Legal Issues in Three Scenarios

Question One: Gordon was walking inside the Westfield Shopping Centre as it was a wet morning. He slipped on the tiled floor in the foyer of the Shopping Centre and sustained an injury. He slipped on the tiled floor in the floor of the Shopping Centre and sustained an injury.

a. Can Gordon exercise legal actions against the shopping center for tort or negligence?

An act of negligence occurs when one has a duty of care when there is a breach of that duty, when there is causation and when there is harm (Beever 2007). Here, the shopping center had the duty of care to minimize any risks of harm that shoppers might be exposed to but did not exercise this duty by keeping the floor dry or warning about the wet floor. The breach of duty by not keeping the floor dry caused Gordon to slip, thus satisfying the causation principle. Lastly, Gordon sustained injuries as a result of the shopping center’s breach of duty to prevent harm by keeping the floor dry. Gordon can, therefore, exercise actions against the shopping center because the case satisfies all the four basic requirements for negligence.

What sort of charges is Gordon entitled to?

If there is harm or injury emerging from an act of negligence, then the negligent party is obliged to compensate the harmed person in the form of damages. The damages are mostly monetary in nature, as there is no alternative method to make the person whole again (Pal, 2019). Furthermore, according to Mudric (2013), the damages may occur in the form of special damages or general damages. Here, Gordon sustained an injury due to the shopping center’s act of negligence, and therefore, the shopping center is obliged to compensate him for the damage. By sustaining an injury, Gordon is has encountered pain and suffering, and may be compensated based on the jury’s judgment. Gordon is therefore entitled to the charges for two compensatory damages, including pain and suffering as well as medical bills.

b. Is there any applicable defense for the shopping center after being sued?

The shopping center would only have an applicable defense if the case did not satisfy any of the four basic rules of negligence. However, in the current case, all the four rules of negligence (i.e., duty, breach, causation, and harm) were satisfied. Therefore, the shopping center does not have any applicable defense.

Question Two: Warwick and Sunny want to set-up a college using money that they have and that they have borrowed from family and friends. They are not sure about the best business structure to run a college.

a. What business structure is most appropriate for them?

The most appropriate business structure for two people who want to co-own the business is a partnership. According to the Australian Government (2019), a partnership is typically a business owned by two or more people who have authorities as owners of the business. They share the costs and losses, even though each partner might require filing their own tax compliance. Here, both Warwick and Sunny intend to invest the money they have in a single business that they would like to co-own. According to Cassin et al. (2012), this implies that both Warwick and Sunny will share the costs of setting up the business, profits, as well as any losses incurred from the business. Therefore, the partnership business structure would be the most appropriate for them because each of them will have authority over the business as an owner.

There are several advantages that Warwick and Sunny might reap from adopting the partnership business structure. For instance, Spadaccini (2007) argues that partnership structures allow the partners to combine their skills. Besides, the partners have the freedom to distribute their profits or losses according to their agreement (Spadaccini & Spadaccini, 2011; Page, 2018).

b. The registration process of Partnership

After choosing to form a partnership, the first step for Warwick and Sunny would be to apply for an ABN number, which is a unique identification number required when dealing with the Government or other businesses (Australian Government, 2019). According to the Australian Government (2019), the application for ABN can be done online and takes a few minutes.

After obtaining the ABN number, Warwick and Sunny will need to choose a business name and determine whether that name is available for use through the Australian name search register. If the name is unavailable, they will have to select another name. However, if the name is available for use, they will need to secure it through the business registration services.

Lastly, if Warwick and Sunny want their business to have an online presence, they will need to register a website domain name for their business using the ABN number. Upon completing these steps, the business shall be ready to begin operation (Australian Government, 2019).

Question Three: Mr. and Mrs. Garmin, a middle-aged newlywed couple booked their two-week honeymoon package to Bali from “Tours with Us” in Melbourne, after reading their advertised travel brochure. The brochure had many promises, but only a few were fulfilled during the couple’s trip.

a. Was there a valid contract between Mr. and Mrs. Garmin and “Tours with Us”?

According to Cotton (2018), a contract is considered to exist when one party makes an offer, and the other accepts the offer, both of which can be done either orally or in writing. Here, “Tours with Us” made an offer by advertising their travel services in a brochure, and Mr. and Mrs. Garmin accepted the offer by booking and paying for “Tours with Us” services. Therefore, there is a contractual relationship between Mr. and Mrs. Garmin and “Tours with Us.”

Was The Contract Valid?

After ascertaining an offer and acceptance, a contract is only considered valid if it satisfies certain basic principles. First, according to Arvind (2017), a contract is valid when there is an intention among the parties to create a legally binding relationship between them, as opposed to an agreement that is social in nature. Both Mr. and Mrs. Garmin and “Tours with Us” intended to create a legal relationship between a seller and a buyer. Secondly, the parties involved must have the capacity to engage in a contract (Chen-Wishart, 2015). Mr. and Mrs. Garmin and “Tours with Us” were competent enough to contract. Thirdly, according to Burnham (2011), both parties must give free consent. In the current case, neither Mr. and Mrs. Garmin nor “Tours with Us” were coerced to sign the agreement. More importantly, the object over which the contract was signed must be lawful (Cotton, 2018). Here, the contract between Mr. and Mrs. Garmin and “Tours with Us” was on lawful service delivery of tour services. The contract between Mr. and Mrs. Garmin and “Tours with Us” is therefore valid.

b. Remedies for Breach of Contract

In cases where the contract does not expressly indicate the remedies in case of breach of contract, there are several remedies that the court might consider if a party is found to have breached the contract. However, according to Cotton (2018), any party to a contract is entitled to damages in case of a breach of contract in which they were involved. The innocent party may claim payment for damages from the breaching party in compensation for failing to keep their promises. According to Chen-Wishart (2015), the innocent party may be awarded nominal damages if they suffer no loss due to the breach of contract, or monetary compensation if they suffer any loss due to the breach of contract. Here, Mr. and Mrs. Garmin has suffered no loss as a result of “Tours with Us” breach of contract (i.e., failure to deliver some promises), and therefore, “Tours with Us” are obliged to compensate for the nominal damages suffered by Mr. and Mrs. Garmin.

Question Four

a. Advice to Joanne of her rights under the Australian Consumer Law

Under Australia’s consumer law on refunds and replacements, the customer is entitled to ask for a refund in case there is a major problem with the product. However, the refund and replacement are subject to the terms and conditions of sale that were in existence when the buyer was making the purchase (Australian Competition & Consumer Commission, 2019a). Therefore, it is John’s right to ask for a replacement, considering that the telephone answering machine is not working. However, because the terms and conditions of the earlier purchase indicated that a refund is impossible, Joanne’s only option is a replacement. Joanne should, therefore, accept the voucher with the knowledge that he will have to pay the extra amount for which the replacement goes at the moment (i.e., $ 25 more).

b. The consequences for the Customer Service Representative if Joanne proves that there was a breach of her consumer law guarantees

Under Australian consumer laws, businesses are obliged to guarantee any products they lease, sell, or hire for the value of under 40,000 Australian Dollars (Australian Competition & Consumer Commission, 2019b). According to the Australian Competition & Consumer Commission (2019c), these guarantees are compulsory and are issued in addition to any warranty received by the purchaser. In case the business fails to deliver the guarantee, the consumer is entitled to cancellation of service, repair, refund or replacement, and compensation for loss or damage (Australian Competition & Consumer Commission, 2019c). Here, Joanne’s product is not working, and therefore in the event that there is a breach of consumer guarantee rights, the best solution is to have the telephone receiver repaired or have it replaced with a new one. However, because replacement would attract an additional $ 25, the best solution for Joanne is to have the product repaired.

Question Five

a. Differences between an employee and a contractor

An employee or contractor may be paid for similar roles, but there are various legal differences between the two sets of individuals. Pittard & Naughton (2014) argues that a significant distinction between an employee and a contractor is that in the case of the latter, the company withholds their medical contributions, income taxes, and social security. Conversely, in the case of a contractor, the company does not withhold any taxes, medical contributions, or social security. Furthermore, according to Stewart (2012), contractors do not work under any employment and labor laws, which include the signing of employment contracts. Here, Warwick did not sign an employment contract with Professional Posts Pty Ltd after his contract as an independent contractor expired. Therefore, Warwick cannot be considered an employee of Professional Posts Pty Ltd

b. The main factors that courts are likely to take into account in determining whether a worker is an employee or independent contractor

There are several factors to consider when determining the difference between a contractor and an employee. For instance, according to Stewart (2005), the court would have to consider whether:

The company controls or have a right on what the worker does or how they do it

Whether the company is in control of various business aspects (e.g., reimbursed expenses, supplies, and tools) of the worker’s job

Whether there are written contracts of employee benefits such as insurance, vacations pay or pension plan

Whether the work is a key aspect of the business

Question 6

a. The regulations that Ruthless engineering should follow to comply in Victoria State

By refusing to advise workers’ compensation insurer and the relevant regulatory body about the worker’s health status, Fred’s employer is in breach of several employee safety regulations operating within Australia’s State of Victoria. Ideally, Fred’s employer is expected to adhere to various labor safety laws and regulations that are operational in Victoria State, including Occupational Health and Safety Act 2004 (OHS Act) and Occupational Health and Safety Regulations 2017. According to Stewart (2005), the OHS Act operates as the main occupational health and safety regulation in Victoria. Considering Fred’s case, his employer is obliged by Part 3 Division 2 of the OHS Act to monitor the health of employees and take any necessary action to remedy the employee, including reporting the issue to relevant bodies for further actions.

On the other hand, Occupational Health and Safety Regulations 2017 was derived from the OHS Act and provided a framework on how employers and employees are supposed to fulfill their obligations and duties within the context of occupational health and safety (Smith, 2009). Thus, Occupational Health and Safety Regulations 2017 cover items such as the necessary licenses for various activities, occupational training for jobs that involved high risks, and guidelines on the safe operation of mines and other hazardous facilities (Smith, 2009). In the case study, Fred’s employee could have followed the Occupational Health and Safety Regulations 2017 by ensuring the safe operation of the cutting machine by providing necessary protective gear such as face goggles.

b. How Ruthless Engineering can stop the happening of employee infection in the future and avoid potential hazards in their business operation

Both the employee and the employer are responsible for ensuring occupational safety. However, while the duties of employees and employers in ensuring occupational safety may differ in some aspects Pittard & Naughton (2014), there are general safety precautions that can be taken to minimize occupational health hazards such as that experienced by Fred. For instance, according to the Occupational Health and Safety Regulations 2017, processes should be designed and operated in a manner that minimizes emissions or the spread of toxic substances. Besides, it is important to take note of all the possible exposure routes such as inhalation, ingestion, and skin when developing safety measures (Smith, 2009).

References

Arvind, T. T. (2017). Contract law: Unfold the problem, reveal the law, apply to life.

Oxford ; New York : Oxford University Press, 2017.

Burnham, Scott J. (2011). Contract Law For Dummies. Hoboken, NJ John Wiley & Sons, Inc. 2011

Beever, A. (2007). Rediscovering the law of negligence. London : Hart Publishing, 2007, copyright 2007

Cassim, F., Cassim, M. F., Cassim, R., Jooste, R. D., Shev, J., & Yeats, J. (2012). The law of business structures

Chen-Wishart, M. (2015). Contract law. Oxford : Oxford University Press, 2015

Mudrić, M. (2013). The professional salvor's liability in the law of negligence and the doctrine of affirmative damages.

Pal, M. (2019). Economic analysis of tort law: The negligence determination. Abingdon, Oxon ; New York, NY : Routledge, 2019.

Pittard, M. J., & Naughton, R. (2014). Australian labour and employment law.

Spadaccini, M. (2007). Business structures. Irvine, CA: Entrepreneur Press.

Spadaccini, M., & Spadaccini, M. (2011). Ultimate guide to forming an LLC in any state.

Irvine, Calif.: Entrepreneur Press.

Stewart, A. (2012). Australian labour law in transition: The impact of the fair work act.