ILAC HYPOTHETICAL QUESTION

Student’s Name
Tutor’s Name
Course
Date
Australian Consumer Law and Law of Negligence
Part A
ISSUE:
In the case at hand, the problems that ought to be addressed are if Avant Developments violated any provisions stipulated in the Australian Consumer Law (ACL) 2010 concerning Amaroo’s leasing of the kiosk and the remedies available for Amaroo Yunupingu under the ACL. Amaroo had insufficient knowledge of the English language as well as business and financial matters, and this was so apparent to Steve Jones, Avant Developments’ representative, but still, he asked him to sign a 30-page lease within twenty-four hours without ascertaining that Amaroo had comprehended the terms. Within the lease, there is a term that states that Amaroo will be charged rent at 30 % higher than other occupants and Steve failed to notify him of this vital information. More so, it is planned that after two months of leasing, the Food Court will be closed down for a six month period for refurbishment purposes; all tenants are advised of that expect Amaroo. As such, Amaroo entered into a contract with Avant Developments without fully understanding the terms of the contract. Unfortunately, before commencing business, an accident at the railway station forces Amaroo to be hospitalized for approximately six months, and because of this, he is unable to start the business at the kiosk that he had leased from Avant Developments.
LAW:
Australian Consumer Law (ACL) 2010.
Section 18 of the 2010 ACL can be used by parties that have been prompted to enter into business agreement due to perversion made during the negotiation stage leading up to the contract.

Section 236 of the ACL states that actions for damages can be taken if a business practice infringed a provision stipulated in the second or third chapter of the Australian Consumer Law. The plaintiff may be compensated the same amount for loss or damage caused by the actions taken by the defendant.
Cases:
O’Brien v Smolnogov: the court established that commercial transactions that have business character could be categorized as “commerce or trade.”
McWilliams Wines Pty Ltd v McDonalds Ltd: this case took place on 16th December 1980. It explored deceptive and misleading conduct in business practices. McWilliams Wines Pty Ltd. used the trademark “Big Mac” to sell different type of products causing public deception (Howells and Weatherill 12).
Apand Pty Ltd v The Kettle Chip Co Pty Ltd: this case was predominantly about deceptive and misleading conduct in business practices. The Defendant used the names, symbols, and packaging that greatly resembled those used by the Plaintiff (who was a rival trader).
Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd: is a case about deceptive or misleading conduct in business. The Defendant failed to inform the Plaintiff about the actual limitations in the seating capacity of the restaurant that he was buying.
APPLICATION:
Section 18 of the 2010 Australian Consumer Law states, “a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.” Avant Developments, through its representative Steve Jones, has per taken “in trade or commerce” as it is leasing a kiosk to Amaroo. Amaroo was renting the place so that he could use it as a business premise rather than a place to live.
To resolve if the business practice conducted by Avant Developments is deceptive or misleading, an objective test can be applied (Howells and Weatherill 23). The business practice or conduct has to be fraudulent or deceptive, or likely to deceive or mislead. The Apand and McWilliams Wines cases blatantly established that plain slip-up is not sufficient to breach section 18 of the ACL. The Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd is similar to the case at present. In that case, silence or failure to disclose critical information by the defendant was perceived to be deceptive or misleading conduct. Similarly, Mr. Steve Jones was well aware that Mr. Amaroo had limited knowledge of the English language, but he did not take any measure to ensure that he understood the 30-page lease. More so, he was silent about the additional 30 % of rent that Mr. Amaroo would pay as well as the six-month renovation plans that would commence two months after leasing the premises. Those were critical information that Steve Jones should have disclosed to Amaroo when they met to make business agreements. As such, the business practice conducted by Steve Jones was deceptive or misleading.
Moreover, section 236 of the ACL states that actions for damages can be taken in case business conduct is contrary to the to the provisions outlined in chapter 2 of the ACL such as engaging in misleading or deceptive business practice. In this light, Amaroo can be able to get compensation for damages incurred as a result of the misconduct by Steve Jones.
CONCLUSION:
On the evenness of probabilities, the Federal Court is very likely to establish that Avant Developments, through Steve Jones, breached section 18 of the 2010 Australian Consumer Law. Even after knowing that the plaintiff had limited comprehension of the English language, Avant Developments failed to adequately disclose to Mr. Amaroo valuable information regarding the additional 30 % charge on rent as well as the six-month renovation plans that would commence two months immediately after leasing the premise. Disclosing such vital information to Amaroo during the negotiation stage was be paramount, and therefore remedies ought to be awarded to Mr. Amaroo as per section 236 of the 2010 ACL.
PART B
ISSUE:
In this section, the issue that needs to be addressed is if Darwin Rail is liable for the injuries incurred by Mr. Amaroo at the station’s slippery stairs and the loss of $30,000 as per the 2003 Civil Liability Act. Darwin Rail had recently undertaken renovations at Paradise Palm’s railway station and the paints applied along the edges of the stairs made them dangerously slippery, especially during a rainy day. Sadly, no warning signs were placed on the stairs to notify the users so that they would be more cautious. Failure to do this caused Amaroo to slip and fall causing him to fracture his ankle and intensify pre-existing lower back pain, which considerably limited his movement. Notably, while he was using the stairs, he was holding his cell phone in one hand and a bag in the other. Due to this grave incident, Amaroo was hospitalized for six months, and during this time he could not carry on with his business venture. Unfortunately, the turn of events has made Amaroo develop severe depression and anxiety problems. In efforts to alleviate the depression, he has developed a gambling addiction, and recently he loosed $30,000 during gambling.
LAW:
Civil Liability Act (2003).
Section 5B of the Civil Liability Act (2003) states that to determine a violation, the complainant is obliged to prove beyond reasonable doubt that the risk was predictable and significant. More so, the plaintiff has to prove that the respondent failed to exercise sufficient degree of skill and care that would help in avoiding anticipatable and considerable risk.
Section 5D (1)(b); enables the court of law to take into consideration standard law position with the account of remoteness.
Section 5E; states that the obligation of providing evidence for causativeness solely rests within the plaintiff.
Cases:
Great Lakes Shire Council v Ryan; in this case, the Federal Court established that the primary salient features that would be utilized in determining the existence of the duty of care are; the Accused’s control and the Complainant’s vulnerability (Howells and Weatherill 61).
Shirt v Wyong Shire Council; the Court of law established that a predictable risk is one which is not fanciful or far-fetched.
Romeo and Australian Safeway cases; in this cases, the court determined that statutory authority is obliged to apply reasonable care to avert the conceivable risk of accident or injury to people arising out of situations of premises or structure that the statutory figure owns. This is known as the principle of reasonable foreseeability (Howells and Weatherill 13).
Stone v Bolton; the court of law held that in an event where the probability of danger is very small that a logical individual, regarding the matter from a safety’s point of view, will think to avert the danger, then the accused will not be accountable (Howells and Weatherill 25).
Speirs v Caledonian Collieries Ltd; during this case, the high court established that in the event where the risk of accident or injury is conceived as severe and relatively easy to evade, then the accused is more probable to be declared neglectful at the court of law.
APPLICATION:
As stipulated in Section 5B and Section 5E of the Civil Liability Act (2003), it is very critical for the Plaintiff to prove that the risk was conceivable and it has caused him the $30,000 loss alongside the physical injuries. Arguably, the risk of slipping and falling while using the stairs, especially on a rainy day, is usually very foreseeable and significant. Moreover, Amaroo’s incident is not far-fetched, and because the stairs were freshly painted, the risk of a user falling was not insignificant. More so, while considering the Bolton v Stone case, the probability that a person would sustain an injury while using the stairs, after they are recently painted, on a rainy day, and with no warning signs was not far-fetched. In applying the principle of reasonable foreseeability to the present case, it is logical enough to presume that Darwin Rails was well aware that the paint used along the edges of the stairs would cause the staircase to be dangerously slippery but no effort was taken to caution the users.
More so, in light of the decision made during the Ryan v Great Lakes Shire Council, two important inferences can be made. Firstly, Darwin Rail exercised the high degree of control over the probability of injury that eventuated since they were in charge of the renovations done at Paradise Palm Railway Station. Secondly, there was the high level of vulnerability on Amaroo’s side as he was fully relying on the proper exercise of care as well as the skill by Darwin Rail. On the other hand, in light of section 5D (1)(b) of the Civil Liability Act 2003, fracture at the ankle and aggravation of lower-back pain are reasonably conceivable from slipping and falling on a staircase. However, the gambling problem currently facing Amaroo is not reasonably foreseeable from the incident that happened at Paradise Palm Railway Station.
CONCLUSION
From the facts outlined, Amaroo is more likely to prove in a Federal Court that Darwin Rail fell beneath the anticipated standard of care. The Defendant failed to recognize the risk of injury and take even minimal measures to exercise precaution. As such, the court would probably hold that Darwin Rail violated their duty of care. As enumerated in the issues section, the risk of injury while using the stairs was very high in light of the recent painting and the rains. Nonetheless, the risk could have been incredibly avoided by the management covering the stairs till the paint dries out which would not be costly. Moreover, the risk could have been significantly minimized by erecting warning signs, which the defendant failed to do. Consequently, because of Darwin Rail’s negligent acts of not covering wet paint or installing warning signs, the defendant sustained injuries and therefore Darwin Rail is liable to settle the hospital bills incurred by the incident at Paradise Palm. However, developing gambling addiction as a result of the accident is not foreseeable, and therefore the court might not ask the Defendant to pay the $30,000 lost by the Plaintiff during gambling.
Work Cited
Howells, Geraint, and Stephen Weatherill. Consumer protection law. Routledge, 2017.