Torts Law Essay

Question One

In 2006, the Council of the Shire of Kelewan (“The Shire”) just recently engaged

engineers to build a new bridge ‘Avenue Bridge’ – an access bridge over a gully. The

bridge was built to specification as required by statutes. The bridge is 15 meters long

and 10m high, and serves a large recreational area that included a skate park, football

oval, swimming pool, youth centre and local RSL. On Friday nights, the bridge was a

place for local youths to congregate, talk and wait for friends and drink together. The

council has been notified that the bridge has become a place for youths to meet and

drink alcohol.

Jeff is a 19 year old first year law student. One night, he and a number of friends had

just attended a ‘battle of the band’ competition at the RSL in celebration of end of year

exams. At such gatherings, many students would bring their own alcohol to consume.

Jeff was excited after his exams and decided to have a ‘big one’ – he consumed a large

quantity of whiskey during the course of the evening. Jeff became quite intoxicated,

having only had a cheese sandwich for lunch.

At 2.30 am Jeff and his friends left the RSL and intendied to catch a taxi home.

However, since it was a busy night and the taxi rank was congested, Jeff and his friend

Matt decided to walk home via the bridge while the others waited for a taxi. They met

some fellow law students who were hanging out at the bridge smoking marijuana and

drinking. Jeff and Matt sat down to talk with the other students. At this point, Jeff began

to feel nauseous, telling Matt ‘I think I am going to vomit’. Mat replied ‘Make sure you do

it over the bridge and not on me’. Jeff runs quickly across the road and leapt up on a

concrete step separating the rail and the road, he attempted to grab the railing but

instead he fell over the railing and into the river. On that night, there was not much water

in the creek. Jeff suffered severe spinal injuries resulting in paraplegia and also other

injuries.

Jeff’s friend Matt was standing by near the railing and saw his friend fall head first into

the river. Matt has been Jeff’s best friend since they were young. As a result of

witnessing the horrific fall, Matt developed post traumatic stress disorder.

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TORTS LAW MODEL EXAM

1) Advise Jeff of any action he might have against the Council and whether the

council has any defences (do not discuss any cross-claim the Council might have

against the engineers).

2) Advise Matt of any action he might have against the council.

Answer

a) Jeff vs The Council

Jeff would commence legal proceedings against the Council in negligence for the

damage he has suffered. In advising Jeff of the likelihood of successfully commencing

these proceedings, the relevant legal principles outlined in the Civil Liability Act 2002

(NSW) and the cases interpreting these statutory provisions, will be applied to the facts

of this case.

Duty of Care

The relationship between Jeff and the Council does not fall within the established

categories of duty of care. Consequently, for the court to impose a duty of care, they

would adopt the incremental approach based on reasonable foreseeability and salient

features (Perre v Apand).

(I) Reasonable Foreseeability

In Romeo and Australian Safeways, the court in both cases held that a public authority

has a duty to exercise reasonable care to prevent foreseeable risk of injury to the public

arising out of structure and conditions of premises/land that it owns. In applying this legal

principle to the present case, it is reasonable to assume that the council knew hen

building the bridge that it was to be used for recreational purposes and pedestrians who

may or may not be under the influence of alcohol. Hence, the element of reasonable

foreseeability would be established by Jeff.

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TORTS LAW MODEL EXAM

(II) Salient Features

The predominant salient features which would establish the existence of a duty of care is

vulnerability of the Plaintiff and control of the Defendant. These salient features were

examined in Ryan v Great Lakes Shire Council where the High Court identified that (i) a

high degree of control exercised by the Defendant over the risk of harm that eventuated,

may result in the imposition of a duty of care; and (ii) a high degree of vulnerability of the

Plaintiff who relies on the care and skill of the Defendant, may further lead to the

imposition of a duty of care.

In applying this decision in the present situation on the basis that it was intended

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