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Thread: Law Question [torts]

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    Law Question [torts]

    hey, I was wondering if anyone could help me out with a tutorial question that I have for my business law unit.

    A) Sheila went to Target in the Hay Street Mall and found an "Alf" doll on the shelf with a price tag of $33. Alf was a talking doll who, when you squeezed his arm, could recite more than 100 insults and swear words. She took Alf to one of the check-out lines but the cashier refused to take her money because, apparently, the price sticker had a typographical error (or just as likely, had been switched around by a vandal). The correct price was $79. Can Sheila insist that they sell her Alf for $33?

    B) Alternative scenario: Alf is correctly priced at $79 but it was a busy Friday night and there was a long line at every cashier. Rather than miss the start of the movie at Hoyt's Cinema where she was meeting some friends, Sheila dashed for the exit. Not wanting to take the time to replace it on the shelf, Sheila put Alf onto the floor and kicked it out of sight under a piece of furniture. Unfortunately, the continuous pressure from being jammed in under the furniture soon caused Alf to swear himself to death before he could be rescued (his little motor overheated and expired!). Alf was repairable at a cost of $65. A security guard witnessed all this and lightly tapped Sheila on the shoulder before she reached the only exit to the store. He stated:

    "You must go rescue that Alf doll and purchase it. Otherwise, you stay right here while I call the police on this mobile phone."

    Sheila responded:

    "I'm in a rush and have to go, but if you have a problem here is my business card with my picture, address and telephone number on it. You can find me if you have to."

    The security guard just repeated his statement that Sheila had to buy the damaged goods or wait for the police.

    Must Sheila do either?

    Consider carefully the potential causes of actions between Sheila and Target under the alternative scenario. (keep in mind the doctrine of "vicarious liability", though you do NOT have to discuss that doctrine)

    ***

    The thing that I'm not sure about with A) is what area of torts (if any!) it falls into. I have a feeling that this question has to do with the Sales of goods act but we haven't covered that in class yet. So I'm just really unsure about it.


    For the most part I understand B) but we have limited notes in our texts on this area of torts, does anyone have any extra advice?

    So does anyone have any like tips or anything at all to help me tackle the question … I’m not trying to get our of doing my work and I don’t expect anyone to like totally write the answer or anything but I just find this situation weird in relation to the things we’ve been learning.

    thanks

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    Well, the unit is intro to law udy is and one of the areas of studies is torts. I thought part A could possibly refer to the tort of deceit(?) or interference with contractual relations. Part B of the question I think refers to partly false imprisionment and maybe negligence.

    See the problem is that I think the situations that were given were hard to match to any of the course work we've done...

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    Quote Originally Posted by Cookiez_n_Cream
    Well, the unit is intro to law udy is and one of the areas of studies is torts. I thought part A could possibly refer to the tort of deceit(?) or interference with contractual relations. Part B of the question I think refers to partly false imprisionment and maybe negligence.

    See the problem is that I think the situations that were given were hard to match to any of the course work we've done...
    What the hell does vicarious liability have to do with anything?
    I can only see the store being v.liable for any alleged negligence of the security guard
    B Commerce (UNSW), GradDipCA
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    Alumni Minai's Avatar
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    so where does vicarious liability come into it?
    B Commerce (UNSW), GradDipCA
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    it seems to me like these are just hypotheticals but no acts or omissions have yet been committed, so i really can't see that an actual 'tort' has been committed. part a) i think isn't a tort rite? and part b) perhaps there's false imprisonment if the security guard had unlawfully detained her??!?!?!
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    Least helpful thread I have ever seen.

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    Rambling Spirit santaslayer's Avatar
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    Quote Originally Posted by Cookiez_n_Cream
    hey, I was wondering if anyone could help me out with a tutorial question that I have for my business law unit.

    A) Sheila went to Target in the Hay Street Mall and found an "Alf" doll on the shelf with a price tag of $33. Alf was a talking doll who, when you squeezed his arm, could recite more than 100 insults and swear words. She took Alf to one of the check-out lines but the cashier refused to take her money because, apparently, the price sticker had a typographical error (or just as likely, had been switched around by a vandal). The correct price was $79. Can Sheila insist that they sell her Alf for $33?

    B) Alternative scenario: Alf is correctly priced at $79 but it was a busy Friday night and there was a long line at every cashier. Rather than miss the start of the movie at Hoyt's Cinema where she was meeting some friends, Sheila dashed for the exit. Not wanting to take the time to replace it on the shelf, Sheila put Alf onto the floor and kicked it out of sight under a piece of furniture. Unfortunately, the continuous pressure from being jammed in under the furniture soon caused Alf to swear himself to death before he could be rescued (his little motor overheated and expired!). Alf was repairable at a cost of $65. A security guard witnessed all this and lightly tapped Sheila on the shoulder before she reached the only exit to the store. He stated:

    "You must go rescue that Alf doll and purchase it. Otherwise, you stay right here while I call the police on this mobile phone."

    Sheila responded:

    "I'm in a rush and have to go, but if you have a problem here is my business card with my picture, address and telephone number on it. You can find me if you have to."

    The security guard just repeated his statement that Sheila had to buy the damaged goods or wait for the police.

    Must Sheila do either?

    Consider carefully the potential causes of actions between Sheila and Target under the alternative scenario. (keep in mind the doctrine of "vicarious liability", though you do NOT have to discuss that doctrine)

    ***

    The thing that I'm not sure about with A) is what area of torts (if any!) it falls into. I have a feeling that this question has to do with the Sales of goods act but we haven't covered that in class yet. So I'm just really unsure about it.


    For the most part I understand B) but we have limited notes in our texts on this area of torts, does anyone have any extra advice?

    So does anyone have any like tips or anything at all to help me tackle the question … I’m not trying to get our of doing my work and I don’t expect anyone to like totally write the answer or anything but I just find this situation weird in relation to the things we’ve been learning.

    thanks
    1) Where's Lazarus?

    a) Isn't that about Contract Law? Something to do with invitation to treat? The displaying of a good and pricing of it does not automatically give consent to the potential consumer to purchase it. I don't see any tort involved?


    b) I have no idea. Sounds like what you would read in a comic book or something. Sorry.
    B Commerce/ B Laws :uhhuh:
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    Retired Lazarus's Avatar
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    There are a few potential tortious actions... nothing major though. I've written up the first few things that came to mind when I read through your post - you'll want to investigate further though.


    Quote Originally Posted by Cookiez_n_Cream
    A) Sheila went to Target in the Hay Street Mall and found an "Alf" doll on the shelf with a price tag of $33. Alf was a talking doll who, when you squeezed his arm, could recite more than 100 insults and swear words. She took Alf to one of the check-out lines but the cashier refused to take her money because, apparently, the price sticker had a typographical error (or just as likely, had been switched around by a vandal). The correct price was $79. Can Sheila insist that they sell her Alf for $33?
    Contract
    This scenario is covered by standard contract law - as SantaSlayer said, the display of an item on a shelf (even with a price tag) does not constitute an offer and is merely an invitation to treat: Pharmaceutical Society of Great Britain v Boots Cash Chemists. Sheila is therefore making an offer to the store to purchase the Alf doll for $33, which the store is entitled to reject.

    Tort
    It could potentially be argued that the store was negligent in failing to ensure that the proper price tags were displayed. However, as no harm has been suffered, there can no action for negligence. Alternatively, the store may have made a negligent misstatement when advertising the lower price...


    Quote Originally Posted by Cookiez_n_Cream
    B) Alternative scenario: Alf is correctly priced at $79 but it was a busy Friday night and there was a long line at every cashier. Rather than miss the start of the movie at Hoyt's Cinema where she was meeting some friends, Sheila dashed for the exit. Not wanting to take the time to replace it on the shelf, Sheila put Alf onto the floor and kicked it out of sight under a piece of furniture. Unfortunately, the continuous pressure from being jammed in under the furniture soon caused Alf to swear himself to death before he could be rescued (his little motor overheated and expired!). Alf was repairable at a cost of $65.
    The damage to the Alf doll may constitute an act of conversion. Conversion is the wrongful exercise of dominion over the property of another: Maynegrain v Compafina. Sheila would be liable for damages to the full value of the goods: Howard Perry v British Railway. Upon payment of those damages, ownership of the doll will pass to Sheila.


    Quote Originally Posted by Cookiez_n_Cream
    A security guard witnessed all this and lightly tapped Sheila on the shoulder before she reached the only exit to the store.
    It could be argued that the guard's physical contact constituted battery. However, as a "light tap" is the type of thing that is likely to occur in everyday life, the claim will not be actionable.


    Quote Originally Posted by Cookiez_n_Cream
    He stated:

    "You must go rescue that Alf doll and purchase it. Otherwise, you stay right here while I call the police on this mobile phone."

    Sheila responded:

    "I'm in a rush and have to go, but if you have a problem here is my business card with my picture, address and telephone number on it. You can find me if you have to."

    The security guard just repeated his statement that Sheila had to buy the damaged goods or wait for the police.

    Must Sheila do either?
    Sheila's refusal to return the Alf doll to the store could potentially constitute an act of detinue. Detinue is the wrongful retention of goods following their lawful demand for return: Horsley v Phillips Fine Art. If the claim is successful, Sheila would be liable for damages to the full value of the goods: Howard Perry v British Railway. Such a claim is unlikely to succeed, however, as the doll was never taken from the store.

    The guard's statement to Sheila, instructing her to remain in the store, may also constitute false imprisonment. A person is falsely imprisoned where, due to the act of another, they are imprisoned in a closed area with no reasonable means of escape. (It's been a while since I've done false imprisonment, can't quite remember the tests.) Sheila would be entitled to nominal damages, if successful.

    Under the doctrine of vicarious liability, Target may also be liable for any of the guard's actions if they were performed in the course of his employment.
    Lazarus
    Et in arcadia ego...

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    thanks laz..

    Thanks for the help with the question. I was also wondering if buying a good from a store and carrying it to a the counter would be considered bailment?

    And I was looking for information about the "if you break it you buy it"(the alternative) theory. Is it just conversion and detinue? Because that's what I originally thought but those two torts refer to "chattels" ~ personal property, not retail...

    A lot of people have said that the question is a bit vague and we're not allowed to refer to the sales of goods act.

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    Another thing...

    Would it be trespass to chattels instead of conversion in the alternative situation. Because conversion is normally either theft or unrepairable damage and trespass to chatel is minor damage.

    But then why would a retailer try to resell repaired damaged goods ....


    Is there a distinction between these two in the case of retail?

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    regards the first scenario also, isn't there some retailers' regulation that should an item be advertised at the shelf at lower than the scanned price, the advertised price is accepted?

    (*not being sycophantic*) as ultra-pedantic laz is, tim, at least he realises the dialetic nature of the scenario and accordingly makes arguments for both sides.
    Last edited by Frigid; 21 Aug 2004 at 2:27 PM.

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    what a stupid set of questions...

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    Rambling Spirit santaslayer's Avatar
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    Quote Originally Posted by Frigid
    regards the first scenario also, isn't there some retailers' regulation that should an item be advertised at the shelf at lower than the scanned price, the advertised price is accepted?.

    I always thought that was an act of goodwill from the company rather than a regulation?
    B Commerce/ B Laws :uhhuh:
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    Quote Originally Posted by Cookiez_n_Cream
    I was also wondering if buying a good from a store and carrying it to a the counter would be considered bailment?
    I suppose it's arguable... it's not really the intuitive characterisation of the law, though.


    Quote Originally Posted by Cookiez_n_Cream
    And I was looking for information about the "if you break it you buy it"(the alternative) theory. Is it just conversion and detinue? Because that's what I originally thought but those two torts refer to "chattels" ~ personal property, not retail...
    As far as I'm aware, there is no distinction between "trespass to chattels" and the torts of conversion and detinue - the latter are simply the torts that correspond to the former. The "you break it, you bought it" doctrine is really just the equivalent of a successful action in conversion.

    Retail goods are the personal property of the vendor. Personal in the sense that some entity has title in them.


    Quote Originally Posted by santaslayer
    I always thought that was an act of goodwill from the company rather than a regulation?
    I'm inclined to agree... unless it's specified in legislation somewhere.
    Lazarus
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    I agree with my brethren Lazarus CJ for the reasons given in his spiel

    I would add a few words on the following:

    (a) False imprisonment on the part of the security guard
    For false imprisonment there must be total restraint, entailing no reasonable means of escape. Certainly psychological imprisonment fulfils this criteron as recognised by the courts. See Symes v Mahon [1922] SASR 447; It would be more persuassive if we were told of her actions - whether there was a submission to the security guard's will.

    (b) Battery on the part of the security guard
    There is no doubt that a tap on the shoulder could be a battery. See Rixon v Star City Pty Ltd - any touching of another person, however slight may amount to a battery. The question seems to be whether the physical contact was in excess of that "generally acceptable in everyday life." On the facts here, it seems very reasonable, and subsequently acceptable.

    (c) Conversion - alf
    I will just mention that destruction of the chattel is conversion: Atkinson v Richardson.

    (d) Bailment - alf
    There is no bailment. A bailment arises from a relationship between two or more people concerning an object delivered with the promise to redeliver the exact same thing. I don't see the logic in saying there was a bailment here.

    (e) 'Trespass to the chattel' - alf
    Although the action should specifically go under conversion, broadly this requires an intentional/negligent act which directly interferes with the with the plaintiff’s possession of a chattel without lawful justification. However the plaintiff must have actual or constructive possession at the time of interference.

    (f) The price tag
    This is an interesting one. It is certainly the policy of many department stores that if you have two prices, the tag and the scanned price, you will get the lower price. However once when a customer told me that "it was the law" I informed them politely that, though it was our policy, it was not in fact "the law," for the reasons given by Laz. The only other thing I can think of, which you probably haven't been told to look at, is misleading and deceptive conduct - TPA.

    (g) Alf
    "being jammed in under the furniture soon caused Alf to swear himself to death"
    hahaha


    Hope this helps
    Last edited by MoonlightSonata; 4 Sep 2004 at 10:34 AM. Reason: tag issues

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    Just have a question bout negligent torts – if you are (x) at a supermarket and another customer (y) drops a liquid product on the floor (unintentionally) which you then slip on and break your leg, do you (x) sue the supermarket or the customer (y)? are there any cases similar to this?

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    Quote Originally Posted by Fcuk!
    Just have a question bout negligent torts – if you are (x) at a supermarket and another customer (y) drops a liquid product on the floor (unintentionally) which you then slip on and break your leg, do you (x) sue the supermarket or the customer (y)? are there any cases similar to this?
    Sue both. Of course, the Supermarket will probably have more money.

    Closest I can think of is Franklins Limited v Hunter [1998], but that doesnt have multiple respondants.

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    Quote Originally Posted by Fcuk!
    Just have a question bout negligent torts – if you are (x) at a supermarket and another customer (y) drops a liquid product on the floor (unintentionally) which you then slip on and break your leg, do you (x) sue the supermarket or the customer (y)? are there any cases similar to this?
    my pre-tort law gut instinct tells me you sue customer (y).

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    thanks for your replies. i thought it might be the supermarket where it is their responsibility to keep the supermarket in a certain condition. could you bring a seperate action against both of them?

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    thats what i thought. in a case where theres a company/organisation involved and mutiple respondents, is there a way to determine who you can sue? and if its both, through seperate actions or in the same?

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    QUESTION ONE

    James is an engineer working in project management in a merchant bank. His girlfriend Megan is a town planner. They have been living together in rented flats for five years and in late 2003 decided to think about investing together as well as buying a house. James discussed this with his work mates and friends Marty and Paul, in various investment divisions with the bank. Marty, a commercial lawyer, told him to get into the Sydney real estate market as this was easily the best investment around. Paul, a financial adviser, agreed that real estate was generally best although he said there had been rumours about Federal Capital Gains taxes being increased to a higher rate. James passed all this information on to Megan, who also told her mother Jenny.

    James and Megan borrow $650,000.00 from the bank and used this and their savings to buy a property at Manly. They rented the property to some students from UWS and moved in with Jenny in her home to save some extra money. Jenny sold most of her bank shares and bought another property close in Manly, which she rented to students from University of Sydney. None of them tried to get any other financial advice.

    In April 2004 the government of New South Wales announced a mini budget and imposed a new land tax on all investment properties. The property market in Sydney collapses and all three investors discover that their properties are now worth less that 80% of what they paid earlier in the year. Jenny is particularly upset as her shares would have maintained their value if she had not sold to but the property. As a result of the investment disaster Jenny suffers severe stress leading to clinical depression. She is unable to work in her usual occupation again.


    Advise James, Megan and Jenny of any right they may have in this situation in the law of Negligence ONLY, giving full legal authority for your answers. Against whom would those rights, if any, be exercised, and why?
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    can someone help give advice on this question.
    Last edited by theone123; 12 Sep 2004 at 4:21 PM.
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    Alumni Minai's Avatar
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    Quote Originally Posted by Fcuk!
    thanks for your replies. i thought it might be the supermarket where it is their responsibility to keep the supermarket in a certain condition. could you bring a seperate action against both of them?
    having done torts last semester..
    basically sue both - but always focus on the party that has the MOST money, which would obviously be the supermarket. Both parties could potentially be found negligent, but it makes more sense to sue the supermarket
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    Alumni Minai's Avatar
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    Quote Originally Posted by theone123
    can something help give advice on this question.
    this question is fairly complex, and hard for me to answer without any casebooks
    but yeah, context is important here - assuming we're talking about negligence on Paul and Marty's part ... did James & Megan pay Marty & Paul for the advice? was it reasonable for james & megan to rely on the advice, based on the setting (ie, was it over drinks at a pub, or in a formal meeting at an office).
    Also, the fact they did not consult further advice could work against them...in regard to them not doing everything in their capacity to protect themselves from pure economic loss

    There should be significant cases that address most of the issues in that question..just pull up a Torts/negligence textbook and read up on the "pure economic loss" sections
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    I've pointed out the obvious issues below:


    James is an engineer working in project management in a merchant bank. His girlfriend Megan is a town planner. They have been living together in rented flats for five years (evidence of a close and loving - de facto - relationship) and in late 2003 decided to think about investing together as well as buying a house. James discussed this with his work mates and friends Marty and Paul (was the discussion simply 'as friends', or were his workmates discussing the issue in their capacity as 'experts'), in various investment divisions with the bank. Marty, a commercial lawyer (unlikely to be an expert on investments), told him to get into the Sydney real estate market as this was easily the best investment around (this could amount to a negligent misstatement). Paul, a financial adviser (and possibly an expert on investments), agreed that real estate was generally best although he said there had been rumours about Federal Capital Gains taxes being increased to a higher rate (provided warning of a risk - may still amount to a negligent misstatement - implies assumption of responsibility). James passed all this information on to Megan, who also told her mother Jenny (evidence of a close and loving relationship).

    James and Megan borrow $650,000.00 from the bank and used this and their savings to buy a property at Manly. They rented the property to some students from UWS and moved in with Jenny in her home to save some extra money. Jenny sold most of her bank shares and bought another property close in Manly, which she rented to students from University of Sydney. None of them tried to get any other financial advice (evidence of reliance on the statements of the lawyer and financial advisor - but that reliance might not be reasonable).

    In April 2004 the government of New South Wales announced a mini budget and imposed a new land tax on all investment properties (this is fine unless the tax was ultra vires - it probably wasn't). The property market in Sydney collapses and all three investors discover that their properties are now worth less that 80% of what they paid earlier in the year. Jenny is particularly upset as her shares would have maintained their value if she had not sold to but the property (kind of damage - pure economic loss). As a result of the investment disaster Jenny suffers severe stress leading to clinical depression (kind of damage - nervous shock/mental harm). She is unable to work in her usual occupation again (kind of damage - loss of earning capacity).

    Advise James, Megan and Jenny of any right they may have in this situation in the law of Negligence ONLY, giving full legal authority for your answers. Against whom would those rights, if any, be exercised, and why?
    They may all potentially have actions in negligence against Marty and Paul. Actions involving each of the following categories add extra tests that need to be satisfied in order for a duty of care to be held:

    For negligent misstatements, see:
    Hedley Byrne v Heller [1964] AC 465
    Esanda Finance v Peat Marwick Hungerfords (1997) 188 CLR 241
    Tepko v Water Board (2001) 206 CLR 1

    For pure economic loss, see:
    Perre v Apand (1999) 198 CLR 180
    Hill v Van Erp (1997) 188 CLR 159
    Caltex Oil v The Dredge "Willemstad" (1976) 136 CLR 529

    For nervous shock/mental harm, see:
    Gifford v Strang Patrick Stevedoring (2003) 198 ALR 100

    The tests for breach of duty and the other stages remain the same as in a regular negligence action.

    I'll leave it to you to work out how all of the above pieces fit together.

    [Edit: Once again, Minai managed to summarise my post into a few sentences... :P]
    Lazarus
    Et in arcadia ego...

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