BUSI 2301 : Business Law : Function of Law in the Society

1. Explaintwo (2) functions of law in the business environment and support your answer with reference to two (2) Acts of Parliament.  

2. Identifyfour (4) sources of New Zealand’s constitution.

4. Explainthe three (3) ways in which parliament is said to be “supreme” or sovereign.

 

5. Briefly explainhow the Mixed Member Proportional system of voting operates in New Zealand.

6. Explain the meaning of “sovereignty’ as used in Article One of the English version of the Treaty of Waitangi and “kawangatanga” as used in Article One of the Maori version of Te Tiriti o Waitangi and discuss the role of the Waitangi Tribunal in reconciling these different interpretations.  

 

7. The decision of the Court of Appeal in NZ Maori Council v Attorney General [1987] 1NZLR 641 was seen as a landmark case in the history of the Treaty of Waitangi.  Explain one (1) reason why this case is considered legally  

 

Access to the courts and barriers to justice

a. A claim for breach of an insurance contract seeking $4,480,000 in damages.

b. A claim in negligence for the sum of $111,000.

 

9. Discussthe effectiveness of The Disputes Tribunals Act 1986 in providing citizens with affordable and accessible resolution of civil disputes.

1. Imran wishes to bring a claim against Sharon in negligence. Explain what the legal requirements are and advise whether Imran has grounds for legal action.  

Section 1

1. The function of law of is to make sure that minimally accepted behaviour is at least maintained in the society. For instance a person in the society does not have the right to infringe the privacy of a person as it is not an accepted behaviour. The legislation in relation to privacy is Privacy Act 1993

Another function of law in the society is to ensure the protection of rights and liberties of a person. For instance every person has the right to be treated equally without any discrimination against gender, race, sex, disability or marital status. The legislation in relation to discrimination is Human Rights Act 1993 (Black, 2018)

2.  The four sources of constitution of NZ are

1. The treaty of Waitangi
2. Common Law
3. International conventions
4. Customs (Dubber and Tomlins, 2018)

3. The three main institution of the government are as follows

The Legislature – the legislature s the wing of the government which has been provided with the responsibility of making the law and rules to govern the laws

This responsibility is provided to the parliament

The Judiciary- This is the wing of the government which has the responsibility of interpreting and applying the law in the provided situations. The judges have the responsibility if doing so.

The executive – This is the wing of the government which has the responsibility of implementing the law applied by the judiciary. They impose the decision of the judges on to the specific party. These functions are carried out by agencies such as the Police.

All three departments of the government are independent of each other. This means that they cannot interfere in the functions of each other. For instance the police can punish a minister and the judge can prevent a law from coming to existence on basis of invalidity (Xuefei,2018).

4. The three ways which makes the parliament supreme or sovereign are as follows

1. The parliament can create or end any law based on its will if it complies with the constitution. It has the right to legislate in any area as allowed by the constitution.
2. No external influence can be provided on the parliament in relation to its functions. International conventions and treaties are only binding if the parliament assents to them.
3. It has supremacy over all other government institutions such as the judiciary and executives (Xuefei, 2018).

5. The Mixed Member Proportional system is a form of mixed electoral system where voters are provided with two votes. The first vote is to decide the representative with respect to a single-seat constituency and the other for selecting a political party. Successful constituency candidates first fill the seats in the legislature and then by the party candidates relying upon nationwide votes provided to the parties. First past the post voting method or majoritarian system is used for electing the constituency representatives. Published party lists are used for deriving the region-wide or nationwide representatives (Dubber & Tomlins, 2018).

6. The definition of the words Kawanatanga is in relation to governing power. The English version of the treaty has used the word sovereignty in it. Thus in treaty in its English version signifies that the members of the confederation with the chief being included in them have provided sovereign or supreme authority to the British crown in terms of the way in which their territory is to be governed. The Waitangi tribunal had a significant role to play in clarifying the difference between the meanings. The meaning had been provided based on the purpose and objectives of the treaty by the tribunal (Xuefei, 2018).

7. The case is a great authority relating to the relationship between the Maori and the crown. The case marked the beginning of common law development of the treaty. The case helped Maori identity and development by propelling political and social change in the country. The case provided am explicit place to the treaty of Waitangi in the NZ jurisdiction and created general acceptance of state having the responsibility of funding Maori language and culture (Dubber & Tomlins, 2018).

8

(a) The High Court

(b) District Court

9. The dispute tribunal Act provides for dispute tribunals across NZ to resolve small disputes between citizens.  Through the dispute tribunal the NZ citizens are provided with an inexpensive and quick response which is private and informal in nature. These tribunals are not the same as the formal courts. They help in resolving a wide range of disputes without the need of lawyers and judges. Thus the process of resolving small disputes is very quick and cheap unlike regular court proceedings. A referee who is trained and selected very carefully is appointed to hear such disputes. Any rulings made by such referees are binding and can be enforced in courts if necessary. The claim has to be less than $15000 or in case it is agreed by both parties up to $20000 for being eligible to be tried in such tribunal. A person is not entitled to use a lawyer in a dispute tribunal (Xuefei,2018).

Section 2

1

 Issue

The legal issue with respect to Sharon and Imran is that whether Sharon has been negligent and is liable to compensate Imran for the injury incurred to him and his property

The relevant rule

In NZ the provisions of the tort of negligence are governed by the principles laid down via common law. At common law there are three elements which are needed to be satisfied for making the injured party eligible to make claim compensation. These elements are the duty of care, the breach of duty and causation of injury.

According to the rules provided by Donoghue v Stevenson 1932 AC 562 the neighbour principles is used for the purpose of identifying a duty of care. The neighbour principle states that if a neighbour can reasonably and foreseeably get injured due to the actions of another neighbour the latter would have a duty of care to the former. The test of proximity as provided by the case of Caparo Industries Plc v Dickman [1990] 2 AC 605 is also used for the purpose of determining the duty of care. This means that the person would have a duty of care in case the injured person is in close proximity and injury can be reasonably foreseen by them. This test is also known as the caparo test.

The next element which needs establishment is regarding the breach of the duty of care. A person who has a duty of care has the obligation of act in a careful manner so as to prevent the injury. In case the person has not acted carefully the duty is breached. Whether or not the actions of the person were reasonable in the situation where the injury was caused is analyzed via the objective test. The test had been deployed in the case of Aktas v Westpac Banking Corporation Limited [2010] HCA 25. The judge placed a reasonable person in the situation and determined by considering factors such as probability and severity of the injury whether such person’s actions would be more careful or not compared to the actual person in the scenario. The person will be guilty of breach if additional care would have been taken by the reasonable person in the situation.

The final element which the courts would discuss to address an issue related to negligence is that of causation. Discussion of this element is only worth when the previous two elements have been proved. The test used to address this element is mostly the “but for” test. The but for test had been first initiated via Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428. The judges stated that negligence will be provided only when the damages caused are because of the breach of the duty of care and not otherwise. In other words the injury would not have been caused “but for” the breach of the duty of care.

The damages which are to paid in case of negligence are calculated based on the amount of injury or loss which has been caused to the plaintiff. However the loss which has been cause has to be reasonably foreseeable. A claim in relation to unlimited chain of events cannot be made as per The Wagon Mound no 1 [1961] AC 388

Application

It has been provided in the situation that Sharon was in a hurry for a presentation and thus did not clean the wind screen of her car which was dirty. As a result she was not able to have a proper view of the road and at the intersection she collided with Imran who was on a pushbike injuring him, the bike and a laptop he was carrying in his back pack. Whether Sharon is negligent or not is to be identified by analyzing the elements of negligence discussed above through the various legal tests.

According to the neighbour principle and the proximity test it can be stated that Sharon had a duty of care towards Imran. This is because as a driver she can foresee that anyone on the road can be injured due to her negligence. In addition Imran was in close proximity to her. Thus she had a duty of care. As per the objective test, given the probability and severity of the injury from a road accident a reasonable person in position of Sharon would have cleaned the car windshield properly before hitting the road. Thus shorn has breached the duty of care. The application of the But for test would provided that in case Sharon has cleaned the windshield the accident would not have happened and thus causation is identified.  It is also reasonable to foresee that in case of negligence a person can bet personally injured along with his vehicles and belongings. Thus Imran can legally make the claim for the bike, 3 weeks lay off and the computed.

Conclusion:

Sharon has been negligent and is liable to pay damages

2

Issue

Whether the company would be vicariously liable for the actions of Sharon

Rule

The rule in relation to vicarious liability states that the employer is to be made liable for the negligence of the employee which has been committed during the course of employment. The actions would be binding in the employer. In the case of Maga v Archbishop of Birmingham [2010] 1 WLR 1441 it had been stated by the court that in order to prove vicarious liability the following needs to be established

1. The act was within the time and space provided through employment
2. The  employee was motivated to serve the employer
3. The act has been such which the employer was hired to perform

Application

In the given situation it can be stated that the company would  be liable for the actions of Sharon with respect to vicarious liability. This is because the act was within the time and car provided by the employer and she was motivated to serve the employer by giving the presentation, it was an act which the company had hired her to do as they had provided her with the car. Thus in this situation Imran can make the claim from the company

Conclusion:

The company would be vicariously liable for the actions of Sharon.

References:

Aktas v Westpac Banking Corporation Limited [2010] HCA 25.

Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428.

Black, D.J., 2018. The boundaries of legal sociology. In The Law and Society Canon (pp. 3-17). Routledge.

Caparo Industries Plc v Dickman [1990] 2 AC 605

Donoghue v Stevenson 1932 AC 562

Dubber, M.D. & Tomlins, C. eds., 2018. The Oxford Handbook of Legal History. Oxford University Press.

Human Rights Act 1993

Maga v Archbishop of Birmingham [2010] 1 WLR 1441

Privacy Act 1993

The Wagon Mound no 1 [1961] AC 388

Xuefei, W., 2018. Treaty of Waitangi. Advances in Social Sciences Research Journal, 5(2).