Reference no: EM13139555 , Length: 1100 Words
The use of relevant headings within the body of your answer is encouraged.
Relevant Law: Do not write a detailed explanation of the law under the "Relevant Law". Please provide only the 'key words' of the legal principle or rule from the case or legislation which will be used in your 'application of law' and indicate the relevant case names and Section numbers of the legislation correctly.
Issue 1: Does Van-Damme owe Tamara a duty of care?
• Duty of care - reasonable foreseeability: Donoghue v Stevenson (or similar case)
Control/vulnerability test: Swain v Waverley Municipal Council
Issue 2: Has Van-Damme breached his duty of care to Tamara?
• Breach of duty of care: Sections 9(1)(a)(b)(c) Civil Liability Act 2003 (Qld)
• Three balancing factors: Sections 9(2)(a)(b)(c) - CLA
• Cases: Nova Mink Ltd v Canada Airlines; Wyong Shire Council v Shirt; Bolton v Stone
Writing the law in brief would help you to not go over the maximum word limit.
Application of law: Please remember that the most important part of your assignment is the 'application of law to the facts' of the question. Make sure that you have discussed ALL the relevant principles of law comprehensively in the 'application' part of the answer.
Conclusion of your answer: Students may have 3 short conclusions -
Part (a) - one conclusion for negligence and one for Australian Consumer Law part of your answer.
Part (b) - one conclusion for vicarious liability.
The assignment must demonstrate the presentation, writing and literacy skills. The answers must be typed in Times New Roman font size 12.5 and double-spaced, should have the student's name, student number and tutorial time clearly visible. Pages should be numbered and stapled together (top left corner). Assignment cover need not be attached. Assignments must be handed in ' hard copy' on Week 12 as stated above. Late submission penalties will apply unless the student has an approved extension from the Course Convenor. Assignments will not be accepted via email or fax. Students should keep a copy of the assignment for themselves.
A detailed marking scheme will be available under the Assessment folder on Learning@gu. Students should scrutinise the scheme before submitting their assignment to ensure they have covered all relevant requirements.
Tamara Brown is a former celebrity who is contacted by Channel B Ltd (Channel B) to appear on their new TV series "Ice Dancing with the Fallen Stars". Tamara Smith signs a contract with Channel B Ltd. which requires Tamara to "comply with all reasonable instructions provided by the company or its employees".
The TV show involves 10 "celebrities" being paired with experienced figure skaters to perform routines in an ice skating rink on television. The public and celebrity judges vote for their favourite pair and the worse performing pair leave the show at the end of each week until the final two pairs "skate off" during the show's finale. The winning celebrity receives a $100,000 prize.
Tamara is paired up with former professional ice skater Van-Damme, two-time Olympic individual figure skating champion from France who has coached professional skaters around the world. Van-Damme is temporarily employed by Channel B for four months for $60,000 monthly salary. Van-Damme's duties under the contract with Channel B include: training Tamara in figure skating five days per week; devising the choreography for the routine; performing on the show each Sunday night; and attending promotional events. Both Tamara and Van-Damme agree to wear costumes provided by Channel B while appearing on the show.
Like Tamara, Van-Damme is determined to "cash in" on the show's success. He commences the manufacture and supply of the "French Flyer" in Australia, a lightweight figure skate (roller boot) which is designed to improve speed through the air when performing jumps. Unlike traditional skates (a leather boot and blade mounted to a hard sole and heel with screws), the "French Flyer" uses a rubber sourced from Malaysia rather than the hard sole and heel. The blade is then fused to the sole and heel with special industrial glue. Van-Damme wants Tamara to wear the "French Flyer" for maximum publicity.
Tamara and Van-Damme progress to the show's finale. The skates (which have a retail price of $149.99) are released for sale during the final week of the show. Prior to the skates' release, Tamara had been discussing with Van-Damme the possibility of doing the first "double throw jump" on the show as she believes that this will enable them to win the competition. The throw jump involves Van-Damme throwing Tamara into the air, Tamara then completing a double spin before landing on her right foot with her back facing the audience.
Van-Damme is uncomfortable with Tamara performing this jump as he does not believe that Tamara has the ability or technique to do it. During TV advertising for the show, Tamara says that she intends to perform the "double throw jump". Immediately after viewing the TV advertisement, Dean Torvill, a celebrity judge on the show and former professional skater, calls Tamara and warns her about the risks of performing the jump, including serious ankle, knee and leg injuries. Dean says "you're doing OK, but you need another one month of intense training at least before you can regularly perform the double throw jump!"
Unperturbed Tamara makes an agreement with Van-Damme. She will wear the "French Flyer" skates if they attempt the "double throw jump" during the show's finale. Van-Damme reluctantly agrees. Tamara practises with the new skates during two half day training sessions. Tamara and Van-Damme try the double throw jump eight times. On four occasions Tamara is successful and on four occasions she either does not complete a double spin or stumbles after completing a double spin. Van-Damme does not inform Channel B that Tamara will be wearing the "French Flyer" skates during the show's finale.
Tamara and Van-Damme attempt the double throw jump during the show's finale. Unfortunately Tamara only completes one spin before her front left leg lands on the ice. At that same time, the glue attaching the boot to the blade shatters, causing the blade to rip through Tamara's foot and causing her to fall face first on the ice. She suffers a broken ankle, a broken leg, laceration to her face and concussion as a result of the incident. Testing of the skating boot worn by Tamara indicates that the glue used by Van-Damme becomes extremely brittle if subjected to very low temperatures over an extended period. Not surprisingly Tamara does not win "Ice Dancing with the Fallen Stars" (albeit this incident generated international publicity and fantastic ratings for Channel B). As a result of the incident, Tamara is unable to walk for 6 months and cannot work. During this period she develops an online gambling habit and loses $25,000 on Texas Holdem poker.
Advise Tamara (using ILAC) whether she can sue:
(a) Van-Damme under the tort of negligence and the Australian Consumer Law (Cth). (13 marks)
(b) Channel B under the principles of vicarious liability. (2 marks)
In your answers, DO NOT discuss liability under the law of contract or sections 18-29 of the Australian Consumer Law (Cth).