Question 1: Lance was riding his bike along a pathway that followed the edge of the Parramatta River in Western Sydney. Lance was an experienced cyclist. Last Saturday he was towards the end of a 30 km ride, which he was undertaking with his wife, Cadella. The path that Lance was riding on included a road crossing, at a street called Macquarie Avenue. The pathway ran downhill as it approached Macquarie Avenue. Lance braked as he got to the bottom of the hill and looked left and right to see if there were any cars on the road. As there was no traffic, he proceeded across Macquarie Avenue to the pathway leading into the park on the other side of the road. It so happened that Parramatta Local Council had strung a chain across the pathway at the entrance to the park on the other side of the road. Lance did not see the chain until he was about 10-12 feet away from it. He braked, but not in sufficient time to stop before colliding with the chain. He skidded, and the front wheel of his bike caught in the chain. He was catapulted over the handlebars, landing on his head.
Lance was unable to estimate the speed that he was going at the point of collision with the chain. He said he braked as he came to the bottom of the hill. Lance had cycled this particular route the previous Sunday, but there was no chain across the entrance to the park at that time. The chain had been placed across the pathway two days before the accident to stop cars from entering the park illegally. It was painted grey, the same colour as the footpath. Lance understands that part of being an experienced cyclist was appreciating the environment in which the ride was taking place.
An aspect of that appreciation was recognising that conditions sometimes change. Lance also understood that if he had been riding "a bit slower" the chances were he would have "been able to stop before the chain". A couple of minutes later, Cadella arrived at the scene of the accident to see her husband sprawled on the ground. The scene was horrific. Her husband was on the ground unconscious, and he had blood pouring out of a deep cut in his head. Lance was in hospital for a number of weeks after the accident, and it was only after the first week that Cadella thought he was going to survive. As a result, Cadella suffered nervous shock.
Explain what action or actions Lance and Cadella could bring against Parramatta Council. Do not discuss damages.
Question 2: On 1 June Amber agreed to sell 500 tonnes of A Grade West Coast sand to Bill for $100 per tonne which was the current market price at the time. The sand was to be in good condition upon delivery. The sand was to be delivered in 2 equal instalments with the first instalment to be delivered as soon as possible and the second half two months later. The price was payable upon delivery. When Amber delivered the first instalment to Bill on 1 July Bill rejected it and told Amber he was terminating the contract. He did not give any reasons. Amber sued Bill for damages for breach of contract. At the trial the following facts appear:
The first instalment was only 210 tonnes.
It was possible for Amber to have delivered it sooner but she chose to use all her stock of sand at the time to fulfil another contract with a first time customer from whom she hoped to get repeat trade.
Water had seeped into the truck carrying the sand and at the time it had arrived at Bill's 70% of it was wet and it would have taken Bill twice as long to unload it and move it to storage than if it had been dry.
The market price for A Grade West Coast Sand after entry into the contract dropped to $80 per tonne and Bill "wanted out" of the contract so he could obtain cheaper sand on the market.
After termination of the contract the price for A Grade West Coast rose to $110 a tonne and Amber was able to sell all her supplies on the market. Do you think Bill had a right to terminate the contract? If you assume Bill had no right to terminate the contract what damages could Amber recover from him?
Put aside the facts in (a)-(e) and assume that after Bill terminated the contract the only relevant fact in evidence was that the first instalment tendered was Grade A East Coast Sand which was the same quality as Grade A West Coast Sand and had the same market price and was suitable for Bill's use. When the instalment was rejected by Bill, Amber inspected the sand and noticed it was East Coast sand, she quickly offered to send over the West Coast sand she had in stock for Bill but Bill had said that it was too late. What would be the rights of Bill and Amber in this circumstance?
Question 3: Andrew always gets his car repaired at Smith's Auto. He has been going there for 7 years and takes his car there for repairs and service about twice a year. As he enters the door of Smiths' there is a sign on the wall behind the counter that says, ‘All vehicles are accepted for repair subject to the terms and conditions appearing in our invoice'. The sign is on white paper (A4) with Black writing, next to it are numerous advertisements for products sold at Smith's auto. Andrew never read the sign, he always dropped off his car on his way to work and was in a hurry.
When he returned to pick up his car the attendant would hand him an ‘invoice' to sign. This had his name on it, the details of the car and the work done. The invoice stated:
The customer acknowledges that the agreed repair work has been satisfactorily performed.
Smith's Auto regrets that no responsibility can be accepted for damage or loss caused to the customer's cars by fire, theft or otherwise.
On the occasion in question Andrew left his car for some repair work to be done and followed the usual routine set out above. When he returned to pick it up the next morning he signed the invoice as above and went out into the yard to collect his car. To his shock he found that the GPS navigation system fitted to the car was missing and the car clearly showed signs of being in an accident.
The evidence shows that overnight thieves had broken into Smith's Auto and stolen the GPS system from the car. Andrew's car was not locked, however, Smith's Auto was locked and the alarm was on but the thieves managed to disarm the alarm system and get past the locks: it was alleged it was an inside job but this could not be proven.
In addition, during the previous day the manager needed to go to a meeting. The car yard was full of cars that day that were in for repairs and he could not get his own car out without having to move many cars. Andrew's car was over near the curb so he decided to take it to get to his meeting. By this time the repair work had been done and the manager thought it would be good to see how it was running before Andrew picked it up. He drove the car to his meeting and parked it outside the cafe where the meeting was being held.
While at the meeting someone ran into the car causing damage to the rear of the car. They then drove off and were never identified.
Andrew seeks your advice as to whether Smith would be protected by the clauses in the invoice if Andrew were to take action against Smith's Auto. Answer this question by reference to general principles of common law. Do not consider any statutory provisions you might think relevant.
Question 4: Colin is a qualified chef. His wife Betty is employed as an astronomer and university lecturer.
For a family get-together, they borrowed a gas barbeque from their neighbour who had received it as a Christmas gift. The box it came in hadn't even been opened.
The instructions, on the box, stated:
"Do not commence using this barbeque without having read these instructions."
Colin read the instructions quickly. They stated that the hose connected to the barbeque's gas bottle should be properly sealed to avoid gas leakage. The instructions did not indicate how this was to be done. For instance, it didn't say that plumbers tape should be used to seal the connection. Nor did the instructions advise that smoking should be prohibited within 3 metres of the barbeque when it was in operation. As it was, the thread on part of the gas bottle to which the hose was connected was defective.
Colin's father, Alan lit a cigar whilst standing next to the barbeque. He threw the match on the ground. The gas bottle immediately exploded. Colin, Alan and Betty all received 3rd degree burns to various parts of their body.
Betty is likely to remain partially blind and her vocal cords have been severely scarred. The barbeque, garden furniture and some valuable rare orchids were destroyed. The back of the house, which was of timber construction, suffered severe fire damage as did various personal items in this part of the house.
Advise both Colin, Alan and Betty of their rights to recover damages from the manufacturer of the barbeque, referencing Australian Consumer Law
Answer both Part (A) and (B) - each is worth 5 marks
A) group of people join together to form the Ballooning Association of Victoria. They decide not to incorporate. Janet is worried that she may be liable if a person is injured while ballooning and the association is sued. Advise Janet.
B) Ella and Tingyi open a fashion design business as partners after April 2011. They want to call the business "Denim and Lace'. Advise them on whether this name will require registration and, if does, what is the process they must undertake.
1500 words
8 references