Subject Code & Title: 200008 TORTS Law
Weight: 45%
Collaboration: Individual
Length: 2,500 words (not to be exceeded)
Curriculum Mode: Essay (Problem based question and answer)
Format: The second written assignment will be in the form of a hypothetical fact scenario(s) which gives rise to legal issues about which students will need to provide advice.
Curriculum Mode: Essay (Problem based question and answer)
200008 TORTS Law Assessment 3 – Western Sydney University Australia.
Assignments should be undertaken individually without discussion with or help from anyone else. They are designed to measure and reinforce your learning. Academic misconduct will be treated seriously and can be an impediment/bar to being admitted as a legal professional.
Students should use headings and sub-headings structure your assignment in a logical way write clearly and concisely, and use footnote references to cite authority.
Use of AGLC is required for this assignment your referencing style should show attention to detail and be clear and uniform.
The word limit does not include short headings/sub-headings or footnotes. Footnotes should be limited to primary (cases/statutes) and secondary (articles, books etc) sources.Footnotes should not include discussion, and such discussion will not be read.
NB. A long sentence or paragraph is not a heading. E.g., Headings (Using AGLC style)
I INTRODUCTION = a heading
II MATHEW V MORRIS = a heading
A Preliminary Matters = a sub-heading
B Duty of Care = a sub-heading
Did xxx get hit by a car while going shopping and this gives rise to a negligence claim? Not a heading – this is a full sentence (while you may ask questions as part of your discussion they are not headings).
Do not use ‘ISSUE’ ‘RULE’ ‘ANALYSIS’ as headings. Complex problem questions are best addressed using headings that are indicative of for example the parties cause of action elements/sub-elements/issues, and conclusion. IRAC is a process of legal analysis that you do over and over again for each issue/sub-issue (i.e. you identify the issue you identify the relevant legal rule(s); you discuss the rule(s) applying and analysing them in relation to the facts; you may draw analogies to cases where relevant (not a mini-case summary) you draw a mini-conclusion; you move to the next issue and do the same again,and again. It may also not be this ‘neat’ for example a paragraph might have IRRAAC; or IRARAC; etc.)
Consider the examples drawn from the last assignment that illustrate this point:
E.g. 1 Margarita will claim that Charlotte is liable for assault. Assault occurs when someone intentionally creates apprehension of imminent harmful or offensive contact in another.1 There must be a direct act or statement by Charlotte intended to cause Margarita to apprehend imminent contact with her person.2 Margarita will argue that Charlotte calling her on the phone and declaring she was going to knock some sense into Margarita was a direct statement.
The onus of proof will then shift to Charlotte to disprove intent. Charlotte will not likely be able to disprove her intention to create the apprehension of imminent contact because….However, she may argue that as the words contained a conditional threat… …. In Tuber ville v Savage…….She will also argue in her defence….…. In light of these arguments it is likely/unlikely that this action will …
E.g. 2 In Munro v Southern Dairies the court found that substantial interference emerged from the horse noises resulting in the loss of a ‘single night’s sleep’.3 Here Charlotte will argue that the situation is more severe as she is constantly losing sleep due to the loud music Margarita is playing over the baby crying. Charlotte will argue that this would satisfy the requirement that the intangible interference be substantial. However Margarita will argue that the facts of the case should be differentiated from Munro as the baby is crying and music being played in the middle of the day…
There is no requirement for a cover sheet.
There is no requirement to have a reference list or bibliography at the end of the assignment.
1 Rixon v Star City Pty Ltd (2001) 53 NSWLR.
2 White v South Australia [2010] SASC 95; Hutchins v Maughan [1947] VLR 131.
3 Munro v Southern Dairies Ltd [1955] VLR 332.
The following facts are fictitious. They are written to elicit an answer that assesses your learning understanding and ability to apply the law you have studied in Torts this year. Take time to read the facts carefully.
PROBLEM SCENARIO:
Tabbot House is one of Sydney’s few 19th-century mansions still surrounded by its original gardens and wooded grounds. In the early 20th century, it became Australia’s first official house museum. It has ever since enticed visitors to its lush and secluded grounds. Tabbot Pty Ltd charges people a $10 entry fee to enter the grounds where they can enjoy walking in the gardens and wooded grounds touring the house museum, and dining in the restaurant (which is rented out by Andre Bella Rosa, a talented Italian chef).
200008 TORTS Law Assessment 3 – Western Sydney University Australia.
On 27th October 2020, the weather was warming up, and it was a particularly busy day at Tabbot House. The two tour guides on duty – Dalia and Derek – were having a busy day. They lamented that Tabbot Pty Ltd had cut the number of tour guides from four (4) to two (2) and instead of taking groups in pairs they now had to do it on their own. Dalia and Derek just couldn’t keep up. Dalia told Derek she had just finished her law exams, and was hoping to maintain her High Distinction average, but was worried that her grades might be slipping with all the work she had been doing. The groups were larger than they should be, it was hard to keep an eye on everyone. With all the study as well as work Dalia was tired. She reached into her pocket and took out a bottle of pills. What’s that? asked Derek. Don’t worry. It’s prescription medication, my doctor gave it to me so that I can stay awake. Although the label said take one pill, Dalia popped two pills into her mouth and swallowed them, saying “An extra one to keep me going!”. Fifteen minutes later Dalia was ‘buzzing’ speeding through her tours speaking rapidly, and feeling very awake. “Just the pick-me-up I needed” she said to herself.
Mean while the sole Safety and Security Guard, Penelope, was also struggling due to staff cuts. While Tabbot Pty Ltd used to employ two such guards Penelope was now working alone. She was at a loss as to how to supervise people who were wandering the grounds as well as those in the house. Although it was her responsibility to ensure several of the older rooms upstairs of the house were locked, as they posed a hazard to visitors, she had forgotten to do so as she had been called out into the grounds to help the gardener put up a pergola.
200008 TORTS Law Assessment 3 – Western Sydney University Australia.
Inside the house Dalia started her fifth tour for the morning. Her tour group had fifteen people including a family of three Rosa and her twin 10-year-old children, Lauren and Noel. Dalia told the group before they headed off to always stay with the group and to take care as the house is very old. Lauren and Noel were busy messing about and Rosa was telling them to be quiet so wasn’t paying attention. Lauren and Noel were not listening either, they wanted to see who could get to the top of the stairs first and set off running and laughing. Dalia yelled ‘Stop, you can’t go up there!’ but it was too late, the children had reached the top of the stairs and entered one of the unlocked rooms. It was only a few seconds after wards that a horrible shriek was heard by the group. Dalia who had rushed up the stairs after Lauren and Noel had entered the room to see Noel was positioned half in and half out of the window and was holding onto Lauren’s hair who was dangling in the air. Lauren had climbed out of the window onto a small rotten balcony that had collapsed as soon as she set foot on it. ‘Hold on!’, Dalia shouted, but Noel could not keep hold of Lauren’s hair. As it slipped through Noel’s small hand, Lauren fell to the ground below, hitting her head. Dalia caught hold of Noel’s foot, preventing him from falling too.
200008 TORTS Law Assessment 3 – Western Sydney University Australia.
The mother of the children Rosa reached the room just after Lauren fell, hearing Noel sobbing ‘Farrah’s fallen out of the window”. Rosa let out what could only be described as a ‘blood curdling’ scream. The remainder of the tour group including a Ms. xxx, stood at the bottom of the stairs. On hearing Rosa’s scream xxx, who was of nervous disposition fainted.
Penelope the Safety and Security Guard heard the screams and rushed toward the house. As she did so, she saw Lauren was lying beneath the collapsed balcony on the ground and ran over to her. However, on seeing the child close up, Penelope panicked about what to do next. Despite her training, instead of calling an ambulance immediately she ran away from Lauren into the house to get a blanket and pillows. She then stopped to use the bathroom, before returning to Lauren, covering Lauren with the blanket and placing Lauren’s head on the pillow. She then called an ambulance. On arrival the ambulance officers rushed Lauren to hospital. It was discovered at the hospital that Lauren had a broken neck and spine. The medical evidence obtained indicates that moving her head to place it on the pillow made worse the injury to her neck. Lauren will remain a quadriplegic and has suffered brain damage. The delay in treatment is found to have made things worse. Lauren will require 24-hour care for the rest of her life.
Dalia is guilt ridden about the incident, and subsequently is diagnosed with clinical depression. Her life unravels. She is unable to work and drops out of law school, unable to focus on her studies. She begins drinking wine heavily damaging her liver. Her doctors have said she can expect a reduced life of at least 15 years if she does not get a liver transplant.
Rosa the mother is diagnosed with Post-Traumatic-Stress-Disorder (also a serious psychiatric illness). She struggles to look after Lauren and Noel to clean the house and to find joy in life. Her marriage subsequently breaks down. Unable to afford to pay for Lauren’s care requirements she does it herself getting Noel to help her with the cleaning of the house and other chores.
Mary Jones is unable to rid herself of regular nightmares in which she is wandering through an old house in which she hears the screams of Lauren and Rosa over and over again. She subsequently is also diagnosed as suffering anxiety and depression. She is unable to leave her house, and no longer enjoys visiting museums. She engages in regular weekly tele-health psychology sessions.
Following the incident crowds stopped coming to Tabbot House after multiple news stories recounted the event and pictures of a small, injured girl lying at the bottom of the house were circulated on the internet. With few customers over summer and those who came often leaving because the restaurant windows look out over where Lauren fell, Andre Bella Rosa could not generate enough money to keep the restaurant open. Consequently, he has not only lost his livelihood (his means of income), but also his home as he could not meet the mortgage repayments.
200008 TORTS Law Assessment 3 – Western Sydney University Australia.
Provide advice regarding all possible claims in negligence that may arise as a result of the above scenario. In your answer you should identify any relevant plaintiff(s) and defendant(s), identify all relevant legal issues, identify the applicable law, and engage in legal analysis based upon the facts and law. Include in your advice discussion of any relevant defences and damages. (DO NOT DISCUSS ANY OTHER CAUSES OF ACTION OTHER THAN NEGLIGENCE; APPLY ONLY THE LAW YOU HAVE STUDIED IN TORTS)