LEGL2002 Foundation of Tort
You have been asked by a senior partner in your firm to provide a case-note and a memo of advice. Both of these concern a new client, Keiran Ellis. About six months ago, on 16 January 2021, Keiran suffered injuries when he stepped into a pothole and fell, in a Council carpark in Lismore, NSW. Kieran is forty-three years old. He is a nursery manager who lives at Evans Head. On the day of the accident Kieran was attending a cricket carnival at Oakes Oval, a sports stadium in Lismore, with his young son George. The carnival had finished, and Kieran and George were leaving the stadium and walking to the Council carpark across the road, where they were meeting Kieran’s partner who was coming in her car to pick them up. Kieran was carrying a large shoulder bag with all of George’s cricket gear in it. From a distance Kieran thought that he saw his wife’s car parked in the middle of the carpark, so he crossed the road with George in such a way as to head in a straight line towards where the car was parked. This meant that once they reached the other side of the road Kieran and George needed to walk directly through a raised strip of garden at the edge of the carpark, which ran along beside the footpath. This was not a designated entrance to the carpark however it was the quickest way to get to where Kieran thought his wife’s car was parked, so he decided to take a short cut through the garden. The garden strip was about three metres wide and was raised up in a low earthen bed covered in mulch and bordered by a thin concrete verge at the same height as the garden. The garden had shrubs and small bushes planted in it, which were spaced far enough apart that it was possible to walk through them quite easily in some places. Kieran was aware of the raised garden bed as he approached it, and was keeping a lookout. He stepped up from the footpath into the garden and walked between two shrubs, brushing aside some shrub foliage and carrying the bag with cricket gear in it in front of him with the shoulder strap loose at the side. As he passed between the two shrubs the shoulder strap snagged on a broken branch, so he stopped and twisted sideways a little to free it. He then turned back toward the carpark and stepped down off the concrete verge at the edge of the garden onto the asphalt, into a small, shallow pothole at the very edge of the carpark that he had not seen. The pothole was roughly oval shaped, about 70 centimetres across, and 50 centimetres wide. It had been caused by recent very heavy rains in Lismore, over Christmas, during which that part of the carpark had flooded. Kieran was not expecting it at all, and after he stepped into it he lost his balance and fell heavily onto the asphalt, breaking his ankle and his right wrist. He has also badly aggravated an old shoulder injury. He has been unable to work as a nurseryman since the injury, and he faces a long rehabilitation ahead of him. It is likely that his shoulder will never fully recover. He is suing Lismore Council for loss and damage. He says the risk of someone tripping and falling over that pothole was high, despite the fact that the pothole was quite small. Lismore Council should have fixed the pothole as a matter of urgency, or else cordoned it off after the floods so that it could not be stepped into by members of the public using the carpark. PART A: THE CASE NOTE First, read the judgment in Council of City of Sydney v Bishop  NSWCA 157 Now prepare a detailed case-note of that judgment, identifying the following: The case name, citation, and parties in full The Court, and the names of the judges who decided the case The name of the judge who gave the leading judgment, and the name of the judge who dissented The procedural history of the case - i.e., where it was first heard, by whom, what was the outcome at first instance, and what final orders were made by the trial judge at first instance The legal basis of the appeal including, in detail, a list of the specific legal issues raised by the party appealing A detailed summary of the majority judges’ decision, including an analysis of how they applied the law to the relevant facts, the conclusions they came to, and how they different in their opinion from the minority judge The final orders made by the Court PART B: THE MEMO OF ADVICE In light of Council of City of Sydney v Bishop, and other relevant leading cases, provide a legal advice to your senior partner, indicating whether or not Kieran has a case in negligence against Lismore Council. Remember that all of the elements of the tort of negligence need to be satisfied before Kieran will have a case. You therefore need to discuss each of the legal elements of the tort separately, and set out what needs to be proven, before drawing your conclusions based on the facts. Please note that you are not required to consider heads of damages or calculate the quantum (amount) of damages. Remember that when analysing the elements of the tort, you need to refer closely and specifically to the leading cases and the statutory provisions which are relevant to your advice.You need to cite these cases and statutes properly, and explain in your advice what they stand for. This is NOT a personal opinion; this is a legal advice. You cannot write a legal advice or make a legal argument simply by giving your own opinion, or by mentioning the textbook or the lectures to support your position. You must cite proper legal authority, which means the relevant leading cases and statutes. We will be discussing how to do this in lectures and tutorials. Please make sure that you pay attention. Negligence is not an easy tort to analyse, and if you do not engage properly with the unit content you will be in danger of failing the assessment.