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Business and Corporate Law

Free «Business and Corporate Law» Essay Sample

Lance and Cadella against Paramatta Council

In the case of Lance and Cadella vs. Paramatta Council, there is a breach of the law of tort. The law of tort offers remedies to persons who have suffered harm from the wrongful acts of others. A tort, according to common law jurisdictions, is a civil wrong whether intentional or accidental, from which injury occurs to another (Barnes 2007). Lance sustained an injury and suffered pecuniary damages due to the tortious conduct by the Paramatta Council. It makes Lance a plaintiff and the Paramatta Council a defendant because the latter handles inflicting injury to the first (Gibson and Fraser 2010). Paramatta Council incurs liability for damage since it did not respect the rights of a citizen, namely Lance.

Lance is riding towards the park through the Macquarie Avenue with his wife, Cadella, where he gets into an accident. The cause is a chain strung by the Paramatta Local Council across the pathway at the entrance to the park. Lance is an experienced cyclist who had been using the same route for the past few days; the chain was not there at that time.

An action of tort demands the plaintiff to establish that the defendant was fulfilling a legal duty by acting in a particular fashion. He should also demonstrate that the defendant breached the duty by not conducting accordingly and prove that the injury was a result of the defendants breach (Riches 2007). Having established all three elements mentioned for the action of tort by Paramatta Council, Lance and Cadella could initiate various actions against the tort.

One of the actions that Lance should take is that of negligence against Paramatta Council. The Council failed to put any warnings after installing the chain to avoid injuries to persons using that route. The Paramatta Council did not create awareness of the chains; therefore, it is liable for the damages caused to the cyclist.

Moreover, Lance and Cadella could use the action of the tort of attractive nuisance. It means that the path to the park attracted cyclists to ride fast whereas the entrance of the park was in a hazardous condition. The council ought to discourage the cyclists from speeding so that they have time to take a notice of the chain and apply breaks. If so, Lance would have been cycling slowly, applied brakes and therefore prevented the accident. The Council is guilty of damages sustained by Lance and his wife because it bears responsibility to ensure that actions that may lead to accident are avoided at all cost.

The action of ignorance is enforceable by the court of law. The private life of city citizens intertwined with the Council activities in a risky manner. The Council should have informed Lance and Cadella of the changes in order to prevent the accident; however, it was ignorant of doing so. Thus, the plaintiff hs a right to sue the Council for a compensation and a payment of damages (Parsons 2011).

There are elements of action against the breach of confidence demonstrated by the color of the string. It was gray like that the path and thus led to confusion. That might be qualified as a lack of communication to the public (Lance and Cadella) since unclear signs were used to mark the chains. The Council ought to have painted them in a different color to make them conspicuous.

Apart from Lance’s injury, his wife, Cadella, suffered emotional distress too. She experienced a nervous shock when she thought her husband was going to die at the hospital. Lance and Cadella can use this evidence at court accusing the Paramatta Council of emotionally harming Cadella. Notwithstanding, in this scenario, they will also have to prove that Cadella’s emotional shock was an implication of her husband’s sufferings not of any other event.

Lance’s case represents that of personal injury law. Individual harm law refers to legitimate cures and resistances included in common claims presented as a consequence of wrongful behavior. Individual damage that results from carelessness requests that the litigants must pay the offended party for all wounds caused by their activities. Nevertheless, litigants may retort to several normal protection hypotheses to guard themselves against claims regarding individual harm. The respondents may contend that the plaintiff did not use due consideration and were partially or entirely in charge of his or her damage. They may also claim that the plaintiff assumed the risk by voluntarily participating in a dangerous sport or activity. Consequently, the plaintiff impliedly gave the defendant permission to take the action that resulted in harming the plaintiff. To establish liability, Lance would have to show that a reasonably prudent person in the defendant’s position, Paramatta Council, would have acted differently under the circumstances (Morissette 2009).

The best action that Lance and his wife should undertake against Paramatta Council will be that of negligence that is evident in the lack of communication, unclear signs, and attractive nuisance. The council is liable to Lance for the accident caused by their negligence in the park. It should install clear signs or employ a guard to inform cyclists and other members of the community that there is a chain. It will reduce the predictable accidents that may happen at the entrance of the park.

Andrew against Smith’s Auto

In the case of Andrew vs. Smith’s Auto there existed a legally binding contract between the two parties indicated by A4 white paper (Gibson and Fraser 2010). One of the elements of a contract is acceptance, and Andrew was ignorant of its presence. He did not take the time to read the terms and conditions outlineed in the contract. The clause, “All vehicles accepted for repair subject to the terms and conditions appearing in our invoice”, binds Andrew even more to the contract. Despite the loyalty and trust to the services, he should have read the conditions of the contract before signing any documents (Poole 2012). Besides, the ignorance demonstrated by Andrew cannot hold evidence for supporting him; therefore, anything that happens as a result implies that Andrew is to blame (Osborne 2011).

The common law recognizes any written evidence as an agreement for a contract between parties. In Andrew’s case, signed invoice is a written evidence that indicates customer’s satisfaction with the work done to his car. It protects Smith’s Auto and proves that no responsibility lies with them for any repairs claimed by their client. Moreover, Andrew’s arguments are not enforceable in the court of justice because, by signing the invoice, he accepted the liability. Thus, unless Smith’s Auto are willing to help, Andrew has to suffer the damages alone, as the law cannot force the company.

The invoice also explains that Smith’s Auto should not take responsibility for any form of loss caused by theft, fire or otherwise to the customer’s cars. Therefore, damages caused to the car due to the accident are not liability to Smith’s Auto, and Andrew should repair his car once again at his own expense.

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According to the common law, the court does not recognize anything that comes after signing the contract, as it does not bind the parties to a contract. No customer’s claims regarding damages of the GPS system caused when was in the possession of the Smith’s Auto, could serve as evidence in his case against the company. However, common law uses the principle stare decisis. According to it, a judge of common law obliged to make decisions deriving some evidence from those of precedents. Perhaps, the decisions of past cases would help in solving this one.

The common law states that any agreement should have a consideration to the offer made between the contractual parties (Einseberg 1991). Besides, there should be no ignorance in any form of contact. When Andrew leaves the car for repair, he gives no account that would act as an element of the evidence and demonstrates a high degree of ignorance. Only if he had signed the invoice after receiving the car, he would have had high chances and evidence to claim for the damages as well as to proceed with the action of law.

In conclusion, Andrew should not initiate any action against Smith’s Auto because the invoice protects them and excludes any liability to the customer. Instead, he should speak to the manager of Smith’s Auto and have an amicable solution that ensures the continuity of their long business relationship (Gibson and Fraser 2010).

 
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