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Day 77

Seventy-seven days?! Is that right. For the past three weeks we’ve had one sort of assessment or another each week.  We got our contracts test back, we had another assignment for contracts which was a review and redraft of a contract (which was marked and handed back to us the day we handed in our first assignment for our torts class. Torts are about protection of personal interests. The assignment was a case analysis and then a ‘critical analysis’ of a judgement referenced within the judgement.

The case was a bout a 16-year-old who wandered off the grounds of an Australia day celebration to a nearby riverbank. He saw kids jumping off branches of trees and swinging off of a rope from the branches. The plaintiff was a diver, and he jumped off the branches a few times before using the rope. The first time he used the rope, he tried a backflip and unfortunately landed in a more shallow area of the river and suffered significant injuries– C7 Quadriplegia. He tried to sue the Council in negligence.

Now, negligence is best understood as a multiple carriage train.


Train of negligence!

The first carriage is “duty of care,” the second is “breach of duty,” third is “causation” and fourth is “defenses.”  Within the “carriages,” there are additional elements, seats, if you will, that need to be established in order for it to be a complete carriage. (The Seinfield clip below is a somewhat distorted attempt at satisfying elements of breach of duty).

With me so far?

So, the analysis goes…

Did the defendant council owe the plaintiff a duty of care? If so, what was the duty of care owed? — We can’t determine whether there was a breach of duty, if we don’t know what the duty is!

***Sidebar: throughout the first lecture we had on duty (negligence is a 4-lecture topic; one for each ‘carriage’), I had a ridiculous smirk plastered to my face because of a particular episode of Friends and a former co-worker who had to excuse herself from a staff meeting because we were discussing the nature of our “duties” …***

Anyways, back to negligence. So,

1) was a duty of care owed? If so,

2) what was the duty of care owed?

3) Under what circumstances was the duty owed?

There are established legal relationships whereby a duty is owed. An employer to an employee, and land occupier to its occupant, a driver to another driver, etc. in this case, it was difficult to establish the relationship because the land that the tree was on wasn’t necessary Council land. It was owned by the crown.  Not a very strong footing to begin with… but in law, *everything* is up for interpretation.

I won’t leave you in suspense. The judgement was that even though the council did owe a duty of care to the plaintiff, the duty owed was a “duty of reasonable care.” As such, it was found that it was not reasonable for the council to be held responsible for protecting an individual from their own conduct among other things. The case was “Streller v Albury City Council [2012] NSWSC 729.” You can read a more detailed summary here. If you want to read the entire case and judgement (10 pages), you can read it here. And if you’re really keen, you can email me or comment below and I’ll send you my assignment once it’s graded. Depending on the grade of course 😉

Sucks for the plaintiff who suffered injuries while others didn’t, but I agree with the judgement. *pause for gasps of judgement*

I have yet to be tested...

Sheldon likes trains, too!!

Look, is it fair that the one kid (of several kids), who was swinging from the rope ended up falling in a more shallow area of the river? No. But law isn’t about fairness and frankly, neither is life. It’s about rules. I’ve lived the life thinking good things were owed to me because I’m a good person, and that’s not quite how the universe works. We get the fruits of our actions, not our intentions. The relevant actions. Sowing in one avenue of our life isn’t going to help us reap rewards in another avenue of our life.For example, if I hit all the wrong points on my assignment (regardless of my intention and the amount of work I put into it), it’s still wrong. Hopefully that’s not the case, pretty sure that’s not the case. I’ve yet to get that assignment back, but we were learning about negligence as we were doing this assignment so there were moments during last week’s lecture when I realized, “crap, I should’ve mentioned that in the assignment. ” So fingers crossed. I’ll need as much of that 20% as I can– especially when the remaining 80% is coming from the final exam we have in THREE WEEKS.

Next assignment is due this Thursday. I’ll explain the assignment once it’s handed in. I’m thoroughly enjoying it whilst wanting to slam my head against the wall repeatedly and not in some sadomasochistic inflicting pain or sexual head-board banging kind of way. It’s a complete state of flux between love and hate. Or love and pain. I’m not sure. Maybe I am masochistic? I dislike that I’m being assessed on so many things in such little time, but I love the process of it.. I love what I’m learning. It’s seeping into the crevices of my soul and spirit. When I hear someone say “promise,” the first thing that comes to mind is, “that’s not binding…” and I ramble off (internally… well, most of the time) the requirements of a contract and “what constitutes a contract?”

Neurons firing. Synapses.. doing whatever it is they do. It’s pretty bada$$. Let’s just hope it’s all the *right* kind of sowing to reap the HD’s.  On that note… better get back to it! Woop woop.  Oh yeah, I’m pretty stimulated 😉

Here’s that Seinfeld clip: