Problem Answers on Tort Law

Tort Law

1. Can the owner, Mary successfully sue Tom for the damage to her car because of negligence? Identify and discuss the essential element of the tort law that she must prove.

To sue Tom for the damage to her car, Mary need prove three important factor:

1. Tom owed them a duty of care: She able to prove that Tom failed to exercise reasonable care while he was towing the car which parked on car park without permission. In which Mary need to prove the Tom own her a duty of care and directly affected by car damage. Also fair that Tom should pay Mary for her car damage.
2. Tom breached duty of care: She also need to prove that Tom didn’t meet appropriate standard care while to towing her car, as he was distractive by attractive girls. As his job is to towing the car very carefully while paying attention to each moment cause it might cause car damage and hurt other people.
3. Mary need to prove that she suffered as direct consequence of the breach: In which Mary need to prove that there is causal connection between the Tom Negligent and Mary’s plaintiff suffered a loss caused by the breach of duty. The loss thus suffered was not too remote from the tortious act of decedent.

2. Mary’s brother was at the back of car asleep. Because of the accident he breaks a rib and bruises large parts of his body. Can Mary’s Brother sue for the personal injuries? Discuss why or why not.

Mary’s brother can’t sue Tom for the personal injuries because as in New Zealand the corporation ACC will take care of every individual who surfing from any injuries or accident, and who can’t work. Mary’s brother will get help from ACC which will provide finical compensation and entitlements to Mary’s brother who is suffered from personal injuries. And they will give him weekly compensation for lost earnings which also include vehicle modification for seriously injured.

3. Tom has already told Mary he has no money to pay for any repair. Is there anything else Mary can do to recover her costs/ compensation? What must she prove?

Yes, if Tom don’t have enough to pay for damages then Mary can sue The Speedy towing Ltd for which Tom work. As it’s the employer is responsible for the harm/damage which caused by an employee in the performance of the employee’s duties. According to the Law the Speedy Towing required to pay Mary’s car damage suffered by Tom from the competitive activity. Section B Contract Law Q1

1. There is no contract has been made between Bella and Len as it is part of cross- offer between both parties. Because Bella say ‘OK, I’ll give you the 3,500 ‘at same time as Len says ‘agreed, deal done.’ to John.

2. There is no contract been made in between both parties until Andrew pay the money and accept the item as per contract law, but according to the study Warehouse mentioned there advertisement as an invitation for the customer. And they don’t have to mention the number of stock.

3. According to the contracts Enforcement Act 1956 it’s not a contract between Ben and William because it simply based or involves promises. But Ben must perform the promises which is equitant to the William performance as he was very helpful in in clearing Ben’s lifestyle block from gorse.

4. Nope because it will not be any contract because in contract law it’s important that one party makes an offer and the other party should accepted. According to the case study Alison want to buy the firewood and gave voice mail on Johnny’s phone but as Jonny didn’t received her mail, and we can’t be sure if she accept the offer or not by which offer is not effective until it has been received.

5. No Mansion is not contractually bound to pay for the 2000 tins of Brand X paint. As according to contract law no contract exists until an offer so obtained has been accepted. Also the basic rule for a valid contract is that acceptance must be communicated to the offer. And according to the case study Zutalors sent a truck which arrived at the office of Maisnon, carrying 2000 Tins of brand X paint with a letter from Maisnon which stated that “I agree to supply the 2000 tins of brand X paint that you ordered” with price of $75 per Tin. Which shows that the action was taken by Maisnon without the knowledge of the offeree will not usually create any obligation upon the offeree to pay for the work as she had no opportunity to refuse the services.

Consideration

6. Explain if there is a legally binding contract between Ruth and Alexander.

No there is no legally binding contract between Ruth and Alexander because Ruth promised to give $500 to Alexander in past and according to the contract law of consideration the promises done in past will not count as consideration. The promise cannot be based on the consideration that was given or said or done after the promise was performed.

7. Explain if there is consideration between the driver of XJ18 and Fred?

Yes there is the contract law consideration between the driver of XJ18 and Fred as driver beckons Fred to clean his car window which mean he accept the offer through outward sign to Fred. Also according to legal consideration Fred performed the act as driver requested and it’s clearly understood by both parties that Fred will be reward according to his act which was cleaning the car. Question 2 Vitiation of contract Capacity of minor

1. Explain whether Budget Motors Limited is able to enforce the agreement

Yes because according to the Minor’s Contracts Act 1969 is able to enforce the agreement/contract with a person who is above 16 year old. According to the case study Budget Motors Limited able to do contract and sell bike to Ricardo as soon as company follow the consideration was not inadequate as unconscionable and has no oppressive or harsh provision. The contract should be reasonable and fair otherwise it will not be consider enforceable between Budget Motors Limited and Ricardo.

2. Advise Andy whether either or both of these contracts may be avoided.

Yes Andy can avoided both case but he can only do this if he prove to court that both contracts are not fair or reasonable according to section 6 of Minor’s Contract Act 1969 after this courts will consider under which circumstance the contract were made and what is the values of property that her Mom gave to Angelo Peabody. Court will also consider Mrs Peabody age while she signed the guarantee and the mortgage over her house to Charles.

3. Advise if D Can get out of the contract which he done with F.

Yes D can still get out of the contract if he can prove in front of the court that the contract was not right and F took an advantage of his personal health as his eyes sight is poor and he mislaid his glasses. Can also explain that the circumstance in which contract was made was not right as F was very eager and D became F became very eager and D didn’t read the document properly.

4. Explain whether Lisa can cancel the contract.

Yes Lisa can cancel the contract because Paul include Lisa in contract by misrepresentation about his lunch bar restaurant profit and fail to discloser that business school which move to another part of Auckland which is impropriate in term of Contract Law. That’s why Lisa can cancel the contract and obtain damages including the amount $5,000 that she paid Paul. Restraint of Trade

5. Advise Jake on his legal Position.

Jack can sue Micky under the contract that restricts the freedom of an individual or as Micky is about to open a cafA© two kilometres away from bakery which is against the contract that they signed for The Night Kitchen. Question 3 Remedies Cancellation:

1. I going to explain through an example in which there are2 different parties called X and Y. In which X put add on trade me in which he mentioned that house is located in best area with nice neighbours. But when Y bought the house after 1 mouth he found out that there is group of young people live next to his neighbours who play loud music every day and break into Y’s car more than 2 times. X is the innocent party which as include into the contract by misrepresentation. Where Y is the one who didn’t take responsibility neighbours and house after selling house.

2. According to section 7(3) an innocent party may cancel a contract if he/she proof that had been induced into the contract through misrepresentation. And other party didn’t gave the right information about the property or product while selling to innocent party.

Damages

3. Yes Strephone expected to get $200,000 because it is reasonable to think that since the Phyllis Construction Ltd knew that the Strephone is in Hotel business, and due to delay the hotel will not make profit from their customer which they usually get.
4. Strephone will not get 250000 for the loss of a major international conference because the incident happened under ordinary circumstances. Strephone will get ordinary profits but not for special dyeing contracts that Phyllis construction didn’t know as it’s not a part of contract which singed between both parties.

Debit Recovery

5. No because according to Law the High Tec should give him notice and discuss the reasons about the less payment which was paid by Crown Hotel manager. High Tec can’t sue straight without notify the Manger of crown Hotel and they should warned him to pay rest of the money before the filed case against The Manager.

Question 4 The Employment agreement To be known Lydia Ko (Employee) agree to work for Bing Dai (Programme leader for business) as a full time support staff. Position The Employee is begin employed as support staff for Bing Dai who is programme leader for business. Employee need to perform according to instruction given by Bing Dai. Termination of Employment The Bing Dai Employer may terminate the trail period which is 90 days by giving notice to the Lydia Kio Employee within the trail Period. The Lydia Kio Employee may terminate the agreement by any cause by giving 2weeks notice in writing to Employer for resignation. Likewise Bing Dai Employer is required to give 2 weeks’ notice to terminate. Terminate for Serious Misconduct According to this agreement the Bing Dai Employer have authority to terminate Lydia Ko Employer without giving any notice in writing or oral. List of serious misconduct:

1. Dishonesty
2. Student harassment or harassment reading colleague.
3. Continuously failure to follow given instruction
4. Poor performance continuously
5. Damage any property related to school.
6. Action which damage the school and Employer’s reputation.

Suspension In case where Employer want to investigate any misconduct or damages, the employer have authority to suspend an Employee after considering the Employee’s view. The employer get paid until the investigation is carried out. Working Hours The Employee’s hours of work shall be 40 hours per week, between the hours between 09:00 am to 05:00 pm. Employer may also requested to work on weekends. Passing of Property and Risk Question 1

1. Explain by the reference to the appropriate sections in the Sales of Goods Act 1908 why this is a contract of sales of goods.

According to the sales of goods act 1908 S3(1) the sales contract can only be made if the sellers agree to transfer the property in good to any buyer for exchange of money. As per case Lisa agrees to sell her Garden shed to Paul in exchange of $225 that why it comes under contract of sale of goods.

2. Under the sales of goods act 1908 S20 Rule 2 it is clearly mentioned that if the seller is bound to do some changes in the good that he/she going to sell for the purpose of putting that particular goods in deliverable state, then the property/goods still belong to seller until it get approved or notice to the buyer. That’s why it still belong to Lisa.
3. Lisa will bear the loss as according to the sales of goods act 1908 First Lisa should deliver the property/good should be in condition what Paul asked for within given time frame and 2nd the property will not belong to buyer until it get approved by buyer.

Question 2 According to the Sales of Goods Acts 1908 Section 21 it’s clearly mentioned that by the appropriated term in the contract, Sims Cycles as seller may reserve the right of disposal until the conduction which was set by Sims Cycles and Cyclone cycles are fulfilled which is payments of the price of Bicycle that Cyclone Cycles bought from Sims Cycles. Question 3 Under s 17, where goods are sold by sample, there are four element in the implied term. What are they? If someone buy something through sample then there are three thing he/she should know:

• The product should meet same as the sample, it not supposed to different from sample.
• The buyer should have opportunity to compare the sample with product he/she is going to buy.
• And last the product should be free from any kind of defect or from any harmful defect.

Yes Joe should be justified in rejecting the oil, as he thought that Amphitrite Soybean Oil is a cooking oil as other Soybean Oil which is only used for cooking. But in other hand Joe should request for sample so that he can sure that the oil he going to order is matched with sample according to the S17 of sale by sample.

References

Consumer Affairs New Zealand. (2010, May 21). Minor. Retrieved from www.consumeraffairs.govt.nz: https://www.consumeraffairs.govt.nz/for-consumers/credit-and-debt-1/your-credit-contract/copy_of_minors Consumeraffairs. (2014, July 17). Consumer guarantees for goods. Retrieved from https://www.consumeraffairs.govt.nz/: https://www.consumeraffairs.govt.nz/for-business/compliance/quality-of-your-goods-or-services/goods-sold-by-retailers/consumer-guarantees-for-goods/#sample Ministry Of Justice . (2013). Full List Of Clauses. Retrieved from https://dol.govt.nz/: https://dol.govt.nz/Tools/EmploymentAgreementBuilder/(S(elhpka2si5wgu2y5sysickxk))/Guide/Default.aspx Parlement Concil Office. (2013). Contractual Remedies Act 1979. Retrieved from www.legislation.govt.nz: https://www.legislation.govt.nz/act/public/1979/0011/latest/DLM31590.html

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