INSTRUCTIONS
The hypothetical task consists of three (3) questions. All three questions are to be answered. The marks distribution is reflected against the questions.
NB: In Question 3 there are two choices, and you are to provide one ONE response to ONE choice in Question 3.
Answers to the three (3) questions cannot exceed a total of 2,200 words. Footnotes are not counted in your word count. However, if you put substantive discussion in your footnotes it will be added to your word count. Any words in excess of 2,200 will not be read
AGLC4 citation style applies. Bibliography is NOT required.
Question 1 (45%)
Jimmy was a bit of a lad. He liked to go bushwalking, play racket ball, hang out down near the river and go to the pub on Sundays for a beer or two.
One Sunday he went to his regular watering hole called the Crazy Two Dogs Pub owned by Pippy Smithers. The pub was rocking with the local band, “A Spoon Full a Medicine” playing. Jimmy got up from his regular seat and started walking to the bar to buy another beer. He was having a good time just kicking back at the local, relaxing, getting ready for another week’s work as an astro supra chemist working in Astra Zenica labs developing Covid vaccine formulas as head of the R and D team for this newly exploding pandemic gripping the world.
Jimmy was walking to the bar when all of a sudden a massive speaker stack collapsed on him. Jimmy was now wallowing around on the floor in a world of pain. An ambulance was called and Jimmy was rushed to hospital for urgent treatment. This accident happened on the 1 March 2020.
Sadly Jimmy suffered some serious injuries. Some of them long term and some short term. He was not able to work at all for a year. After a year he was able to return to work on a part time basis being two days a week. It is unlikely he will ever be able to work for any more than two days a week until he retires. Jimmy is now 35 years old. He was earning $7,000 a week net plus superannuation in his job at the time of the accident. The superannuation was paid at the prescribed rate as per the relevant legislation.
Jimmy racked up a medical bill of $100,000 of which $80,000 was paid by Medicare and he paid the balance himself. He had ongoing requirements of physiotherapy from the date of the injury of three sessions per week and will require this until 1 March 2025. It is expected he will not require any more physiotherapy after that. He will require pain treatment though at $30 per week for the rest of his life. The hospital had provided him with enough pain treatment up to the date of the trial and this was included in the $100,000 previously mentioned (in the $80,000 covered by medicare).
Jimmy can no longer look after his elderly mother who he lived with. He used to provide her with domestic services of 10 hours a week. Jimmy’s mother, Doris Day, will now need to get this assistance from Jimmy’s sister, Belle Arive who moved in to help Doris. Belle also helped Jimmy with his assisted needs now that he was not able to look after himself since the accident. Belle looked after Jimmy for six hours a week for nine months. Then Jimmy could look after himself.
Jimmy has constant ongoing pain issues. He ended up with quite a bit of scarring on his back and neck from the lacerations and stitches required to mend the wounds. He also now suffered quite a bit from anxiety and could no longer listen to any music (especially A Spoon Full of Medicine) which was one of his favourite pastimes before the accident. He has turned into a bit of a recluse and no longer goes bushwalking, swimming or down to the pub for fear of having a panic attack at the sight of a speaker stack.
The date of the trial is the 1st March 2021. The pub owner has conceded liability and acknowledged negligence on his part. The speaker stack was owned by him and had nothing to do with the band who just used it when they played there.
Assess damages for Jimmy assuming the above facts. There is no need to consider causation and remoteness as Pippy has conceded this. Identify all the possible heads of damage and do some calculations of the likely losses. Explain all the principles behind the assessment of damages with reference to case law and legislation, if applicable. Show your workings of calculations in separate boxes and these workings are not counted in your word count.
Question 2 (30%)
A The Gibsons are joint owners of land who agreed to sell the land to Adam. Before settlement, Mr Gibson became bankrupt and went to jail and Mrs Gibson was diagnosed with lung cancer and had to undergo extensive chemo treatment that has left her bedridden. The Gibsons have built extensive community ties and now depend greatly on the support of the local community to take care of Mrs Gibson in the absence of Mr Gibson. The Gibsons no longer want to complete the contract with Adam as they want to continue to have the support of the local community. Adam has approached you for advice on his chances of securing an order for specific performance. (10%)
B (i) Assuming that a negative covenant is valid, is an injunction to restrain the breach of such a negative covenant bound to be granted? (5%)
(ii) Explain when an injunction can be said to be equivalent to a decree of specific performance. (5%)
C Suncorp Holdings Ltd instructed its solicitors, Beswick LP, to act for it in the provision of a loan to Mr Patel for the purchase of a property located at Eastwood, secured by a charge over the property. Suncorp transferred the loan funds of $800,000 to Beswick LP to be held on trust and released once the property was purchased and charged to Suncorp. In breach of trust, Beswick LP released the funds to Mr Patel for the purchase of the property without executing the charge. Three years later, Mr Patel became bankrupt, and his assets were taken over by the trustees in bankruptcy to settle his debts. Suncorp lost the whole of its unsecured investment. You have been approached to advise Suncorp as to the possibility of a remedy against Beswick LP. (10%)
Question 3 (25%)
Instructions: Answer ONLY one question from this section
(A) The stolen generations refer to a period in Australia’s history when the rights of indigenous people were violated through policies that led to the forced removal of indigenous children from their homes. The effects of these policies have left lasting impacts that continue to adversely affect indigenous people in Australia. Even after the discontinuation of these policies, the rights of indigenous people in Australia continue to be violated through systemic acts of racism, discrimination and abuses such as the disproportionately high levels of incarceration of indigenous persons compared to non-indigenous persons; higher rate of deaths in custody; and poorer health and socio-economic outcomes compared to non-indigenous people. Efforts at seeking reparations through political, legal or other measures have either fallen short of expectations or met with barriers.
You are part of Social Justice Initiative, an advocacy group committed to fighting for the rights of indigenous people in Australia. You have been tasked with developing an advocacy strategy for advancing the claims of indigenous people to reparations for historical and ongoing violations of their human rights through international law. Advise on how international law can be deployed to aid your advocacy, the strengths and limitations of international law in this regard.
(B). Jane bought a brand new guitar from Guitars r Us for $5,000. The sign at the shop entry stated it was a unique one-of-a-kind guitar made in USA by Brot Wurst and was highly sought after by musicians everywhere.
She took it home and was so excited to play this little ripper. She plugged it in to the amplifier and started playing away. Next thing she knew there was smoke pouring out of the amplifier she had plugged it in to. The amplifier blew up in a puff of smoke. The guitar also fused out and was no longer playing. The garage where Jane was sitting also was badly burnt. Luckily Jane was not injured.
It turned out the electrics in the guitar were faulty and this resulted in the fire. The guitar also was made in Krakistan (not USA) and was a $50 cheap replica and was not made by Brot Wurst. It was imported by Guitars r Us. There is no outlet for the Krakistany manufacturer in Australia.
Discuss the remedies available for Jane under the Australian Consumer Law.
