Assignment Question
Question 1 - Olivia is a keen gardener. She is particularly proud of the large apricot tree in her back yard, the branches of which overhang her barbeque area and provide her with shade. Olivia awakes one morning, however, to discover that her new neighbours have lopped off almost half the branches of her apricot tree, hoping to get more light in their main bedroom.
Olivia is furious and seeks your legal advice.
Questions to consider when answering Question 28.11:
Is the damage to person or to property?
In light of the harm suffered by P, what is the most appropriate action? Trespass to land?
Can Olivia show a direct interference with her lawful possession of land?
Does there have to be an entry on to her land for a trespass to arise?
Did she consent to the lopping of the tree?
Do the neighbours have any defences available to them for their actions?
Question 2 - Recently a corporation has been advertising in women's magazines an electronic muscle stimulation product known as "Slendertone" stating that the product can: "tone and firm any party of the body with no effort by the user", "provide the user with the benefit of a workout without exercise", "reduce the user's body measurements by an inch or more" and "give the user, in 40 minutes per day, the equivalent of 300 general exercises." The product in fact does none of these things.
Advise the ACCC and affected consumers.
Questions to consider when answering Question 17.7:
Does the ACL apply?
Did the transaction take place in trade or commerce?
What sections of the ACL appear to be in breach?
In order to establish a breach of s 18 what has to be established?
Is the advertising likely to be misleading or deceptive or likely to mislead or deceive?
Does the advertising contravene s 29(1)?
What remedies are available to an individual consumer?
What remedies would the ACCC be likely to seek?
Question 3 - Yvette is a medical student assisting at a doctor's surgery. Benjamin visits the surgery, complaining of chronic fatigue. Yvette conducts a brief examination of him while the doctor is out for lunch, without informing him that she is not a fully qualified medical practitioner. Yvette tells Benjamin that he is in good health and has been studying too hard. On his way home, Benjamin falls asleep at the wheel and hits a parked car, causing significant damage to both vehicles. Medical examinations after the accident show that Benjamin has a sleeping disorder, which could have been diagnosed and treated by a competent doctor.
Advise Benjamin.
Questions to consider when answering Example Question:
Is the damage to person or to property?
In light of the harm suffered by P, what is the most appropriate action? Negligence?
Does Yvette owe a duty of care to Ben?
Was it reasonably foreseeable that her acts or omissions could affect Ben's well-being?
Is there a relationship of proximity?
What is the standard of care in this case?
Is the standard of care higher than that of a reasonable person?
Has Yvette breached her duty of care to Ben?
Has Ben suffered damage?
Can Ben establish causation and remoteness?
Are there any defences available to Yvette?
Assessment Criteria - Written presentation
Identify the issues of the problem.
Explain the relevant law relating to the problem.
Discuss the potential legal arguments relating to the problem.
Summarise a balanced conclusion to the issues of the problem.