Detailed Analysis and Report: Principles of Business Governance

This report examines key principles of business governance through a series of case studies. Part A addresses the issue of right of way, specifically focusing on easement by prescription, applying relevant legal principles to determine whether a restriction on park access is permissible. Part B delves into contract law, exclusion clauses, and the tort of negligence. The analysis considers the validity of exclusion clauses, the potential liability for negligence in handling customer belongings, and the implications of a breach of contract when there are no explicit limitations. The report provides a detailed analysis of each scenario, supported by legal precedents and case law, offering a comprehensive overview of the practical application of business governance principles.

RUNNING HEAD: PRINCIPLE OF BUSINESS GOVERNANCE
Principle of Business Governance

PRINCIPLE OF BUSINESS GOVERNANCE
Contents
Part A.........................................................................................................................................1
Issue........................................................................................................................................1
Rule........................................................................................................................................1
Application.............................................................................................................................2
Conclusion..............................................................................................................................2
Part B..........................................................................................................................................3
B (A).......................................................................................................................................3
B (B).......................................................................................................................................4
B ( C)......................................................................................................................................5
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PRINCIPLE OF BUSINESS GOVERNANCE
Part A
Issue
The main issue in the given situation is whether Ranger is entitled to restrict Mary’s entry to
the park.
Rule
A right of way or easement right is agreement amid parties to grant an individual or a
company the right to use a certain property of landowner for a specific purpose (Bradbrook &
MacCallum, 2011). Whereas right of way provides privileges, it also partly restricts the use
of that portion of the property impacted by the easement or right of way by a landowner
(Bradbrook & MacCallum, 2011). Easements can be obtained by a technique called
"prescription" through long-term use. The fundamental principle of prescription is that if a
landowner has practiced a right over his neighbors ' property, i.e. not by force, nor license,"
and for a long time, the neighbor has efficiently relinquished his right to object to that right
and has granted that right to be rendered legal. Right of way is used for 20 years based on this
one can claim to register a right of way (Australia, 2019).
In order to establish a case under right of way by prescription one must show its elements,
these are; firstly, the landowner must prove that he has practiced the right without disruption
for at least 20 years (Easement, 2019). The landowner does not have to determine regular use,
but he must guarantee that any usage gaps are comparatively short. Secondly, it must be
shown by the landowner that such right was used in the same manner for entire period of 20
years. Thirdly, the landowner shall not have practiced the right by force or stealth or with the
neighbor's approval.
In the case of Gore v Naheed & Ahmed (2017) EWCA Civ 369, it was considered whether
the owner of residential property who had the right of way which was granted to him in 1921,
had a right to of way to access a garage that was subsequently acquired by adverse possession
and which was originally a part of driveway to which the right of was granted. It was held by
the court that the right of way extended to the right of way to garage.
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PRINCIPLE OF BUSINESS GOVERNANCE
Application
In the given situation, Mary has been cycling in the park every weekend for the past 20 years,
which creates a right of public way by prescription. By cycling for 20 years on the same way
gives Mary a right of way as per the right of way by prescription.
To establish her right under right of way by prescription Mary can show that she has
practiced the right without disruption for last 20 years. As per the another element of
easement Mary used to ride cycle every weekend thus Mary can show in order to establish
her right that although she used to ride once in a weekend but it was a continuous process
since last 20 years. As per the third element Mary did not have had practiced the right by
force or stealth. Thus, all the elements are present of easement, which give rise to possible
case of violation of right of way.
As per the case of Gore v Naheed & Ahmed, the continuous use of land for more than 20
years gives the right of way to the person. Similarly, Mary was riding his bicycle in park for
more than 20 years, which gave her the right of way by prescription.
Conclusion
Thus, it can be said that Mary has a right to way which cannot be restricted by Ranger.
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PRINCIPLE OF BUSINESS GOVERNANCE
Part B
B (A)
Issue
The main issue in the present situation is whether Yvonne will be successful in claiming the
loss of $3000.
Rule
An exclusion clause is an expression in an agreement aimed at excluding or limiting one of
its parties 'liability, for instance it may state that a party is not responsible if the contract is
breached or, alternatively, seeks to limit the range of available remedies or the time in which
they can be claimed (Lawson, 2011). In order to establish a case under exclusion clause one
must prove that before agreement such clause or representation came into the knowledge of
other party (Andrews, 2011). In the case of Thompson v London, Midland and Scotland
Railway Co (1930) 1 KB 41, the court upheld the exclusion clause even the plaintiff was
illiterate and could not read.
Application
In the given scenario, Yvonne paid for ticket without reading the ticket. It was written on the
face of the ticket that “see back of ticket for conditions”. It was a proper representation on the
part of the Rail cloakroom to limit their liability. As applying, the abovementioned case
Yvonne did not see the back and left her belongings. The rail cloakroom already restricted
their liability up to $50 in case of loss.
Conclusion
Thus, it can be said that Yvonne cannot claim for $ 3000, as she did not read the instructions.
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PRINCIPLE OF BUSINESS GOVERNANCE
B (B)
Issue
The main issue in the given scenario is whether Western Railway will be liable if they
allowed third party to take the bag of Yvonne’s without showing ticket.
Rule
Where one party fails to keep his promise or does not perform then it is termed as breach of
contract (Carter, 2012). Whereas if one party acted negligently and due to which caused harm
to another then it is termed as negligence (Stickey, 2016). In order to establish a case under
tort of negligence two elements are required to prove that is duty of care and breach of such
duty (Luntz, et al., 2017).
Application
In the given scenario if the bag was claimed by third party without even showing ticket by the
rail cloakroom then it will be treated as negligence on the part of Railway. As Yvonne
purchased ticket to keep her belongings, thus, the railway owned duty of care towards her.
Rail cloakroom breached their duty by giving her bag to third party. A possible attempt to file
a case can be made by Yvonne under negligence for loss of her belongings
Conclusion
It can be concluded that Rail cloakroom shall be held under the tort of negligence.
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PRINCIPLE OF BUSINESS GOVERNANCE
B ( C)
Issue
The main issue in the given case study is whether Yvonne can claim for loss if there had been
no sign above the counter or on the face of the ticket.
Rule
The promises that one individual offers to another are the conditions of an agreement, but not
every depiction will always count as a term before an acceptance (Carter J. W., 2011). The
fundamental rule of construction is that a depiction is a term if, from a prudent person's point
of view, it looked like it was intended. A valid agreement is created where offer is accepted
and followed with consideration (Marie, Robertson, & Duke, 2016). If any party to the
contract does not perform their promise then it is treated as breach of contract (Lawson,
Damages for Breach of Contract, 2016).
Application
In the given scenario, Yvonne purchased a ticket for $ 5. A valid contract was made between
the rail cloakroom and Yvonne. Once Yvonne accepted to take ticket and paid for the same.
Thus, all the elements of contract are present. There were no instructions on the ticket, which
limit the liability of railway cloakroom. Therefore, if the bag of Yvonne was stolen which
contained items valued $ 3000 the rail cloakroom shall be liable for the damages.
Conclusion
It can be concluded that railway cloakroom shall be held liable to pay Yvonne for her loss as
there were no exclusion clause, which limits the liability of rail cloakroom.
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Bibliography
Easement. (2019). Retrieved 9 4, 2019, from Land services SA.
Easements in Australia: How are they created? And other questions about easements. (2019).
Retrieved 9 4, 2019, from FindLaw Australia:
https://www.findlaw.com.au/articles/5129/easements-in-australia-how-are-they-
created-and-ot.aspx
Andrews, N. (2011). Contract Law. Cambridge: Cambridge University Press.
Bradbrook, A. J., & MacCallum, S. V. (2011). Bradbrook and Neave's Easements and
Restrictive Covenants. New York: LexisNexis Butterworths.
Bradbrook, A., & MacCallum, S. (2011). Bradbrook and Neave's easements and restrictive
covenants. New York: LexisNexis Butterworths.
Carter, J. W. (2011). Carter's Guide to Australian Contract Law. New York: LexisNexis
Butterworths.
Carter, J. W. (2012). Carter's Breach of Contract. London: Hart Publishing.
Lawson, R. G. (2011). Exclusion Clauses and Unfair Contract Terms. London: Sweet&
Maxwell.
Lawson, R. G. (2016). Damages for Breach of Contract. New York: Thomson Reuters.
Luntz, H., Hambly, D., Burns, K., Dietrcih, J., Foster, N., Grant, G., et al. (2017). Torts:
Cases and commentary. New York: LexisNexis Butterworths.
Marie, J., Robertson, A., & Duke, A. (2016). Principles of Contract Law. New York:
Thomson Reuters.
Stickey, A. P. (2016). Australian Tort Law. New York: LexisNexis Butterworths.
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