Reference no: EM13904841

Question 1

Lance was riding his bike along a pathway that followed the edge of the Parramatta River in Western Sydney. Lance was an experienced cyclist. Last Saturday he was towards the end of a 30 km ride, which he was undertaking with his wife, Cadella. The path that Lance was riding on included a road crossing, at a street called Macquarie Avenue. The pathway ran downhill as it approached Macquarie Avenue. Lance braked as he got to the bottom of the hill and looked left and right to see if there were any cars on the road.

As there was no traffic, he proceeded across Macquarie Avenue to the pathway leading into the park on the other side of the road. It so happened that Parramatta Local Council had strung a chain across the pathway at the entrance to the park on the other side of the road. Lance did not see the chain until he was about 10-12 feet away from it. He braked, but not in sufficient time to stop before colliding with the chain. He skidded, and the front wheel of his bike caught in the chain. He was catapulted over the handlebars, landing on his head.

Lance was unable to estimate the speed that he was going at the point of collision with the chain. He said he braked as he came to the bottom of the hill. Lance had cycled this particular route the previous Sunday, but there was no chain across the entrance to the park at that time. The chain had been placed across the pathway two days before the accident to stop cars from entering the park illegally. It was painted grey, the same colour as the footpath. Lance understands that part of being an experienced cyclist was appreciating the environment in which the ride was taking place.

An aspect of that appreciation was recognising that conditions sometimes change. Lance also understood that if he had been riding "a bit slower" the chances were he would have "been able to stop before the chain". A couple of minutes later, Cadella arrived at the scene of the accident to see her husband sprawled on the ground. The scene was horrific. Her husband was on the ground unconscious, and he had blood pouring out of a deep cut in his head. Lance was in hospital for a number of weeks after the accident, and it was only after the first week that Cadella thought he was going to survive. As a result, Cadella suffered nervous shock.

Explain what action or actions Lance and Cadella could bring against Parramatta Council. Do not discuss damages.

Question 2

Andrew always gets his car repaired at Smith's Auto. He has been going there for 7 years and takes his car there for repairs and service about twice a year. As he enters the door of Smiths' there is a sign on the wall behind the counter that says, ‘All vehicles are accepted for repair subject to the terms and conditions appearing in our invoice'. The sign is on white paper (A4) with Black writing, next to it are numerous advertisements for products sold at Smith's auto. Andrew never read the sign, he always dropped off his car on his way to work and was in a hurry.

When he returned to pick up his car the attendant would hand him an ‘invoice' to sign. This had his name on it, the details of the car and the work done. The invoice stated:

The customer acknowledges that the agreed repair work has been satisfactorily performed.

Smith's Auto regrets that no responsibility can be accepted for damage or loss caused to the customer's cars by fire, theft or otherwise.

On the occasion in question Andrew left his car for some repair work to be done and followed the usual routine set out above. When he returned to pick it up the next morning he signed the invoice as above and went out into the yard to collect his car. To his shock he found that the GPS navigation system fitted to the car was missing and the car clearly showed signs of being in an accident.

The evidence shows that overnight thieves had broken into Smith's Auto and stolen the GPS system from the car. Andrew's car was not locked, however, Smith's Auto was locked and the alarm was on but the thieves managed to disarm the alarm system and get past the locks: it was alleged it was an inside job but this could not be proven.

In addition, during the previous day the manager needed to go to a meeting. The car yard was full of cars that day that were in for repairs and he could not get his own car out without having to move many cars. Andrew's car was over near the curb so he decided to take it to get to his meeting. By this time the repair work had been done and the manager thought it would be good to see how it was running before Andrew picked it up. He drove the car to his meeting and parked it outside the cafe where the meeting was being held.
While at the meeting someone ran into the car causing damage to the rear of the car. They then drove off and were never identified.
Andrew seeks your advice as to whether Smith would be protected by the clauses in the invoice if Andrew were to take action against Smith's Auto. Answer this question by reference to general principles of common law. Do not consider any statutory provisions you might think relevant.