Tutorial work - Week 5, Questions and Anwers PDF

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Week 5 Questions and Anwers...

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Introduction to Law 200006 Autumn 2012 – Liesel Spencer – Skills Workshops p 1

Week 5 Skills Workshop Reading and preparation:   

Print this worksheet Revise finding legislation from week 4 workshop Read the client’s facts below

This week’s workshop involves finding and reading legislation, then finding cases which interpret and apply the legislation. The legislation and cases together will constitute the relevant law you will need to advise the client on the facts below: Josh, your client, is a student at UWS. Several of his mates are “planking” on a wall outside the law school and taking photos of each other for Facebook. “Planking” involves holding your body horizontally with your weight balanced on your hands. Josh decides to have a turn at planking on the wall. On the law school side, the wall is only 1m off the ground. Josh tries planking on the wall and falls over the other side, which is 2m above the ground, fracturing his skull. The senior partner at your law firm asks you to prepare a memo of advice as to how Divisions 4 and 5, especially ss 5F, 5K and 5L will apply to the client’s situation.

1.

Go to http://library.uws.edu.au/

2.

E-Resources → Law → Legislation (lower LH side of page) → New South Wales www.legislation.nsw.gov.au (alternatively, www.austlii.edu.au – New South Wales – Consolidated Acts - C) Locate the Civil Liability Act 2002 (NSW). Read Divisions 4 and 5, especially ss 5F, 5K and 5L. How do these sections affect your client, above? What is the definition of “dangerous recreational activity”? These sections affect my client as he has clearly put the plaintiff in an “obvious risk”. Dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.

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What is the definition of “obvious risk”? An “obvious risk” to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. How will your client be affected if the court decides that what he was doing was an “obvious risk” of a “dangerous recreational activity”?

3.

E-Resources → Law → LexisNexisAU → CaseBase Cases (in column on RH side of page) → Click on blue Search link → in the “Legislation Judicially Considered” box put this text: civil liability w/p 5H This is one method of searching for cases in which the court has interpreted and applied particular sections of legislation. The “w/p” refers to “within the same paragraph” to narrow your search so you don’t get too many irrelevant results.

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The first search result is the case of Laoulach v Ibrahim [2011] NSWCA 402. Click on the case name to go to the CaseBase entry, then click on the citation [2011] NSWCA 402 to link to the judgment. Read the court’s decision about the application of Divisions 4 and 5 in Para [115] to [124]. How did the court interpret and apply the definitions of obvious risk and dangerous recreational activity? The trial judge thought the activity in this case was a dangerous recreational activity (see para [88]), but the appeal court did not agree (see para [121] to [124]). [115] The primary judge found at [177] of his reasons that the risk of serious injury to the appellant arising from impact with the bottom of the bay upon diving into the water of uncertain depth would have been obvious to a reasonable person in his position within the meaning of s 5F(1) of the CL Act. The appellant takes issue with that finding [124] For the foregoing reasons in my opinion his Honour was correct in finding that the risk was “obvious” but in error in finding that the appellant was engaged in a “dangerous recreational activity” within the meaning of s 5K of the CL Act.

4.

Return to the list of results from your CaseBase search. The next result to read is Council of the City of Greater Taree v Wells [2010] NSWCA 147. Click on the case name to go to the CaseBase entry, then click on the citation to link to the judgment. Read the judgment of Beazley JA (with whom the other two judges agreed) – read the facts in para [1] to [18], then read para [79]. How did the court interpret and apply ss5F, 5G and 5H to decide if the risk in this case was an obvious risk?

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[74] Sections 5F, 5G and 5H provide, relevantly: 5F Meaning of “obvious risk” (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent,

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conspicuous or physically observable.  5G Injured persons presumed to be aware of obvious risks (1) In determining liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. 5H No proactive duty to warn of obvious risk (1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff. 

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[79] In my opinion, although a reasonable person in the position of the respondent could not expect that conditions along or in respect of the path would not change, a chain which may not be visible to a cyclist taking reasonable care, until a short distance before coming upon it, is not an obvious risk. The trial judge’s finding on this was clearly one that was available on the evidence and no reason has been shown calling for appellate intervention. In my view, a reasonable person in the respondent’s position would not have concluded it was probable that a council in the appellant’s position would sling a chain across a pathway which, having regard to the colour of the chain itself and the surrounding environment, was not visible to cyclists or others travelling along the path at greater than a walking pace until shortly before coming upon it.

5.

Follow the procedure above to find the case of Jaber v Rockdale City Council (2008) Aust Torts Reports ¶81-952. Read the CaseBase entry – what do you find useful or time-saving about this entry? Click on the citation [2008] NSWCA 98 to go through to the judgment itself. (The Australian Torts Reports citation is not a hyperlink because LexisAU is not the publisher of that series.) Read the judgment of Tobias JA (with whom Campbell and Handley JJA, the other two judges sitting on the Court of Appeal bench on this case, agreed), at paragraphs 42 54 50-55. Why was the plaintiff in this case unsuccessful? How does this case help you understand what an “obvious risk” of a “dangerous recreational activity” is under the Civil Liability Act 2002 (NSW)? This entry is useful and time-saving as it provides a point by point summary of the case.

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6.

Go back to the Jaber v Rockdale City Council Casebase entry. Under “Cases Considered by this Case” you will see that the court in Jaber applied the case of Fallas v Mourlas [2006] NSWCA 32in reaching their decision. Click on the medium neutral citation link to Fallas v Mourlas. (The NSWLR link will not work because the library does not subscribe to that report series.) Did the court in Fallas v Mourlas find that this was a “dangerous recreational activity”? Was the risk that eventuated in this case, an “obvious risk”? (Hint: see the “summary of findings” section prior to the individual judgments to help you answer these questions). 1. The activity Mr Mourlas was engaged in was a “dangerous recreational activity” within the meaning of s 5K 2. The risk that materialized did not constitute an “obvious risk” of the dangerous recreational activity as defined in s 5F.

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Take all of the information above and discuss what you now know about:    

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What the statute says How the courts have interpreted and applied the statute Statutes offer a way of providing compensation, protecting society and seeking justice for humanity Courts assess each individual case refer to statute on that particular case and interpret what the statute says about a particular case then come up with a judgement. You have now identified the ISSUE you have to deal with in order to write the memo to the senior partner as instructed – remember the issue you have been asked to advise on is “how Divisions 4 and 5, especially ss 5F, 5K and 5L will apply to the client’s situation?”

9.

You have also researched the relevant LAW, both legislation and cases.

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10.

Next week we will look at how you APPLY the relevant law to the facts of the client’s situation, and what CONCLUSION you would draw from applying the law to the facts....