LAW 2447 – COMMERCIAL LAW assessment task 2 – team paper the first issue is whether peter, the plaintiff, can successfully sue evan, the defendant, for committing a tort of negligence when peter

LAW 2447 – COMMERCIAL LAW
Assessment Task 2 – Team Paper

Course’s code and name: LAW 2447 – Commercial Law
Class group: Thursday morning
Lecturer’s name: Do Thi Huong Nhu
Team number: 32
Team members: Do Khanh Huyen – s3694634

Pham Thuy Nga – s3697073
Le Hoang Phong – s3741312

Rmit University Vietnam
Hanoi
Campus


Table of Contents
Scenario 1:.................................................................................................................................................. 1
1.1 Peter v Evan:..................................................................................................................................... 1
1.2 Peter v Reid:..................................................................................................................................... 3
Scenario 2................................................................................................................................................... 5
2.1 Tom v BlackRock Café....................................................................................................................... 5
2.2 Tom v James...................................................................................................................................... 6
Scenario 4:.................................................................................................................................................. 7
4.1 Trevan v Isaac.................................................................................................................................... 7
4.2 Trevan v Olivia:............................................................................................................................... 10
Scenario 3................................................................................................................................................. 11
3.1 Loan v Trinh..................................................................................................................................... 11
3.2 Loan v Huy...................................................................................................................................... 12
3.3 Loan v Nha Trang Jump Society...................................................................................................... 13

3.4 Huy v Hospital................................................................................................................................. 14

Scenario 1:
1.1 Peter v Evan:
Legal Issues:
The first issue is whether Peter, the plaintiff, can successfully sue Evan, the defendant, for
committing a tort of negligence when Peter, who was sitting in the passenger’s seat of a vehicle,
suffered a neck injury because such vehicle skidding into the traffic light was driven by Evan, who
was driving in the state of being intoxicated by a large consumption of alcohol.

The second issue is whether Evan can claim a contributory negligence against Peter to
lower his liability when Peter allowed himself to be driven by a drunk driver and failed to
wear a seatbelt at the time of the accident.
Legal Rules:
First, it must be proven that the defendant owes the plaintiff a duty of care (DOC). In most
scenarios, it is comparatively effortless to demonstrate the existence of a DOC given that
the relationship between the defendant and the plaintiff is listed among the established
categories of DOC. If the established categories are not satisfied, in order to justify the
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existence of DOC, the ‘Neighbor test’ 1 will be utilized to prove that the defendant’s
conduct could potentially cause harm to others and the plaintiff is closely and directly
affected by the defendant’s act.
Next, it must be determined whether the defendant breached the DOC if he or she failed to
meet the required standard of care (SOC), which refers to what a reasonable person would
have done in the same position2. To ascertain the required SOC and whether the defendant
violated the DOC, the court will profoundly consider four elements: the probability of harm 3,
the likely seriousness of harm4, the cost of taking precautions5, and the social usefulness6.

Lastly, legal obligation can be divided between the two parties as the defendant can use a
‘contributory negligence’7 as a defence by providing evidence that the plaintiff was
partially negligent and thus contributed to their own injuries.
Application:
Duty of Care
It is apparent that the relationship between Evan and Peter, the driver and passenger of
the vehicle, falls within the established category of DOC – motorists and road users.
Therefore, there existed a DOC owed to Peter by Evan.
Breach of DOC
Alcohol can influence people’s judgement, reduce concentration, decrease coordination
and vision, thus, those who drive motor vehicles while being impaired by alcohol are
incapable to meet the required SOC to drive within the speed limit, cautiously observe the
traffic, cooperate with other road users and comply with traffic law. This will produce a
high probability to severe accidents. Therefore, the probability of harm in this case is high.
The likely seriousness of harm is also high as motor vehicles accidents often lead to
catastrophic consequences, including fatal injuries. Other road users, most likely
motorcyclists or pedestrians, could have been killed if they were close to the traffic light at
the time of the accident.
Regarding the burden of taking precautions, Evan could have prevented the accident to
occur by sitting in the passenger seat and letting Reid, who was sober, drive the vehicle.
Thus, the cost of taking precautions in this scenario is low.
1 Donoghue v Stevenson [1932] AC 562
2 Civil Law (Wrongs) Act 2002 (ACT) s 43(1); Civil Liability Act 2002 (NSW) s 5B(1); Civil Liability Act 2003
(Qld) s 9(1); Civil Liability Act 1936 (SA) s 32(1); Civil Liability Act 2002 (Tas) s 11(1); Wrongs Act 1958 (Vic) s
48(1); Civil Liability Act 2002 (WA) s 5B(1).
3 Bolton v Stone [1951] AC 850
4 Paris v Stepney Borough Council [1951] AC 367
5 Latimer v AEC Ltd [1953] A 643
6 Watt v Hertfordshire County Council [1954] 1 WLR 835
7 Ingram v Britten [1994] Aust Torts Reports 81-291

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There is no relevant social utility involved in this context because the defendant’s conduct
brought no advantage to the society.
Based on the examination of the four factors above, Evan has breached the DOC owed to
Peter.
Defence
Evan can make a contributory negligent defence to argue that Peter contributed to his
own injury by negligently accepting to be driven by a drunk driver and unbuckling his seat
belt at the time of accident.
Peter continued to stay in the car driven by Evan despite being aware that Evan was drunk
and under fine suspension. In the interests of his own safety, Peter could have exited the
car, but he was considerably drunk due to large consumption of alcohol and unable to
make a reliable assessment before accepting a ride home from the defendant. As Peter
was intoxicated at the time the accident took place and was counting on the care and skill
of a person knew to be intoxicated, contributory negligence on the part of Peter will be
presumed, following the Civil Liability legislation.8
Moreover, at the time of the accident, Peter failed to keep his seat belt fastened. A
presumption of contributory negligence on the part of Peter will be established, following
the Road Traffic Act9.
Conclusion:
To summarise, Evan owed and breached a DOC to Peter, caused Peter to suffer a neck
injury. Nevertheless, the judge can apportion the liability between Peter and Evan as Peter
can be held liable for contributory negligence.

1.2 Peter v Reid:
Legal Issues:
The legal issue is whether Reid, the defendant, committed a tort of negligence to Peter,
the plaintiff when Reid was warned by Peter of Evan’s state of being drunk and under

suspension, however, ignored this caution, and despite being the only sober person on the
vehicle, Reid did not insist on driving and quickly allowed Evan to drive, causing an
accident to happen and left Peter with the neck injury.
Legal Rules:

8 Civil Law (Wrongs) Act 2002 (ACT) ss 96-96; Civil Liability Act 2002 (NSW) s 50; Personal Injuries (Liabilities and
Damages) Act 2003 (NT) ss 14-15; Civil Liability Act 2003 (Qld) ss 47-49; Civil Liability Act 1936 (SA) s 46-50; Civil
Liability Act 2002 (Tas) s 5; Wrongs Act 1958 (Vic) s 14G: Civil Liability Act 2002 (WA) s 5L.
9 Civil Liability Act 1936 (SA) ss 49; Road Traffic Act 1961 (SA).
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First, the existence of a DOC must be proven. If the relationship between two parties does
not lie within the established categories, the ‘Neighbor test’ 10 will be implemented (as
cited above in the case between Peter v Evan).
Second, to determine whether the defendant has breached the DOC owed to the plaintiff,
the ‘Reasonable person test’ and four key elements of SOC will be discussed (as cited
above in the case between Peter v Evan).
Application:
Duty of Care
As the relationship between Reid and Peter is not recognized among the established
categories of DOC, the ‘Neighbor test’ is executed. First, the act of ignoring Peter’s warning
and letting a drunk person drive was potentially harmful to others. Second, as they were
riding in the same vehicle, Peter was closely and directly influenced by Reid’s behaviour.
Therefore, the ‘Neighbor test’ is satisfied and Reid owed Peter a DOC.
Breach of DOC
Reid failed to meet the required SOC as Reid’s behavior cannot be seen as what a
reasonable person would have done in the same situation. A sober person, with regards to
his own safety, would have insisted on driving instead of allowing a drunk man steer the
wheel. A reasonable person under the same circumstances as Reid would have taken

precautions agaisnt the risk of harm11.
To justify this statement, four major factors will be considered. The probability and the
likely seriousness of harm is high since letting a drunk person drive clearly not only can
cause harm to the passengers but also other road users if an accident occurred. The
highest level of seriousness of harm could have been death if other road users were
involved and killed in the crash. The cost of taking precautions in this case is low. Reid
could have refused to let Evan in the car unless he sat in the passenger seat. Moreover,
Reid could have ignored Evan’s demand and drove off to avoid any risk of harm. There is
no social usefulness involved in this case.
Based on the above analysis, Reid breached his owed DOC to Peter.
Conclusion:
Although it was not Reid’s fault that directly caused the accident, Reid’s conduct of
negligence should be held responsible for Peter’s injury, thus, Peter can successfully sue
Reid.
10 Donoghue v Stevenson [1932] AC 562
11 Civil Law (Wrongs) Act 2002 (ACT) s 43(1); Civil Liability Act 2002 (NSW) s 5B(1); Civil Liability Act 2003
(Qld) s 9(1); Civil Liability Act 1936 (SA) s 32(1); Civil Liability Act 2002 (Tas) s 11(1); Wrongs Act 1958 (Vic) s
48(1); Civil Liability Act 2002 (WA) s 5B(1).
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Scenario 2
2.1 Tom v BlackRock Café
Legal Issue
The legal issue in this case is whether Tom, the plaintiff can successfully sue Blackrock
Cafe, the defendant for committing a tort of negligence when Tom got hit by the Cafe’s
lighting grid which had crashed down on Tom and resulted in significant injuries to his neck
and spine.
Legal Rules
First, it must be verified whether the defendant owes the plaintiff a DOC. If the established

categories does not cover the relationship of two parties, to prove the presence of DOC,
the ‘Neighbor test’ 12 will be brought in. Next, to demonstrate the required SOC, the
relevant legal rules of The Council of the Shire of Wyong v Shirt will be implemented in this
scenario13. Breach of DOC is proven by taking into account four key components (as cited
above in the case of Peter v Evan).
Moreover, the defendant can utilize a ‘contributory negligence’ 14 as defense by giving
proof that the plaintiff was partially negligent and hence contributed to his own injuries.
Application:
Duty of Care
The relationship between Tom and Blackrock Café fits one of the established category of
DOC which is Occupier and Guest. Hence, Blackrock Café is proved to owe a DOC to Tom.
Breach of DOC
Blackrock Café did not meet the desired SOC because the act of not keeping the lighting
grid secured to the ceiling can potentially make it become loose and cause serious injuries
to anyone in the plaintiff’s position.
Applying four elements of SOC, it can be seen that the probability of harm is high because
considering the circumstances of the Café when the live music is meant to encourage people to be
excited and jump along, the lighting grid can easily fall down and hurt people. The likely seriousness
of harm is also high as the lightning grid is 4.5 to 5 meters big and if it falls, it will cause severe
damage to people who stand below. The plaintiff could have been unconscious if the grid hit
directly to his head. The cost of taking precaution is not expensive because Blackrock Café later
hired a builder to settle the lighting framework to the ceiling to avoid any unfortunate possibilities.
This means that the burden of taking precaution is low
12 Donoghue v Stevenson [1932] AC 562
13 The Council of the Shire of Wyong v Shirt per Mason J [1980] 146 CLR 40
14 Ingram v Britten [1994] Aust Torts Reports 81-291
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and the Café should have done this long before to prevent accidents. The social utility is

not applicable in this case.
Defence
Tom is not held liable for any contributory negligence because at the time of the accident,
he was standing still and having a conversation with Ben.
Conclusion
Based on the above analysis, Tom can successfully sue Blackrock Cafe for having a tortious
liability.

2.2 Tom v James
Legal Issue
The legal issue is whether James, the defendant, committed a tort of negligence to Tom,
the plaintiff, when James leapt onto the bar table, waved his hands around and then leapt
out at the lighting grid making the grid become loose and fall down on Tom, which left
Tom a damage to his neck and spine.
Legal Rules
First, the existence of a DOC must be proven. If the relationship between two parties is not
established among the categories, the ‘Neighbor test’15 will be implented.
Second, to verify the breach of DOC, four factors of SOC will be analysed (as cited above in
the case of Peter v Evan).
Application
Duty of Care
The relationship between Tom and James is not under any established category of DOC as
they are both guests of Blackrock Cafe. A “Neighbor test” will be applied. Tom and James
are neighbors in law because they were in the same bar, thus, James’s action potentially
caused harm to Tom closely and directly. Consequently, James owed Tom a DOC.
Breach of DOC
The probability of the harm in James’s conduct is high as his leaping onto the bar table and out like
Tarzan at the lighting grid would potentially cause it to become loose, slip out of the ceiling hook
and fall on those who are standing under the grid, leading to serious injuries. and The likely
seriousness of risk is high as his conduct could not only result in the loss of balance of those

standing underneath but also make them pass out. Cost of precautions is
15 Donoghue v Stevenson [1932] AC 562

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apparently low as he could have simply controlled himself and not jumped on the table to
avoid any accident. Lastly, the social utility is not relevant in this case. After all, James
breached his DOC owed to Tom.
Conclusion
In conclusion, James committed a tort of negligence toward Tom and can be sued by Tom
as a consequence.

Scenario 4:
4.1 Trevan v Isaac
Legal Issues:
The first issue is whether there existed a legally enforceable contract between Isaac, the
seller and Trevan, the buyer of the shorts.
The second issue is whether Trevan, the buyer, can sue Isaac, the seller, for breaching the
contract when he refused to sell the shorts to Trevan after Trevan had already informed
Isaac of his acceptance to purchase the shorts.
Legal Rules:
Rules of forming a contract:
To prove the existence of a contract between the two parties, three elements must be
satisfied: Agreement, Consideration and Intention to create legal relations.
First, a contractual agreement will be effective under these requirements: the offeror has
created an offer, the offeree has accepted the offer and the offeree has communicated
their acceptance to the offeror16.
The offeror’s offer must be clear and complete 17. Moreover, the offer must be
communicated, otherwise, it is not considered legally valid 18. Offerors are entitled to

revoke their offers anytime prior to acceptance19.

16 Smith v Hughes [1871] LR 6 QB 597

17 Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd - [2006] VSC 42
18 R v Clarke [1927] 40 CLR 227
19 Dickinson v Dodds (1876) 2 Ch D 463
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The offeree’s acceptance must be clear and complete 20. The acceptance must be effectively
communicated between two parties, otherwise, the agreement is not completed 21. The only
exception relevant to this case is the postal rule. The postal rule stated that the acceptance is
effective and validates the contract as soon as the letter of acceptance is sent, not when it is
received22. The postal rule is only applicable to postal communications and has no relevance to
instantaneous forms of communication, namely telephone calls or faxes 23.

Second, consideration is the contribution of each party and the agreement is not
enforceable without consideration24. Past consideration is invalid25 and consideration must
be sufficient for the contract to be effective26.
Lastly, intention to generate legal relations is crucial to legally enforce a contract. When
the agreement is established within a business context, each party will be presumed to be
intended to be bound27. The presumption will be refuted if the parties involved apparently
did not intend their agreement to be enforceable legally28.
Rules of negating a contract:
A formed contract can still be unenforceable if there exists a lack of formality. A legislation
that demands certain contracts to be in writing and signed to be operative and
enforceable. Regarding contracts for the sales of goods worth more than $20, they must
be evidenced in writing and signed to be legally enforceable. However, this rule only
applies in Western Australia and Tasmania29.

Application:
Agreement:
The existence of an agreement between Isaac and Trevan is justified as it met all 3
requirements. Isaac has created the offer to sell the shorts by writing a letter to Trevan and
Trevan has accepted this offer by writing back to Isaac a letter to purchase the shorts. The
acceptance of Trevan is communicated to Isaac.
20 Scammell and Nephew Ltd v Ouston [1941] 1 AC 251
21 Felthouse v Bindley [1862] 142 ER 107
22 Adams v Lindsell 106 ER 250
23 Brinkibon Ltd v Stahag Stahl Und Stahlwarenhandelsgesellschaft mbH [1983] 2 AC 34
24 Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87

25 Roscorla v Thomas [1842] 3 QB 234

26 Biotechnology Australia Pty Ltd v Pace [1988] 15 NSWLR 130
27 Edwards v Skyways Ltd [1964] 1 WLR 349
28 Rose& Frank Co v. JR Crompton & Brothers Ltd [1925] AC 445
29 Sales of Goods Act 1896 (Tas) s 9; Sales of Goods Act 1895 (WA) s 4
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The enforceability of the contract was unaffected by Isaac’s revoking the offer because the
revocation was invalid. Offerors are allowed to revoke their offers anytime before acceptance,
however, Isaac phoned Trevan to withdraw the offer after the acceptance was effective and the
contract was legally formed. Eventhough Isaac received the acceptance letter on November
17th, applying the postal rule, the acceptance already became effective by the time it was sent
on November 13th. Despite Trevan calling Isaac on November 14 th to revoke the offer and
called Isaac again to accept the offer on the same day, this was sent by instantaneous
communication, thus, it was not in effect until it is actually received by Isaac.

Considerations:
The considerations of this contract are the pair of shorts worn by player Robinho when he
played his first game for City paid by Isaac and $1000 paid by Trevan. All considerations
meet the relevant rules as they are neither exchanged in the past nor insufficent in legal
value.
Intention:
Although Isaac and Trevan are both soccer fans and presumably knew each other before
the contract, it was clear that their agreement was established in a business context, not a
domestic context. Hence, it would be presumed that the agreement had the intention to
be legally enforceable. No evidence in this case that suggested any lack of intention to
make legal relations from either party, thus, it is impossible to rebut this presumption.
Lack of formality:
Although the contract between Isaac and Trevan involved the sales of goods for more than
$20 and was not in writing and signed, the contract is established in Melbourne, thus the
addressed rule was not applicable and the contract is still legally enforceable.
Conclusion
As three crucial requirements to form a contract are satisfied, it can be summarized an enforceable
contract between Isaac and Trevan that conforms to the law existed. Therefore, Trevan can sue
Isaac for refusing to follow his legal obligation as required in the contract.

4.2 Trevan v Olivia:
Legal Issues:
The first issue is whether there existed a legally enforceable contract between Olivia, who
offered to sell Trevan the shoes Robinho had worn and Trevan, the buyer of the shoes.
Another issue is whether Trevan, the offeree, can sue Olivia, the offeror, for breaching the
contract when she sold the shoes to someone else after she promised to keep the offer
open until 30th November and after Trevan sent a letter to accept the offer.
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Legal Rules:
The relevant rules in this case are the same rules in the case of Trevan v Isaac (as cited
above in the case of Trevan v Isaac).
An additional rule relevant in this context: the offeror is given the legal right to withdraw
their offer anytime before acceptance, even if they promised to keep the offer open for a
specified time. However, if the offeree paid a deposit, the offeror’s conduct is considered a
contravention of contract30.
Application:
Agreement:
An agreement between Olivia and Trevan existed because 3 elements under agreement
are satisfied. Olivia has created and informed the offer of selling Trevan the shoes Robinho
had worn in his last game for $2000 through telephone. Trevan has accepted this offer by
posting a letter to Olivia. Trevan has communicated Olivia through post.
The contract was legally enforceable regardless of Olivia’s withdrawal. Despite having made
the promise to maintain the offer open for Trevan until November 30 th, Olivia is still entitled to
pull back her offer prior to acceptance since there was no deposit made by Trevan. However,
Olivia failed to do this prior to acceptance. Although Olivia received the acceptance letter on
November 18th, the acceptance was effective and the contract was legally enforceable as soon
as Trevan sent the letter on November 14 th, based on the postal rule. Therefore, Olivia’s
withdrawal of the offer was invalid. Moreover, her selling the goods to someone else while her
contract with Trevan had been legally formed was a breach.

Considerations:
The considerations are a pair of shoes worn by the soccer player Robinho in his last game
for RealMadrid paid by Olivia and $2000 paid by Trevan. These considerations match the
relevant legal rules since they are neither past nor insufficient.
Intention:
Since Olivia is a dealer in sports memorabilia, Olivia and Trevan’s agreement was obviously formed
under a business context. Thus, the agreement would be presumed to be intended to be
enforceable legally. There existed no proof in this case showing that any party did not intend to

create legal relations. Therefore, it is impossible to disprove this presumption.

Lack of formality:
The rule regarding the lack of formality could not be applied in this case.
Conclusion:
30 Goldsborough Mort & Co Ltd v Quinn [1910] 10 CLR 674

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It can be concluded that there was an existence of a legally enforceable contract between
Trevan and Olivia. Consequently, Trevan could successfully sue Olivia for breaching the
contract.

Scenario 3
3.1 Loan v Trinh
Legal Issue
The legal issue in this case is whether Trinh, the defendant committed a tort of negligence
to Loan, the plaintiff when Trinh was texting while driving which caused her vehicle to
knock into Loan and left Loan with an arm injury.
Legal Rules
The case should clarify the DOC between the plaintiff, Loan, and the defendant, Trinh. With the
established categories of DOC31, if it has a relationship between the defendant and plaintiff,
there will be a DOC existed (as cited above in the case between Peter v Evan). Additionally, to
identify whether he or she breached a duty of care, we need to consider the required standard
of care with four factors32 (as cited above in the case between Peter v Evan). Lastly, the
defendant can use ‘contributory negligence’ 33 as defence for the evidence of the plaintiff’s
partially negligent (as cite above in the case between Peter v Evan).

Application

Duty of care
It is obvious that there is an existence of a relationship between the plaintiff and the
defendant which exactly fit with the established category: driver and road users. At that
time, Trinh was driving in the traffic lane and Loan was walking which means Trinh owed
Loan a duty of care.
Breach a DOC
Four factors of the required SOC will determine that the defendant has breached a DOC or not.
First, Trinh was texting her friend while driving which is an action that is seriously dangerous and
harmful. Once there is a sudden approach, Trinh might not ready and calm enough to handle the
situation as all of her concentration was on her phone. Therefore, in this case, harm probability is
very high. Secondly, it is a low level in having precautions. At that time, Trinh should have put her
phone down and concentrated on driving. Actually, it is not advisable to do anything while driving.
Driving is an action that need high focus to avoid
31 Donoghue v Stevenson [ 1932) ]C 562
32 Romeo v Conservation Commission of Northern Territory [1998] 192 CLR 431)
33 Ingram v Britten [1994] ATR 81
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any fortunate incidents might happen. Next, it is apparent to know that any car crash will
bring terrible injury, including death, so that the likely seriousness of harm in this case is
high. As a result, Loan, the plaintiff, received a wounded arm which prevent her using the
parachute fluently and got a lot of injuries after that. Lastly, as the defendant’s conduct did
not bring advantage for community, there is no social utility. It can be concluded that the
defendant, Trinh, has breached a duty of care to the plaintiff, Loan with four elements
above.
Defence
Trinh can use ‘contributory negligence'34 to claim herself a defence. In fact, Loan was
intoxicated when walking because before that she had four beers at the pub which means
she was unconscious then fell into the traffic lane. Supposed that Loan had not drunk

beers then the accident would have happened. To conclude, Loan was also negligent
because it was her mistake when going in the wrong lane.
Conclusion
In summary, Trinh owed and breached a duty of care to Loan. However, Trinh could make
a contributory negligence against Loan to lessen her liability.

3.2 Loan v Huy
Legal issue
The legal issue is raised in this case is whether Loan owed Huy a tortious liability because
Loan's parachute was pulled too low, just above the ground which caused Huy serious facial
and eye injuries.
Legal rules
The DOC in this case must be proven. The ‘Neighbor test’ will be implemented if the
relationship between the plaintiff and the defendant does not match the established
categories (as cited above in the case between Peter v Evan).
Application
Loan and Huy did not have relationship that fall into the established categories in the duty of care.
Therefore, we will use ‘Neighbour test’ for this case. Huy, the defendant and Loan, the plaintiff are
‘neighbour' because they were both participate in the parachute jumping day of Nha Trang Jump
Society. Nevertheless, this is the first time Loan jump but there is an accident and she was separated
with Tung, her trainer. Then she had to jump alone. The accident with Huy was unforeseeable. As her
arm was injured in the accident with Trinh, she was prevented from pulling the parachuting on time
then the time that the parachute was pulled was too late
34 Ingram v Britten [1994] ATR 81
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and too near the ground. The result is Huy got injured. In this case, nobody can predict
that situation will happen therefore the ‘neighbour test' does not meet the standard.
Conclusion

To conclude, Loan did not commit a tort of negligence to Huy.

3.3 Loan v Nha Trang Jump Society
Legal issue
The legal issue is whether Nha Trang Jump Society committed to Loan a tort of negligence
when they carelessly forgot to check the equipment that caused Loan’s accident.
Legal Rule
The DOC between the plaintiff and the defendant must determine by examining the relationship
between two parties whether it falls into the established categories of the duty of care (as cited above
in the case between Peter v Evan). Then, it must be identified if the defendant breached the duty of
care with the required SOC (as cited above in the case between Peter v Evan).

Application
Duty of care
Nha Trang Jump Society definitely owed Loan a duty of care because the relationship between them
just fall into the established categories of the DOC, that is service provider and customer.

Breach a DOC
The level of the probability of harm is low. If Loan was prepared carefully with enough
equipment to have a safer parachuting jump, the accident would not happen easy like that. As
stated in the Bolton v Stone (1951), the defendant will be more committed if the probability
of harm is high. However, with this case, the defendant is likely to have more support.
Secondly, the likely seriousness of harm is also high because parachute jumping is a kind of
extreme sport. It will be very dangerous to player’s life if there is any carelessness in
preparing part and less experienced. Moreover, the burden of taking precautions to avoid the
risk of harm in this care is low as the little effort and cost of checking the safety of equipment
before jumping. Lastly, the social utility must be considered. Supposed that they forgot to
check the equipment but it does not bring any benefits to the community.
After considering four factors of the required standard of care, Nha Trang Jump Society
has breached a duty of care with Loan

Defence
Nha Trang Jump Society can claim a defence because it was Loan’s fault for not telling them
that she had a bruised arm. If she told them that before being there that she had an accident
which lead to her health did not meet the requirement, the instructor would have not
allowed her to jump and there would be no accident.
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Conclusion
To sum up, Loan could successfully sue Nha Trang Jump Society for breaching their owed DOC
to her. Nonetheless, Nha Trang Jump Society could make a contributory negligence against
Loan and lower her liability.

3.4 Huy v Hospital
Legal issue
The legal issue is whether the hospital could be sued for a tort of negligence by Huy when
Huy fell down the slippery hospital stairs on the way to visit the garden.
Legal rules
Following the rule in the case between Loan v Trinh, a DOC must be proved with the
relationship of two parties and breach a DOC should be clarified (as cited above in the
case between Peter v Evan).
Application
Duty of care
The relationship between Huy and the hospital has exactly fall into the established categories
of the DOC, which is the relationship of the hospital and the patient. Consequently, the
hospital owed Huy a DOC.
Breach a DOC
As the cleaners of the hospital did not fulfill their responsibility to keep the stairs way dry,
the probability of harm is very high because people could have slipped and suffered
injuries. Secondly, the likely seriousness of harm is also high because falling from the stairs

way might cause broken leg, arm or even death. Thirdly, the hospital could simply put at the
stairway a caution sign for people if they have not finished the cleaning process which
means the burden of taking precaution is low. Social utility will not be counted in this case
as the action of not cleaning the stairway in time does not benefit the society.
Conclusion
To concude, the hospital could be successfully sued for committing a tort of negligence to Huy.

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