Course(s)
LAW2477/2497
Assessment Task No:2 Research Assignment Summer 2023
Teacher Name & Contact Details
Total Marks 30% overall total for this course
DUE DATE
Assessment information: Instructions
• You must individually submit answers to all required tasks in Canvas under the Assignment Tab for Assessment 2
• Your Assignment will require you to undertake research and accurately reference all sources used (RMIT Harvard)
• Keep a copy of Assignment answers for your record
• Word limit 1500 words
• Use font Arial 12
Resources:
1. Acts of Parliament (Statutes, Legislation) and
2. Case Law (Judge made law, Common Law, Precedent)
3. Textbooks, media, websites of relevant legal organisations e.g., ACCC
Acts of Parliament and Case law can be found on Austlii
The Australasian Legal Information Institute, AustLII provides free internet access to Australasian legal materials. AustLII’s broad public policy agenda is to improve access to justice through better access to information. AustLII publishes public legal information — that is, primary legal materials (legislation, treaties and decisions of courts and tribunals); and secondary legal materials created by public bodies for purposes of public access (law reform and royal commission reports for example) and a substantial collection of law journals.
https://www.austlii.edu.au/
Question 1 Negligence
Total /15 marks
Short Report
For this task, you will assume that you are employed by a medium scale retailer working as the professional development consultant for Human Resources.
The latest figures from the Australian Prudential Regulation Authority (APRA) – for the 2021 (calendar) year – show a 15% increase in public and product liability claim payouts.
Increasingly, there is the potential for significant compensation payouts to be awarded, according to the former Australian Small Business and Family Enterprise Ombudsman Kate Carnell.
The chance of being sued for negligence can be unpredictable and expensive.
Your manager requires you to write a short report explaining the common law of Negligence to employees and why such knowledge matters to them and the business.
Your report is required to address the following:
• What is negligence?
• What is required for a successful claim in negligence against a defendant?
• Why should employees and employers be aware of the concept of vicarious liability?
• What is the outcome of a successful negligence claim?
• What are the defences a business may raise against a negligence claim?
• What steps can a business take to avoid a negligence lawsuit?
• Cite and briefly describe a negligence case pursued through the courts in Australia which demonstrates the negative impact such claims can have on individuals and/or business.
—>
Negligence is a legal concept that refers to the failure to exercise reasonable care, resulting in harm or injury to another person. In the context of business, negligence can occur when an employer or employee fails to take appropriate actions to prevent harm or injury to customers, clients, or other individuals.
To establish a successful claim of negligence against a defendant, the plaintiff (the person making the claim) must prove that the defendant owed a duty of care to the plaintiff, the defendant breached that duty of care, and the plaintiff suffered harm or injury as a result of that breach.
Employers and employees should be aware of the concept of vicarious liability. Vicarious liability is a legal principle that holds an employer liable for the actions of their employees, even if the employer was not directly involved in the actions that led to the harm or injury. This means that an employer can be held liable for the negligence of their employees if the employee was acting within the scope of their employment when the negligence occurred.
A successful negligence claim can result in the defendant being ordered to pay monetary damages to the plaintiff to compensate for the harm or injury suffered. In addition, the defendant may also be ordered to take specific actions to prevent similar harm or injury from occurring in the future.
A business may raise various defenses against a negligence claim, such as claiming that the plaintiff was also negligent, or that the plaintiff assumed the risk of harm or injury. A business can also argue that the harm or injury was caused by an unforeseeable event or that the harm or injury was caused by a third party, and not by the defendant.
To avoid a negligence lawsuit, a business can take various steps such as implementing and enforcing safety policies and procedures, providing proper training to employees, regularly inspecting and maintaining equipment and facilities, and having proper insurance coverage. Additionally, businesses can also consult with legal professionals to ensure they are aware of their legal obligations and are taking appropriate actions to mitigate risks and prevent harm or injury.
Total /15 marks
Question 2 Australian Consumer Law
Fuzz Mightyear Pty Ltd is a successful family business which sells Childrens products and accessories online and instore. Fuzz Mightyear advertise their products online claiming:
“The best toys made from sustainable and robust materials guaranteed to last. Great prices.”
Luana was interested in purchasing a remote-control toy car for her niece after reading the following advertisement and product description:
“Our M.Y. Remote Control Children’s car is sure to make any child happy.
Constructed with safety in mind and crafted from sustainably sourced materials it is great value at $300. Customers who purchase the M.Y. Remote Control car before November 1, 2022 will receive two free tickets to the Melbourne Pantomime of Cinderella worth $200.”
On September 30, 2022, Luana decides to buy the car for her niece. Luana is excited at the idea of providing the Pantomime ticket for her niece as a special treat. Luana clicks on the item to “add to cart”. Luana then continues to finalise her order when she notices that the remote-control device needed to manoeuvre the car has not been included with the order. Upon further investigation by clicking on various tabs within the business’s website she realises that that the remote-control device must be purchased separately for an extra $100. Frustrated but still interested in the inclusion of pantomime tickets Luana adds the remote-control device to her order and tries again to check out, only to find that there is a $50 booking fee added to acquire the pantomime tickets.
Annoyed, Luana immediately posts the following complaint in the Chat Box to Mightyear:
Mightyear Pty Ltd Dispute raised: #1 for Order #N93552 on 30 Sep (13:53)
Type of Dispute: Product promotion and cost information
Reason for Dispute: Undisclosed fees associated with purchase of M.Y. Remote Control Children’s Car
Status of Dispute: New
Message: When I tried to purchase the M.Y. Remote Control Children’s Car which was promoted with free Cinderella Pantomime tickets I found the headline price at the beginning of my online purchasing process was different to the actual price of the product at the conclusion of the sale. You failed to disclose that the car and remote-control device are sold separately. You also failed to disclose that customers would incur an additional fee for the Pantomime tickets.
I am disappointed and feel that the price of the M.Y. Remote Control Children’s Car should include the remote- control device and no Pantomime booking fees.
Regards, Luana
Luana is dismayed to receive the following response from Mightyear a day later:
“Mightyear Customer Service Team Complaint Response”
Hi Luana,
We are a family business and to cover our operating costs we must sell accessories for all our toys separately. We charge a booking fee for the Pantomime tickets to cover our administration costs.
Luana is unhappy with this response and wishes to take the matter further.
Task: write a formal letter of complaint to Mightyear Pty Ltd explaining how the business has breached Section 18 of the Australian Consumer Law. Outline what action will be taken and with whom if your problem is not remedied satisfactorily. Refer to a recent ACCC case study/investigation to support your arguments.
