To people in LAWS1061 (torts!) (1 Viewer)

[tanman]

hey, just wondering for the assignment, who u found was owed a duty of care from soil research department (part 1, question 2)
i've been talking to alotta ppl in my class, seems to be alot of differences between their conclusions for this question.

 

[Inferno]

tanman: Key tip for law - it really doesn't matter what your conclusion is, especially if everyone is getting different ones. The MAIN aim is to make sure your answers are justifiable.

The contentious issues are normally over questions of fact anyway. I concluded that only Hui was owed a duty by the DSR.

 

[tanman]

lol...yeh well i totally stuffed up that bit thats why

 

[Inferno]

which bit?

 

[tanman]

that whole section on DSR duty of care
but how'd u end up with the conclusion only Hui was owed a duty of care?
cos i said all 3 of them were owed a duty of care

 

[Inferno]

Ok you run through the statutory authority tests for DSR, and assume they owe a general duty of care, right?

Then you have to examine each plaintiff for qualification under the nervous shock tests. Mark is barred because he's not a relative, a rescuer or in fear for his own life, and thus lacks proximity. The gay guy (John) does not qualify as a relative of Raj because he's only been his partner for 18 months. Civil Liability Act says you need to be a partner for at least 2 years (in de facto relationships). Therefore, John is not owed a duty.

 

[tanman]

the relationship had to be two years?
where did it say that in the act?
nooooo.....NNNooooOOOOoOOOooooo!!!!!!

 

[Inferno]

Heh, s 30(5) refers to the Property (Relationships) Act, which says 2 years... but you didn't need to look up that act because you should have been told about the 2 years thing in class.

 

[tanman]

haha well there goes 10% of my mark.. >_<

 

[tanman]

hmm...actually...i'm looking at the property act at austlii right now, it doesnt actually say 2 years. just says they taken into account the duration of the relationship...you sure man?

 

[Inferno]

dude, check out Section 17 of the Property act

 

[tanman]

oh..i see it now..sigh..oh well..~
too late to worry now anyway

 

[Inferno]

Yeah don't worry about it, it's just a minor point

 

[tanman]

actually..curious, what u write about non-delegable duties?

 

[Inferno]

A non-delegable duty was owed by DNPW to Hui and Mark (but not John). No duty was owed to DSR.

There is a special relationship between DNPW and cyclists within the park. It doesn't fit into a category already established in law (like an independant contractor/employer; hospital/patient category). It is, however, similar to the invitee/invitor relationship mentioned in <i>Burnie Port Authority</i>. My argument was that this invitee/invitor category could be extended in this case to that of DNPW and park visitors. Because DNPW aren't an inviter - they don't "own" the park - they still have control over people who visit the park. Therefore there's a relationship established between the cyclists and DNPW (but as you can see, not for John, who had nothing to do with DNPW).

The other two tests that require satifying are that the plaintiffs needed to be vulnerable (I argued they were, but that could really be argued both ways), and that DNPW needed to be able to control as to being able to ensure a duty of care was being observed by DSR.

(It's confusing stuff, admittedly.)

 

[Lazarus]

It seems as though many, many different people had many, many different answers. I've included what I argued below... it's not meant to read as though they're the correct and definitive answers, I've just attempted to contrast your points with what I actually wrote.

Originally posted by tanman
hey, just wondering for the assignment, who u found was owed a duty of care from soil research department (part 1, question 2)

I concluded that it could be argued that both Mark and John were owed a duty of care, but probably not Hui (due to her, in all likelihood, not having suffered sufficent harm).

Originally posted by Inferno
Mark is barred because he's not a relative, a rescuer or in fear for his own life, and thus lacks proximity.

s 30(2)(a) of the Civil Liability Act permits recovery if "the plaintiff witnessed, at the scene, the victim being killed, injured or put in peril". Further, Gaudron J has ratified an extension of the duty of care to those "already present at or in the immediate vicinity of the scene" (Tame and Annetts at 48).

Originally posted by Inferno
The gay guy (John) does not qualify as a relative of Raj because he's only been his partner for 18 months. Civil Liability Act says you need to be a partner for at least 2 years (in de facto relationships).
...
check out Section 17 of the Property act

s 17 of the Property (Relationships) Act applies only to "proceedings for financial adjustment", which would include, for example, division of property during a divorce. Instead, the factors enumerated in s 4 should be considered.

Originally posted by Inferno
A non-delegable duty was owed by DNPW to Hui and Mark (but not John). No duty was owed to DSR.

I used the same line of reasoning, but also argued that the aspect of non-delegability could be extended to John in the same way that a normal duty of care could.

 

[Inferno]

Ok, the essay has been handed in and all, so I'm just discussing this for "fun" now

(Coincidentally, I do believe I am mooting you on Monday!)

It is true in terms that the perception of "sudden sensory shock" (direct perception) is a requirement (as you noted in the CLA and Tame & Annetts). However, a further relationship must be shown in order to qualify. The law has restricted claimants to relatives (Jaensch) and rescuers (Mount Isa v Pusey), as well as those who suffered peril for themselves (mentioned in Jaensch, for example, if you see an explosion and suffer shock because you thought you were going to die). It is arguable, as everything is, whether a non-relative who was neither in fear for their own life, nor a rescuer, has sufficient relational proximity.

Section 17 says "court shall not make an order under this Part unless it is satisfied that the parties to the application have lived together in a domestic relationship for a period of not less than 2 years". The CLA has referred and deferred to the definition of de facto in the P(R) Act, and thus orders made "under" the Part must be over two years. (That's my logic anyhow)

 

[Lazarus]

I'll agree that Mark is arguable...

Re: s 17 of the P(R) Act - I meant to point out that the name of the part which the clause is under is "proceedings for financial adjustment" (usually relates to division of property matters etc). But I know a lot of people used it anyway.

Mooting... ? ergh. I'd forgotten about that... really don't feel like addressing another problem question now, heh. Stuart, I take it? Don't suppose you feel like settling the case outside of court?

 

[Inferno]

Yep that's me.

I can't believe we signed up for a Torts moot straight after handing in a Torts essay. Gluttons for punishment... Have you done much for it? I'm finding it hard to get motivated given the holidays have already started (more or less).

 

[Lazarus]

Not a thing.

There, now's your chance to redouble your efforts and slam us down in the actual moot.

Meh... yes, motivation is a real issue for me as well. I just couldn't be bothered. I've been so tired lately, have simply had too much work to do (contracts as well as torts - unsure of your law status, perhaps you had the same). It's mildly comforting that the nervous shock issues overlap a bit with the assignment... but only mildly.

I guess I'll just have to cram on Monday or something; I've already made plans for today (doh).