RMIT Classification: Trusted

Week 2: Forms of liability & Tort of Negligence

1. Binh (the employer) wanted to hire Anh to operate a delivery van. Before allowing Anh to operate the van, Binh
was required to check Anh’s prior job references and to undergo a physical examination by a medical doctor, and
to provide Anh with extensive training in motor vehicle safety. The doctor who examined Anh, discovered that he
had a sleep disorder that caused him to spontaneously fall asleep and that Anh had on several occasions fallen
asleep while driving. The doctor informed the employer of the sleep disorder of the driver. Because Binh was
short of staff and desperately needed someone to start working for him, he disregarded the doctor’s report and
hired Anh. Binh then provided him with a daily delivery route and paid him a monthly salary. While Anh was
making deliveries for Binh he fell asleep, the van left the road and struck a pedestrian Hang, who suffered severe
injuries as a result. Hang filed a lawsuit for the damages as a result of the injuries sustained in the accident against
Anh and Binh.

Required: Advise Hang about the claims that she can make. Use the IRAC method to solve this legal
problem.

2. Drevo Pty Ltd is a tree cutting company. It has been operating in Melbourne for over 30 years and its services
include tree cutting, tree removal and maintenance to residents of Northern suburbs. Drevo employs thirty cutters,
also known as arborists. One of their new employees is Bruno. Bruno has recently graduated from a high school
and has joined the company as a trainee. He often goes to sites to watch how experienced tree cutters work. In
addition, his training includes performing tree cutting strictly under supervision of an experienced arborist. He is
yet to perform this.

On Thursday afternoon, Alma, a 70 year-old lady from Northern suburbs contacted Drevo for tree cutting work to
be conducted next day. Alma mentioned that a tree of concern is 20 meters long and grows near a fence between
Alma’s and her neighbour’s houses. The tree is inhabited (occupied) by a family of possums. Possums are
nocturnal animals and during night time they cause noises when moving inside and on the rooftop of Alma’s
house. Alma has been suffering from sleeping problems because of the noise disturbance caused by these
possums.
Friday was a very busy day for the company and all tree cutters had been already assigned to other tasks and there
were no experienced personnel available. Since Alma was desperate for help, Drevo felt pressured to assign Bruno
to perform a task of tree cutting in Alma’s front yard without supervision. Tree cutters work with equipment such
as chainsaws, ladders, climbing equipment and safety gear such as safety glasses, work boots, ear protection and a
helmet.
After arriving to Alma’s residence, Bruno walked right up to the tree and made a single felling cut, right into the
trunk of the tree and started chain-sawing until the tree began to fall. The tree fell down on a neighbour’s roof
crashing the roof and causing significant damage to the neighbour’s car. When Bruno attempted to stop the fall,
one of tree branches penetrated his right eye leaving him instantly blinded in one eye. Bruno did not wear safety
glasses because he could not find a pair before his dispatch. It was later revealed that the company informed
Bruno about the importance of wearing safety glasses and he was not allowed to start working without proper
equipment.
Unbeknown (not known) to Bruno, in order to cut a 20 meter long tree, a professional tree cutter/arborist makes a
notch cut on a tree and makes this cut on the side of the tree that faces the direction into which they want the tree
to fall. Then, an experienced cutter makes the felling cut, leaving a hinge. The hinge holds the tree to the stump
during most of the tree’s fall, and it guides the tree in the intended direction. What is more, this task is usually
performed by a group of arborists. Furthermore, as an employer Drevo Pty Ltd is obliged to ensure that all staff
are adequately trained to do their jobs safely and a trainer is not allowed to perform a tree cutting job on his own
without supervision and proper safety equipment.
Alma’s neighbour is distressed by the physical damage to their roof and the car. Bruno is also devastated by loss
of vision in his eye.

Please discuss:

- Who owed whom a duty of care? and why?

1. Tom who lived in a densely forested neighbourhood, decided to have a backyard barbeque party. It was a hot day
and there had been no rain in the area for over a month. Everything was bone-dry and water restrictions were in
effect. Tom was in a hurry. As in the past, he over-soaked the charcoal briquettes with lighter fluid to make sure
they would ignite and burn quickly. From previous experience, Tom knew that sometimes the flames leap 8 feet
or more when he lit the charcoal.
Nonetheless, Tom proceeded to light the coals. Unfortunately, he had placed the barbecue beneath an old fir tree
in an attempt to get some shade from the summer heat. When Tom lit the barbecue, there was an explosion from
the barbecue grill, and then flames shot up, ignited the fir tree and started a forest fire.
The fire destroyed Tom’s neighbour’s house which was several hundred meters further away, and 50 hectares of
parkland. Several people walking in the park suffered personal injuries.
Required: Discuss whether Tom owed a duty of care to:

a) his neighbour in respect to their home; and

Use the IRAC method to solve this legal problem.

2. Maria owned a pub. She knew that several biker gangs came to the pub quite often. From her experience tending
the pub and information received from police, she knew that some of gang members were aggressive and had
attacked people for no reason in the past. To prevent violence happening in her pub, she placed a sign at the
entrance prohibiting any biker gang members from entering the pub while wearing their gang “colors”; that is
insignia (symbol/emblem) of their gangs. Based on her experience Maria believed that gangs without their colors
were less prone to violence and she was right.
One day a couple of gang members pushed their way into the pub ignoring the sign. They all were wearing their
colors. Although Maria saw their colors, she still allowed them to enter and stay for only one drink. They later
moved towards the back of the pub, Maria thought they were leaving. In fact, they followed a customer Karl to
the men’s bathroom, where, without any provocation from the customer, they savagely beat him. As a result of
this attack, Karl suffered massive injuries and forced to undergo multiple surgeries and eye re-construction.
Required: Discuss whether Maria owned Karl a duty of care? Use the IRAC method to solve this legal
problem.

3. Carolyn was driving to visit her fiancé who was staying in Smartville, about fifty miles away from her home town.
Before she left, her friend Frieda asked her to deliver a small package to someone in Smartville. The package
contained a bottle of caustic chemical (acid). Because she was afraid that Carolyn would refuse to carry it if she
knew its content, Frieda wrapped the package in a brown paper and did not tell Carolyn what was in it. Carolyn
placed the package in the glove compartment of her car and began driving to Smartville. Along the way, she saw
her old school friend Harold hitchhiking (walking, trying to get a ride) by the side of the road, Carolyn offered
him a ride in her car. While Harold was sitting in the front seat beside Carolyn, the package in the glove
compartment started to leak and dripping on Harold’s trousers. Without saying anything to Carolyn, Harold
opened the glove compartment and removed the wet package. As soon as the chemical came into contact with
Harold’s hands, it burnt his skin severely.
Required: Does Carolyn owe Harold a D.O.C? Use the IRAC method to solve this legal problem.