Business Law Assignment: NZ Constitution and Negligence

This business law assignment addresses key aspects of the New Zealand legal system, including the constitution, the Treaty of Waitangi, and principles of negligence and vicarious liability. Section 1 explores the functions of law, sources of the constitution, the separation of powers, parliamentary sovereignty, and the Mixed Member Proportional system. It also examines the interpretation of "sovereignty" and "kawanatanga" in the Treaty of Waitangi and the significance of the NZ Maori Council v Attorney General case. Section 2 delves into a negligence scenario involving Sharon and Imran, analyzing duty of care, breach of duty, and causation, along with the company's potential vicarious liability for Sharon's actions. The assignment applies relevant legal principles and case law to provide comprehensive solutions to the legal issues presented.

Running Head: BUSINESS LAW
BUSINESS LAW
Name of the Student:
Name of the University:
Author Note

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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
i. The treaty of Waitangi
ii. Common Law
iii. International conventions
iv. 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

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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
i. 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.
ii. 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.
iii. 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

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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

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(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).

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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

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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

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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

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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.

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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).