• The assignment was designed to provide an opportunity for students to apply relevant common law and statutes.
• Students should be graded out of 35.
• Please mark using the criteria outlined in the Course Description.
• I expect the a range of grades expressed based on the following considerations as to grade:
o The best performing students (D – HD) will have answered all questions well and appropriately, and backed up their statements well with appropriate research
o Lesser performing students (P – C) will have answered most of the questions fairly well (take into consideration the specific advice below). They may have made a few minor mistakes, but show at least a passable understanding of the issues discussed below in the specific advice.
o Students who fail will be those students who have not answered the questions, and who do not demonstrate a passable understanding of the issues set out below.
Please feel free to contact me if any marking issues arise that might require my input.
Below I have provided specific advice relating to the three questions.
P is a lifelong fan of the ABC Football Club. While watching a game, P was hit by a stray ball which broke P’s glasses. Please explain who P sue, if anyone? The player? The coach? The local council which owns the football ground? The football club? Please refer to case law in your explanation. (10 marks)
• In regards to the local council, students should refer to Bolton v Stone (1951) which had similar facts. In that situation, the House of Lords found that the risk of the ball actually striking someone was so small that in the circumstances a reasonable person was justified in ignoring it. However, part of the reason he or she would be so justified would be because the task of making the activity safe was extremely expensive- The fence would have had to be extremely high to prevent that type of accident. The court said that the reasonable person only has to take reasonable precautions against the risk and that it is important to balance the likelihood of the occurrence against the cost of eliminating the risk. In this case, to make spectators completely safe from injury would require a high fence around the entire ground- an expensive and potentially dangerous proposition. What would happen if a fire or a fight broke out in the stands and spectators could not escape onto the ground? Reasonable precautions in this instance might have been taken by the local council which owned the ground
• Potential action against a player would probably involve the argument that it was negligent to misdirect the ball into the stands, or negligent of another player to fail to intercept it. It could easily be argued that both of these risks are inherent in the game of football and could not be called a failure to comply with a standard of care. If the act of the player happened in the normal course of the game, the player would most likely not be negligent.
• The coach would be unlikely to recommend to the players to hit the ball into the stands, so it is difficult to determine the basis on which the coach would be negligent.
• It is also unlikely that the football club would be held to be negligent. It would be necessary to show that the club provided direction to direct the ball into the audience in certain circumstances
A lawnmower explosion in the front yard of a house due to a faulty fuel tank caused the following damage or injuries:
(1) Ann, a pedestrian, suffered fractured legs and severe cuts. She was unable to work for three months
(2) Bruce, the owner, was burned. He was unable to work for six months, and incurred heavy medical expenses. Bruce also had to replace the windows and the front fence of his house.
(3) Computer disks containing data supplied by Eric, which were being worked on by Bruce’s wife Carol, were stored in the front room. They were destroyed by the explosion.
Bruce had bought the mower from Hank’s Hardware. Hank’s had bought it from Distributors Ltd., which had bought it from the assembler, Mower Ltd. The petrol engines were imported from Korea.
Please answer all 4 questions below (25 marks)
1. Referring only to the common law duty of negligence, would Ann and/or Carol be able to sue Bruce?
This is unlikely as it is unlikely Bruce breached any duty of care
2. Referring only to the common law duty of negligence, explain the basis of any liability in the tort of negligence that Hank’s, Distributor and Mower might have to Ann, Bruce and Carol. Also consider the possibility of any defences
• Duty of care?
o The parties would most likely owe a duty of care to pedestrians (Ann), as the mower is a piece of equipment used outside, it is likely it would be reasonably foreseeable that a pedestrian might be injured
o The parties would most likely owe a duty of care to Bruce. It would be reasonably foreseeable that he might be injured
o It is arguable as to whether the parties would have a duty of care to Carol and whether it was reasonably foreseeable that she might be affected by any breach
• Breach of duty? It is unclear whether the suppliers unreasonably failed to take precautions against the fuel tank being faulty.
• Harm caused by breach? If breach of duty can be proved, there seems a strong connection between the harm caused and any breach
• Defences? While it could be argued that Ann and Bruce in particular have voluntarily assumed risk, it is unlikely they would be aware that the fuel tank might explode
3. Does Ann, Bruce, and Carol have any possible rights under Part 3-5 of ACL against Hank’s, Distributors Ltd. or Mower Ltd.?
• Ann and Carol- No. They do not appear to be affected persons. They have not acquired the goods or derived title to them.
• Bruce- Yes
o Consumer (s3)
o The goods have a safety defect (s9)
o S138- Liable for loss or damage suffered by individual
o S141- Windows and fence
4. Could Hank’s, Distributors Ltd. or Mower Ltd. raise any possible defences under the ACL?
• Students should consider s142
• Perhaps (c)- The state of scientific or technical knowledge at the time when the goods were supplied by their manufacturer was not such as to enable that safety defect to be discovered.