- Internal Code :
- Subject Code : HA2022
- University : Holmes Institute
- Subject Name : Business law
Business Law
Business Law Week 1 Question
Whether the suspension of a player for an offence under the rules of the game is a rule or law.
There are a myriad of explanations of what law and rules entail. In brief, a rule can be defined as a guideline that prescribes or outlines the intended and expected standard of behaviour passed by organizations or individuals. Law on the other hand can be described as the rules passed by the authorised entities or mandated bodies such as parliament which get to apply to all persons in the society (Australian Crime Commission, 2013).
The consensus is that, the rules are set by organizations which in this case involve the sport’s governing bodies which are established by the law. The interest of the courts is directed towards the law, the rules are mostly applied for persuasion nature or where the rule contravenes the law.
In the sport arena, the governing bodies as alluded to the National Rugby League or the Australian Football League and the respective tribunals have the powers to suspend a player in accordance with the veracity of the offence committed. The suspension of a player is pursuant to the rules that govern the respective sport since there are different guidelines to different sports.
The suspension of a player by the relevant organizations is subject to the rules governing the organization but most importantly, the rules and organizations draw their validity from the law establishing them. Thus, it’s a rule not law.
Business Law Week 2 Question
The Doctrine of Binding Precedent
The doctrine of precedent is a restraint imposed upon the judges and/ or magistrates to apply the reasoning and principles of the past cases facing the same facts or issues. The doctrine apples two-fold, in a court with jurisdiction to note follow the past cases, the same will be of a persuasive function. The cases of lower standing like the Magistrates Courts will be bound by the past cases emanating from the superior courts and thus binding upon them.
Prof. Mathew Harding, (2013) discerns that the general idea behind this doctrine is to ensure proper respect is done on the past cases while the judges or magistrates are litigating upon their present cases (Prof. Mathew Harding, 2013).
Mathew Harding, (2013), analyses two key issues posed by the doctrine of precedent as below stated:
i. The implications of this doctrine to state and the territorial courts of appeal.
ii. Instances where this doctrine may fail to be applied.
i. The implications of this doctrine to state and the territorial courts of appeal
An analysis of the case of Farah Constructions Pty Ltd V Say-Dee Pty Ltd [2007] HCA 22 before the High Court is done. The effects of this landmark case is unparalleled in many ways. First, in as much as the courts were bound to follow the High Court’s decisions, the common belief was that only the elements thereto were applicable it was believed that only the ratio decidendi (considerations/ grounds the court takes to derive its decisions) were applicable. Through this case, it was established that the obiter dicta (observations made by the court as a by the way and no relevance to the case at hand but a commentary or observation on a given set of facts or law) were also to be considered relevant by the courts in applying the doctrine of precedent.
This case further in casting the applicability of this doctrine territorially into certainty suggested that Court of Appeal and territories in Australia are bound by it but the applicability of the obiter dicta was put into question by a plethora of legal scholars as its relevance in matters have no much weights.
ii. Instances where this doctrine may fail to be applied.
It is a common position that the High Court is not bound to follow its past decisions unless its one of similar facts. Exceptions to the doctrine are made where the facts of the earlier cases are not exactly similar. The presiding judge or officer has the option to applying or deriving their own principles in the given set of facts depending with the context they are in.
The superior courts have no mandate to follow the decisions of the lower or subordinate courts. This doctrine therefore applies downwards and not upwards. It applies from the highest courts on land to the lowest. This position has been depicted in the case of Imbree v McNeily [2008] HCA 40 where the High Court abandoned applying a case of similar facts in Cook v Cook [1986] HCA 73 and took another approach.
Business Law Week 3 Question
a. Whether frank can sue the local council or the football club for negligence
Frank while watching football sustained injuries on his arm and seeks redress against the Local Council or the Football Club for the consequent injury.
The elements of proving negligence which entail the duty of care, breach of the duty of care and the consequential harm or injury will be satisfied.
The club and the council owe a duty of care to Frank and the other spectators, the duty in this instance can be waived where there are risks pertinent to the enjoyment as it is in this case.
Section 53 of the Wrongs Act introduces the “obvious risk” factor which accordingly states that is a risk which in the circumstances sounds obvious to a reasonable man if they were in that same position which is also applicable here.
The Presumption of assumed risk takes course where a spectator or a fan get to have the understanding that there is a likelihood of flying objects coming their way while on the stands/ stadium.
As outlined by Danny Masel SC and Diana Costaras, (2015), vide the case of Dodge v Snell [2011] TASSC 19 at [223] where the court held that;
“For the injured person to prove that they were not aware, they need therefore prove on the balance of probabilities that they were not even aware of the type or kind of risk that eventuated”
Frank can only have a recourse against the local authority severally or jointly if shown that the act could have been avoided. In this case, he willingly went to watch the football but failed to do take the reasonable steps to evade the ball coming his way and therefore cannot seek redress from the court as it is one of the risks involved in the sport. Having said that, Frank has little chances of proving negligence against the council or club and thus will most likely fail.
b. Defenses that the council or club may raise against frank
The council and the club have a defence against Frank under the defence of volenti non fit injuria which relatively translates to the voluntary assumption of risk. This is the common defence raised against negligence.
This position has been reiterated by Danny Masel SC and Diana Costaras, (2015) who They supplement this position by quoting Chief Justice Gleeson who at the High court observed in Agar v Hyde that:
“People who pursue recreational activities regarded as sports often do so in hazardous circumstances; the element of danger may add to the enjoyment of the activity. Accepting risk, sometimes to a high degree, is part of many sports.”
The defence of voluntary assumption of risk is directed to making the unnecessary suits before the courts over injuries sustained by the spectators while doing their recreational activities. It most importantly is the guard against the flood gates rule of case laws of this nature (Danny Masel SC and Diana Costaras, 2015).
With this defence, the council and the club are most likely to be absolved of any liability towards Frank.
Business Law Week 4 Question
Doctrine of Vicarious Liability and Its Elements
The doctrine envisages that an employer is liable for the acts of its employee in the course of his/ her employment. This mostly applies to persons employed under the conrtact of employment. Those under contract for employment will be held liable in their own rationale as they don’t work under the supervision of the employer or person on the receiving end of the contract.
The elements need to establish or proof this doctrine can be summed up as here under:
- The control test;
- Organization test; and,
- Multiple tests
The Control Test
The test implied herein is whether the employee exercises some form of control over the employee or wrongdoer in order to establish the employer- employee relationship. This will relate to the nature of the control in terms of payment, duties given to the employee and the direction or relevance of the act done in the course of the wrongful act.
Organization Test
This implies that the employer will be held liable if they fail to emphasize and elaborate on the integrity. This basically relates to the profits and benefits accrued by the employer in the course of the employee’s workmanship. It also relates to the prevalent skills that cannot necessarily be subject to control such as the medical field and thus developed to supplement the control test.
Multiple Tests
This test acts as the allocator of the financial risk. This is the test that differentiates between the persons under a contract of employment or contract for employment. This was laid down in the landmark case of Ready Mixed Concrete v Minister of Pensions and National Insurance (1968) 2 QB 497 where the three essentials of a contract of service were laid out as:
- servant agrees to provide skill in exchange of something from the employee such as wages or other form of consideration;
- the servant agrees to some form of control by the employer in respect to the employment; and,
- the contractual terms are consistent with that of a contract of service.
In Australia, the law governing vicarious liability and the wrongful acts thereto are the Wrongs and Other Acts (Law of Negligence) Act of 2003 as well as its subsequent amendments.
Joachim Dietrich and Iain Field, (2019) discuss two parallel and competing theories pertaining vicarious liability. The theories are the Master’s Tort Theory and the Servant’s Tort Theory. The former states that an employer is liable for the employee’s wrongful act because the liability of the employee in employment is attributed to the employer. The latter theory holds that the wrongful act by the employee is attributed to the employer (Joachim Dietrich and Iain Field, 2019)
Business Law Week 5 Question
Whether There Exists a Valid Contract
Pursuant to the legal requirements of a contract, the elements of a contract being offer, acceptance, consideration and the intention to create a legal relation need to be present to make any contract valid. Greta in making her car open to the market did not disclose the amount she intends to sell the car at. Sam turned up with $ 2, 000 contrasted to the intended however not well communicated intended amount Greta sought of $ 2, 500.
Through their communication, there was failure of the buyer Sam to inquiring into the exact amount for consideration. Greta in her response to the price that she intended to sell the car valued it at a couple of thousand dollars. This in itself is quite vague for a consideration.
The contract is therefore void for failing to satisfy one element of the contract. The uncertainty of the consideration of the subject matter which is one of the most essential elements is lacking herein for uncertainty, ambiguity and lack of consent from Greta who is the seller.
There is therefore no contract between Greta and Sam.
References for Business Law
Australian Crime Commission, (2013). ‘Organized Crime and Drugs in sport’ Sport and the Rule of Law Australia.
Danny Masel SC and Diana Costaras, (2015). ‘Voluntary Assumption of Risk’ Sporting injuries and Voluntary Assumption of Risk.
Joachim Dietrich and Iain Field, (2019). ‘Statute and Theories of Vicarious Liability’ 43(2) Melbourne University Law Review (advance).
Prof. Mathew Harding, (2013). ‘The High Court and the Doctrine of Precedent’ on opinions of the High Court.
<http://www.crimecommission.gov.au/sites/default/files/files/organised-crime-and-drugsin-sports-feb2013.pdf>
<https://blogs.unimelb.edu.au/opinionhigh/2017/07/18/harding-precedent/>
Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Business Law Assignment Help