3003 Exam Student Sample Answer 1 for Discussion
N OTE THIS IS NOT A MODEL CORRECT ANSWER: IT IS AN ANSWER FOR US TO EVALUATE AND DISCUSS IN CLASS
Introduction
The plaintiffs in this action are Lincoln and Simon. The potential defendants are the Mandersons, VIP Authority (public authority), Mary Danger and Dodgy Security. Lincoln has a claim against the Mandersons for negligence (occupiers’ liability), VIP Authority (negligence), and a medical negligence action against Dr Mary Danger. Simon has a potential claim against his employer for negligence, and a no fault workers’ compensation claim. The CLA applies to Lincoln’s claims as the incident occurred after December 2 2002 (s 2 CLA), it is a civil claim for damages for harm (s 4 CLA) and all of the actions don’t relate to the workplace, dust or smoking (s 5 CLA). Simon’s claim will be dealt with under the WCRA. There are multiple tortfeasors in this case being the Mandersons, the VIP authority and Mary Danger (in relation to Lincoln’s claim). Therefore s 6 and 7 of the Law Reform Act apply. There will be solidary liability but the defendants will be required to share amongst themselves pursuant to s 6 and 7.
Action 1 Lincoln v Mandersons
Duty
Occupiers liability is an established category of duty: Australian Safeways. It extends to owing to all foreseeable entrants a duty to care in relation to all foreseeable risks. It arises out of the control of the premises: Australian Safeways. The Mandersons are the residential occupiers.
Breach
S 12 of the CLA states that whether or not a defendant breaches the DOC depends on the balance of probabilities BOP. S 9(1) (a) risk was foreseeable as teenagers were drinking and sliding down a slide. Satisfied as it is foreseeable for injury to arise from sliding down slides while intoxicated. Injury could be expected from incorrectly using a slide. S 9(1)(b) cannot be insignificant, for instance fanciful: Wyong. In this case it a real possibility that drunk...