2012) the high court suggested that it was enough if the plaintiff could prove, on the balance of probabilities, that the negligence of defendant was a necessary cause of harm. (Gibson 2018) Remoteness This test discuss about that is it correct to assign liability to the defendant for his conduct in causing harm or the action was remote. It also considers that the damage of plaintiff is really result of careless conduct of defendant or not. As the case law (Hughes v Lord Advocate 1963) states that the consequences of action were foreseeable or not. (Gibson 2018) Application Even if Archana proves that Ravi owed her a duty of care and that he breached this duty of care, Ravi will not be liable in Negligence unless it can be shown that Ravi’s breach of the duty of care caused harm to the plaintiff.