Legal System and Methodology Exam
Question One (20 marks)
In January 2018, Nancy Black, and her older brother, Schuster, went to live with new foster parents in their double-storey townhouse in Healesville. Nancy and Schuster slept in a shared bedroom, which was located on the top floor of the townhouse. It was the height of the summer. In the middle of the night, Nancy woke up her foster father, Jackson Black, because she was too hot to sleep. Jackson tried to fix the problem by leaving the large window ajar next to Nancy and Schuster’s bunk. Jackson then told Nancy and Schuster not to play near the window as they could fall down and injure themselves.
The following day Nancy, who was five years old, was playing on the top bunk with Schuster, who was one year older. Nancy and Schuster began to physically tussle over their favourite tonka truck and were yelling quite loudly at each other. When Schuster let go of the truck, Nancy pulled it with such force that she overbalanced and smashed through the window and onto the concrete path outside the townhouse, while also sustaining deep cuts from the broken window glass that fell down on her. At the time of the fall, Nancy’s foster parents were in the back garden and did not hear the commotion between Nancy and Schuster until it was too late. As a result of her fall, Nancy also sustained serious spinal injuries.Additional Information:
Nancy Black, by her litigation guardian (i.e. a person who stands in the shoes of a child or young person in order to provide instructions to a lawyer in the matter) has filed a claim against Jackson Black in the Supreme Court of Victoria.
- you are a single judge sitting in the Supreme Court of Victoria;
- the only relevant precedents are the three cases summarised below.
You are required to:
- write a draft judgment in relation to Nancy’s claim for damages.
Your answer should:
- determine the precedential value of each of the previous decisions (i.e. whether the decision is binding, persuasive, not binding, distinguishable);
- on the basis of these previous decisions, set out whether you find that Jackson Black owed a duty of care to Nancy; and (if so) whether that duty has been breached in this case.
In your answer, do not apply any other case law or learning relating to the law of negligence that you may have acquired from studying the Law of Torts.
Harriet (by his litigation guardian) v Osbourne
High Court of Australia (1969)
Summary of Facts
James Harriet’s parents were attending a wedding in Sydney. James, who was four years old at the time, was being cared for by his aunt and uncle, Mary and Jack Osbourne. The Osbourne family lived by the side of a busy country road in the Hunter Valley in NSW. After a long game of hide-and-seek with his cousin, James was hungry and in need of refreshment. However, his parents had given him strict instructions to ask for permission before helping himself to food. He wandered outside to the front yard and called out to his aunt, Mary. At the time, Mary was on the opposite side of the road, but obscured from view. When she heard James call out, Mary responded, “I am over here, James”, but she did not see the oncoming vehicle from her position on the opposite side of the road. James proceeded to cross the road towards Mary and was subsequently struck by a vehicle driven by a man who was heavily intoxicated at the time. James suffered serious head injuries as a result. James, by his litigation guardian, sued the driver of the vehicle and Mary for breach of their duty of care to him. There was no dispute that the driver of the vehicle who struck James had been negligent. At first instance and on appeal to the Court of Appeal of the Supreme Court of New South Wales, the claim against Mary had failed. James appealed to the High Court of Australia on the question of whether Mary had also been negligent and thus liable to contribute to the damages awarded to him.
Jackson, Watson and Lowey JJ
The fact that Ms Osbourne was related to the plaintiff does not answer the question of whether she owed a duty of care to the child or whether such a duty was breached. Rather, these questions turn on the circumstances of the case and, in particular, the level of control exercised by Ms Osbourne over the child and whether this control exposed the child to harm. If Ms Osbourne had actively encouraged the child to cross the road, she would have been negligent. In doing so, she would both have exercised control over him and subjected him to danger. The calling action would both found a duty of care and constitute a breach of that duty. In this case, we acknowledge and accept the findings of the trial judge that the aunt had not, in fact, called or urged the child to cross the road. Nonetheless, we find that Ms Osbourne assumed responsibility for the welfare of the child in the absence of his parents. In addition, Ms Osbourne was aware that the child was likely to cross the road following her response to him. We conclude that, on the basis of these combined facts, Ms Osbourne owed a duty of care to Mr Harriet. This duty required Ms Osbourne to reasonably protect James from the foreseeable risk of injury. Her failure to check on his whereabouts following her response was less than reasonable. The risk of suffering harm while crossing a busy country road is not unforeseeable. We conclude therefore that Ms Osbourne was liable to contribute to the damages amount.
Voss and Taylor JJ (dissenting)
While it is conceivable that there will be a duty on a person into whose care a child has been placed, the law does not impose a general duty of care upon a relative simply because of a blood relationship. The moral duties of conscientious parenting do not as such provide the child with any cause of action when they are not, or badly, performed. However, it is equally important to recognise that the existence of a familial relationship confers no immunity from suit. Parents, relatives and strangers alike may become liable to a child if the child is led into danger by their actions. In the circumstances of this case, Ms Osbourne did not owe the child a duty of care at the time he called out to her, as she had not known of the danger facing the child. However, had Ms Osbourne beckoned the plaintiff to her, she would have come under a duty to take reasonable care for his safety in relation to any foreseeable danger to him which the crossing of the road would involve. On the facts before us, Ms Osbourne had not called the child to her and thus no duty of care arises. Just because the child had wandered out did not also make it foreseeable that the child would then also go on to cross the road.
The appeal should be dismissed.
Paxton v Ruffy (by her litigation guardian)
Court of Appeal of the Supreme Court of South Australia (2009)
Summary of Facts
Judith Paxton was staying in the top floor of a rented holiday unit with her daughter’s family over the Christmas break. At 5:15am on Boxing Day morning, Judith heard Otus Ruffy, her six-month old granddaughter, crying in the bedroom next door. Judith went in to comfort Otus as Otus’s mother had hinted the night before that she was keen to sleep in. Judith was unable to settle Otus and thought that she might be hungry. She lifted Otus out of the cot and proceeded to walk down the stairs to the kitchen area to heat up some milk. The stairwell leading to the kitchen was poorly lit. Judith did not turn on any lights for fear of waking others up, but held tightly on to the handrail and proceeded slowly down the stairs. While walking down the stairs carrying Otus in her arms, Judith tripped and fell down the stairwell. Otus suffered serious and permanent injuries as a result of Judith’s fall. Otus, by her litigation guardian, initiated a claim against Judith seeking damages for her injuries. Otus’s claim was initially upheld in the Supreme Court of South Australia. Judith appealed to the Court of Appeal of the Supreme Court of South Australia.
Judgment of Bozzolla and Prickly JJ
A critical feature of this case is that Ms Paxton took physical custody and control of the child when she carried Ms Ruffy, the plaintiff, from the room in which the infant had been sleeping. Once Ms Paxton took charge of the plaintiff in this way, the infant became entirely dependent on her grandmother for protection against injury. Whenever an adult carries an infant there is a foreseeable risk that the infant could be harmed in a myriad of ways. The likelihood of the adult falling and causing harm to the child is no doubt low, but as a matter of common experience household accidents involving falls are not unusual. In light of this, we find that Ms Paxton owed the plaintiff a duty to take reasonable care to protect Ms Ruffy from the foreseeable risk of injury arising while she was in Ms Paxton’s direct physical care and control. That same duty may well be imposed on a non-relative who voluntarily assumes responsibility for the care of an infant or child in a domestic situation. The existence of a duty of care is one thing; breach of the duty is another. At its simplest, the question of whether there has been a breach of the duty can be determined by asking whether a person in the defendant’s position would have contemplated the danger or the risk of harm and avoided acting as the defendant did. In applying this basic formulation, one must also consider a number of other relevant factors, including the social utility of the activity that created the risk of harm. Here, the conduct that created the risk of harm to the infant was designed to provide relief to the plaintiff’s mother. Ms Paxton’s decision to proceed down the staircase while carrying the plaintiff was in furtherance of this purpose. Domestic assistance of this kind has a high social utility: it goes to the very heart of what family members do for each other. A defendant may be found negligent even if he or she acts in good faith and takes precautions to guard against the relevant risk of harm. In this case, however, Ms Paxton not only appreciated the risk of a fall while she carried the child, she took sensible and appropriate actions to guard against such a risk by walking slowly and holding firmly on to the handrail. We do not find that Ms Paxton failed to exercise reasonable care for the plaintiff’s safety. The finding of negligence cannot stand.
Previous authorities have recognised that it is undesirable, from a normative perspective, for the law to intrude into the relationship between a parent and a child. The effect of imposing tortious liability on the parent or family carer for negligence is to entitle a child to sue his or her own parent or family member. This may seem distasteful, particularly if the parent or carer has attempted in good faith to carry out his or her responsibilities. Moreover, there would be alarming personal implications for parents if the moral duty of custodians of children to protect them from harm was converted into a legal duty. The circumstances of this case, where a grandmother was doing her best to care for a baby, illustrate the undesirability of the law imposing a duty of care on family members in circumstances such as was the case here.
Finlay (by her litigation guardian) v Bumpy
Supreme Court of the Australian Capital Territory (2012)
Summary of Facts
The plaintiff’s mother, Narelle Finlay, had been invited by friends to share some drinks at a local hotel. Narelle was keen to join them as she had recently been suffering from depression and needed a break from her kids. Narelle’s friend, Daisy Bumpy, knew that Narelle was feeling down and agreed to mind the plaintiff’s child, Leah Finlay, so Narelle could go out. Leah was then about three years old. Some hours after Narelle left, Daisy went out to cut some herbs for dinner and upon her return inside failed to shut the back door securely. This made it possible for the infant to gain access to the swimming pool outside. When Daisy discovered Leah, she was lying face down in the pool and was unconscious. Narelle arrived home at the time that Daisy was trying to revive Leah. Leah was later transferred to the hospital and remained in a coma for several months. When Leah recovered consciousness, the doctors found that her intellectual capacity was severely impaired as a result of the accident. Leah Finlay, by her litigation guardian, sued Daisy Bumpy in negligence and sought damages for her injuries and suffering.
Decision of Purcell J
The first question is whether the plaintiff was owed a duty of care in the totality of the circumstances of this case. This question turns on a range of factors, including the nature of the relationship which exists between the plaintiff and the defendant, the level of care and/or control exercised by the defendant over the plaintiff and whether the actions of the defendant have exposed the plaintiff to foreseeable risk. Applying these factors to the factual circumstances that existed on the day on which Leah was injured, I am satisfied that Ms Bumpy owed the child a duty of care. The duty to take care of Leah arose from the circumstances of time and place including the fact that Ms Bumpy had volunteered to take care of Leah. The fact that Ms Bumpy assumed the duty of care was doubtless a result of the fact that she was a friend of the plaintiff’s mother, but the latter fact was not the juridical source of the duty. Further, Ms Bumpy should have foreseen that her failure to close the door securely or otherwise to prevent the active little child from going to the pool unsupervised had a real potential to cause serious injury to the child. The propensity of small children fascinated by water and pools to go to them is well known. Accordingly, I conclude that Ms Bumpy’s conduct fell short of that imposed by the duty, and, as a result, Leah was injured.
I find for the plaintiff. I shall hear the parties on costs.
“The common law is not a formal garden. Like other gardens of the English tradition, it is not a place of manicured lawns. Only from a great height, can the logic, pattern and essential order of this garden be perceived. The judicial gardeners are busy. Every now and then they try to clean up a section of the garden. They pull out a few dead bushes. When this happens, some of those who knew the garden as it was get extremely angry. A few, of curmudgeonly disposition, go round muttering that the former state of things should be restored. Some who are upset, scream and shout at the gardeners. They denounce them as horticultural ‘activists’.”
Critically assess the issues raised in this passage using examples. In your answer, consider the nature of the common law system and the role of judges in this legal system.
Question THREE (15 Marks)
The legal profession is subject to specific professional conduct obligations.
Recently, the Brisbane firm AJ&Co which is acting for the Adani mining firm was in the news. Based on a leaked strategy document, the ABC revealed that the firm had a strategy to act as a ‘trained attack dog’ for Adani. The leaked strategy document also discussed ‘bankrupting individuals who unsuccessfully challenge Adani in court, using lawsuits to pressure the Queensland Government and social media “bias” as a tool to discredit decisionmakers’ as well as to ‘use the legal system to silence’ activists and commentators.
Do you believe these statements in the leaked strategy document raise ethical issues for the law firm? What potential conflicts could arise with the main professional conduct and/or ethical duties of Australian lawyers?