· Commence each question on a new page.
· The take home examination is worth a total of 50 marks. Question one is worth 20 marks and questions 2 and 3 are worth 15 marks each.
· You must fully reference your responses using AGLC, but you do not have to provide a bibliography.
· The exam has an overall word limit of 3000 words. Footnotes are not counted in the word limit.
o Question One 1200 words
o Question Two 900 words
o Question Three 900 words
· Students will need to identify and discuss the relevant law and policy, and provide reform suggestions (where applicable), creatively addressing these issues in short answer questions.
· Strictly follow marking guide
NOTE: This exam paper may be RETAINED by the student EXAMINATION DETAILS Course Code LAW 1019/LAW2396 Course Description Introduction to the Australian Legal System and Legal Methods Date of exam 17:00 pm 31/10/2019 Due time of exam 23:59 pm 4/11/2019 Duration of exam 4 days Total number of pages (incl. this cover sheet) 7 pages INSTRUCTIONS TO CANDIDATES 1. This is a TAKE HOME exam. 2. Commence each question on a new page. 3. The exam response is due back end of day 4 November 2019, 23:59pm and must be electronically submitted. The exam will be checked for plagiarism via Turnitin. 4. You must answer all questions. 5. Late submissions will be automatically penalised at a rate of 10% of the total marks available per day (or part of a day) late. No extensions can be given by the coordinator – you will have to apply for special consideration. 6. The take home examination is worth a total of 50 marks. Question one is worth 20 marks and questions 2 and 3 are worth 15 marks each. 7. You must fully reference your responses using AGLC, but you do not have to provide a bibliography. 8. The exam has an overall word limit of 3000 words. (Question 1200 words, Question Two 900 words and Question Three 900 words) Footnotes are not counted in the word limit. Question One(20 marks) Key Facts In January 2018, Nancy Black, and her older brother, Schuster, went to live with new foster parents in their double-storey townhouse in Healesville. Nancy and Schuster slept in a shared bedroom, which was located on the top floor of the townhouse. It was the height of the summer. In the middle of the night, Nancy woke up her foster father, Jackson Black, because she was too hot to sleep. Jackson tried to fix the problem by leaving the large window ajar next to Nancy and Schuster’s bunk. Jackson then told Nancy and Schuster not to play near the window as they could fall down and injure themselves. The following day Nancy, who was five years old, was playing on the top bunk with Schuster, who was one year older. Nancy and Schuster began to physically tussle over their favourite tonka truck and were yelling quite loudly at each other. When Schuster let go of the truck, Nancy pulled it with such force that she overbalanced and smashed through the window and onto the concrete path outside the townhouse, while also sustaining deep cuts from the broken window glass that fell down on her. At the time of the fall, Nancy’s foster parents were in the back garden and did not hear the commotion between Nancy and Schuster until it was too late. As a result of her fall, Nancy also sustained serious spinal injuries. Additional Information: Nancy Black, by her litigation guardian (i.e. a person who stands in the shoes of a child or young person in order to provide instructions to a lawyer in the matter) has filed a claim against Jackson Black in the Supreme Court of Victoria. Assume that: · you are a single judge sitting in the Supreme Court of Victoria; · the only relevant precedents are the three cases summarised below. You are required to: · write a draft judgment in relation to Nancy’s claim for damages. Your answer should: · determine the precedential value of each of the previous decisions (i.e. whether the decision is binding, persuasive, not binding, distinguishable); · on the basis of these previous decisions, set out whether you find that Jackson Black owed a duty of care to Nancy; and (if so) whether that duty has been breached in this case. In your answer, do not apply any other case law or learning relating to the law of negligence that you may have acquired from studying the Law of Torts. Harriet (by his litigation guardian) v Osbourne High Court of Australia (1969) Summary of Facts James Harriet’s parents were attending a wedding in Sydney. James, who was four years old at the time, was being cared for by his aunt and uncle, Mary and Jack Osbourne. The Osbourne family lived by the side of a busy country road in the Hunter Valley in NSW. After a long game of hide-and-seek with his cousin, James was hungry and in need of refreshment. However, his parents had given him strict instructions to ask for permission before helping himself to food. He wandered outside to the front yard and called out to his aunt, Mary. At the time, Mary was on the opposite side of the road, but obscured from view. When she heard James call out, Mary responded, “I am over here, James”, but she did not see the oncoming vehicle from her position on the opposite side of the road. James proceeded to cross the road towards Mary and was subsequently struck by a vehicle driven by a man who was heavily intoxicated at the time. James suffered serious head injuries as a result. James, by his litigation guardian, sued the driver of the vehicle and Mary for breach of their duty of care to him. There was no dispute that the driver of the vehicle who struck James had been negligent. At first instance and on appeal to the Court of Appeal of the Supreme Court of New South Wales, the claim against Mary had failed. James appealed to the High Court of Australia on the question of whether Mary had also been negligent and thus liable to contribute to the damages awarded to him. Jackson, Watson and Lowey JJ The fact that Ms Osbourne was related to the plaintiff does not answer the question of whether she owed a duty of care to the child or whether such a duty was breached. Rather, these questions turn on the circumstances of the case and, in particular, the level of control exercised by Ms Osbourne over the child and whether this control exposed the child to harm. If Ms Osbourne had actively encouraged the child to cross the road, she would have been negligent. In doing so, she would both have exercised control over him and subjected him to danger. The calling action would both found a duty of care and constitute a breach of that duty. In this case, we acknowledge and accept the findings of the trial judge that the aunt had not, in fact, called or urged the child to cross the road. Nonetheless, we find that Ms Osbourne assumed responsibility for the welfare of the child in the absence of his parents. In addition, Ms Osbourne was aware that the child was likely to cross the road following her response to him. We conclude that, on the basis of these combined facts, Ms Osbourne owed a duty of care to Mr Harriet. This duty required Ms Osbourne to reasonably protect James from the foreseeable risk of injury. Her failure to check on his whereabouts following her response was less than reasonable. The risk of suffering harm while crossing a busy country road is not unforeseeable. We conclude therefore that Ms Osbourne was liable to contribute to the damages amount. Appeal upheld. Voss and Taylor JJ (dissenting) While it is conceivable that there will be a duty on a person into whose care a child has been placed, the law does not impose a general duty of care upon a relative simply because of a blood relationship. The moral duties of conscientious parenting do not as such provide the child with any cause of action when they are not, or badly, performed. However, it is equally important to recognise that the existence of a familial relationship confers no immunity from suit. Parents, relatives and strangers alike may become liable to a child if the child is led into danger by their actions. In the circumstances of this case, Ms Osbourne did not owe the child a duty of care at the time he called out to her, as she had not known of the danger facing the child. However, had Ms Osbourne beckoned the plaintiff to her, she would have come under a duty to take reasonable care for his safety in relation to any foreseeable danger to him which the crossing of the road would involve. On the facts before us, Ms Osbourne had not called the child to her and thus no duty of care arises. Just because the child had wandered out did not also make it foreseeable that the child would then also go on to cross the road. The appeal should be dismissed. Paxton v Ruffy (by her litigation guardian) Court of Appeal of the Supreme Court of South Australia (2009) Summary of Facts Judith Paxton was staying in the top floor of a rented holiday unit with her daughter’s family over the Christmas break. At 5:15am on Boxing Day morning, Judith heard Otus Ruffy, her six-month old granddaughter, crying in the bedroom next door. Judith went in to comfort Otus as Otus’s mother had hinted the night before that she was keen to sleep in. Judith was unable to settle Otus and thought that she might be hungry. She lifted Otus out of the cot and proceeded to walk down the stairs to the kitchen area to heat up some milk. The stairwell leading to the kitchen was poorly lit. Judith did not turn on any lights for fear of waking others up, but held tightly on to the handrail and proceeded slowly down the stairs. While walking down the stairs carrying Otus in her arms, Judith tripped and fell down the stairwell. Otus suffered serious and permanent injuries as a result of Judith’s fall. Otus, by her litigation guardian, initiated a claim against Judith seeking damages for her injuries. Otus’s claim was initially upheld in the Supreme Court of South Australia. Judith appealed to the Court of Appeal of the Supreme Court of South Australia. Judgment of Bozzolla and Prickly JJ A critical feature of this case is that Ms Paxton took physical custody and control of the child when she carried Ms Ruffy, the plaintiff, from the room in which the infant had been sleeping. Once Ms Paxton took charge of the plaintiff in this way, the infant became entirely dependent on her grandmother for protection against injury. Whenever an adult carries an infant there is a foreseeable risk that the infant could be harmed in a myriad of ways. The likelihood of the adult falling and causing harm to the child is no doubt low, but as a matter of common experience household accidents involving falls are not unusual. In light of this, we find that Ms Paxton owed the plaintiff a duty to take reasonable care to protect Ms Ruffy from the foreseeable risk of injury arising while she was in Ms Paxton’s direct physical care and control. That