Principles of Business Governance: A Comprehensive Legal Report

This report provides a comprehensive analysis of business governance principles, addressing legal issues within various scenarios. Part A examines the concept of easements and right of way, specifically whether restrictions can be imposed on public access to a park, analyzing the legal basis for Mary's right to cycle in the park for 20 years. Part B delves into contract law, exclusion clauses, and negligence, evaluating Yvonne's claims for losses related to a railway cloakroom. The analysis covers the validity of exclusion clauses, the railway's liability for negligence in handling Yvonne's bag, and the consequences when no exclusion provisions are present. The report uses legal precedents and case studies to illustrate the application of these principles.

RUNNING HEAD: PRINCIPLES OF BUSINESS GOVERNANCE
Principles of Business Governance

PRINCIPLES OF BUSINESS GOVERNANCE
Part A
Issue
The primary question in this scenario is whether Ranger has the right to limit Mary's access
to the park.
Rule
With an easement, one person is able to use the land of another person without actually
owning the land. In order to enjoy and make use of a piece of land in a satisfactory manner, it
is often necessary to make use of the adjacent or nearby land of another person (Bradbrook
2011). The ability to use the land of another person in connection with a piece of land is often
so essential that it must be given the permanent status of a legal right. This permanent right is
also termed as an easement in English based law. Easements can be acquired by means of a
method called "prescription" through long-term use. The basic concept of prescription is that
if a landowner has exercised a right over the estate of his neighbours, i.e. not by force or
permit, and for a long time, the landlord has effectively surrendered his right to object to that
right and has given that right to be made legal (Esmaeili and Grigg 2016).
In order to file a suit under right of way by prescription, one must demonstrate its
components, those are; first, the landowner must demonstrate that he has exercised the right
without interference for at least 20 years. The landowner is not required to determine periodic
use, but must ensure that any breaks in use are relatively brief. Secondly, it must be shown to
the landowner that this privilege has been applied in the same way for a span of 20 years.
Third, the landowner shall not exercise the right by force or stealth or with the consent of the
neighbour (bradbrook and MacCallum 2011).
In the case of Re Ellenborough Park (1955) EWCA Civ 4, the court held that an easement to
be a valid easement in law using a communal garden. There is no necessity for all homes to
be immediately next to the garden to profit from it.
Application
In the specified scenario, for the previous 20 years, Mary has been cycling in the park every
weekend, creating by prescription a right of public way. By cycling in the same way for 20
years, Mary provides a right of way as prescribed by the right of way.
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PRINCIPLES OF BUSINESS GOVERNANCE
Mary can demonstrate that she has practiced the right without interruption for the last 20
years to create her right under the right of way by prescription. According to the other
component of easement Mary used to cycle every weekend so, Mary can demonstrate in
order to establish her right that although she used to ride once a weekend but since last 20
years it has been a constant process. Whereas according to third element the claimant did not
have had practiced the right by force or stealth. Since all the elements of the easements are
present, it gives rise to possible case of infringement of right of way.
As applying the case of Re Ellenborough Park, public garden that is used by public for years
gives right of way to the public. For more than 20 years, Mary was riding bicycle in park,
which gave her the right of way.
Conclusion
It can therefore be said that Mary has a right of way and Roger cannot impose restrictions on
such use.
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PRINCIPLES OF BUSINESS GOVERNANCE
Part B
B (A)
Issue
The primary question in the current scenario is whether Yvonne will succeed in claiming a
$3,000 loss.
Rule
An exclusion clause is an expression of an agreement aimed at excluding or limiting the
liability of one of its parties, for example, it may state that a party is not liable if the contract
is breached or, alternatively, seeks to limit the range of remedies available or the time in
which they can be claimed (Schwenzer, Hachem and Kee 2012). In order to show a case
under the exclusion clause, it must be proved that such provision or representation was
known to the other party before contract (Poole 2016). As in the case of Thompson v London
Midland and Scotland Railway Co (1930) 1 KB 41, the plaintiff in this case was illiterate still
the court upheld the exclusion clause.
Application
As per the given case study, Yvonne paid for the ticket without reading the ticket. It was
apparent on the face of the ticket see the terms and conditions behind the ticket. It was
adequate depiction on the part of Rail cloakroom to restrict their liability. As per the
Thompson v London Midland and Scotland Railway Co, it was clearly mentioned at the back
of the ticket that in case of loss the liability of cloakroom would be upto $ 50, still Yvonne
left her bag as well as did not read the terms and conditions.
Conclusion
From the above it can be concluded that Yvonne would not be entitled to claim for $3000
because she did read the conditions mentioned in the ticket that limits the liability of rail
cloakroom.
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PRINCIPLES OF BUSINESS GOVERNANCE
B (B)
Issue
The main issue in the given case study is whether the railway will be responsible in case they
allowed third party to take the Yvonne’s bag without showing ticket.
Rule
Where one party fails to fulfil its promise or fails to fulfil it is called a contract breach (Ellis
2012). Whereas, if one party has acted carelessly and caused harm to another, it is called
negligence (Lunney 2017). If the aggrieved party wants to file a suit against the wrongdoer
then he must show two elements that is that wrongdoer owned duty of care and there was a
breach of such duty (Stwart and Stuhmcke 2017).
Application
As in the given situation, it shall be treated as negligence if the railway cloakroom allows
third party to take Yvonne’s bag without her consent, knowledge and most importantly
without showing ticket. As Yvonne paid for the ticket, the first element of negligence is
established that the railway cloakroom owned duty of care towards her. Whereas if the
cloakroom allows third party to take her bag without showing the ticket, it will be treated as
breach of such duty. Thus, Yvonne can file suit against the railway cloakroom.
Conclusion
Thus from the above it can be concluded that tort of negligence has been committed by the
rail cloakroom.
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PRINCIPLES OF BUSINESS GOVERNANCE
B (C)
Issue
The main issue in the current scenario is, if there was no indication above the counter or on
the ticket panel still whether Yvonne can claim for loss.
Rule
The promises that one person provides to another are the terms of an agreement, but not
every representation will always count as a term before it is accepted (Radan , Gooley and
Vickovich 2017). The basic principle of construction is that a portrayal is a term if it feels
like it was designed from the point of perspective of a prudent person (Carter 2011). When an
offer is accepted and followed by consideration then only it is termed as valid agreement
(Gooley, Radan and Vickovich 2013). A breach of contract occurs when either party to
contract fails to perform their part of promise (Swain and Campbell 2019).
Application
Yvonne bought a ticket for $5 as per the given situation. A valid agreement has been
concluded between Yvonne and the rail cloakroom. Once Yvonne has accepted to buy ticket
and paid for the same. Therefore, all the contract components are present. There were no fare
guidelines limiting the railway cloakroom's liability. Thus if Yvonne’s bag containing objects
valued for $3000 has been stolen, the train cloakroom will be responsible for the damages.
Conclusion
From the above it can be concluded that the rail cloakroom is responsible for Yvonne’s loss
as there was no exclusion provision limiting the rail cloakroom’s responsibility.
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Bibliography
Bradbrook, A J. Bradbrook and Neave's Easements and Restrictive Covenants . New York:
LexisNexis Butterworths, 2011.
bradbrook, Adrian John, and Susan V MacCallum. Bradbrook and Neave's Easements and
Restrictive Covenants. New York: LexisNexis Butterworths, 2011.
Carter, John W. Carter's Guide to Australian Contract Law. New York: Lexis Nexis
Butterworths, 2011.
Ellis, Elizabeth. Principles and Practice of Australian Law. New York: Thomson Reuturs,
2012.
Esmaeili, Hossein, and Brendan Grigg. The Boundaries of Australian Property Law.
Cambridge: Cambridge University Press, 2016.
Gooley, John V, Peter Radan, and Ilija Vickovich. Principles of Australian Contract Law.
New York: Lexis Nexis Butterworths, 2013.
Lunney, Mark. A History of Australian Tort Law 1901-1945. Cambridge: Cambridge
University Press, 2017.
Poole, Jill. Casebook on Contract Law. Oxford: Oxford University Press, 2016.
Radan , Peter, John V Gooley, and Ilija Vickovich. Principles of Australian Contract Law.
New York: Lexis Nexis Butterworths, 2017.
Schwenzer, Ingeborg, Pascal Hachem, and Christopher Kee. Global Sales and Contract Law.
Oxford: OUP Oxford, 2012.
Stwart, Pamela, and Anita Stuhmcke. Australian Principles of Tort Law. New York:
Federation Press, 2017.
Swain, Warren, and David Campbell. Reimagining Contract Law Pedagogy: A New Agenda
for Teaching. Abingdon-on-thames: Routledge, 2019.
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