TORTS

These problems and the respective questions are based on Modules 1 and 2 and reading Material. Please ensure that you have read the recommended reading material contained on the blackboard. Students are required to have read the Modules and its required reading before commencing this assignment. All answers to questions cover the materials contained in this material. When answering the questions please indicate the facts or assumptions being relied upon.

At the end of the assignment students should provide a bibliography stating all cases and material read for this assignment

This assignment is worth 30% of a student's overall mark for the subject.

The skills that are relevant in the assessment of this assignment are:

1. The ability to identify from the facts the relevant legal issues

2. To describe the relevant legal concepts and principles by reference to the judgments in the cases studied.

3. To arrive at a possible conclusion in relation to legal liability of the various parties on the basis of applying the legal concepts and principles to that fact situation.

4. The identification of a possible management response, having regard to the avoidance of the issues of liability identified.

Requirements to submit:

1. On-campus students must submit the assignment in hard copy and turnitin.

2. Off-campus students must submit turnitin but only from the Swinburne e-mail account

Word Guideline 3000 to 4000 words

PROBLEM

Read the following;

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2014/663.html?stem=0&synonyms=0&query=title(Matthews%20and%

Summary Of the

1 At 11:45 am on 7 February 2009, a section of power line known as the Valley Span conductor located at Kilmore East broke and, upon striking the ground, ignited a bushfire which spread first south-east and then to the north-west.

2 At the time of ignition, weather conditions were extreme. The temperature was around 40°C, humidity was below 5 % and a north to north-west wind was gusting to around 80 kilometres per hour.

3 The fire ran south to south-east with the wind. It jumped the Hume Highway and spread towards Mount Disappointment with long distance spot fires occurring at Wallaby Creek, Humevale and Strathewen, St Andrews, Steels Creek, Dixons Creek, Yarra Glen and the Healesville area.

4 Later in the day, there was a south-westerly wind change causing the eastern flank of the fire to become the main fire front. The fire then engulfed Kinglake, Kinglake West, Clonbinane, Steels Creek, Chum Creek and Strathewen before progressing towards Flowerdale, Hazeldene, Castella and Glenburn.

5 The fire travelled as far south-east as Yarra Glen, as far east as the Acheron Way and as far north as Strath Creek.

6 The extent of the fire is depicted on the map below, which was produced by the 2009 Victorian Bushfires Royal Commission.[1]

7 In the course of the conflagration, 119 people died, more than 1,000 suffered serious injury, and approximately 1,772 homes and properties were destroyed or damaged.

8 The plaintiff has brought this proceeding on her own behalf and on behalf of that class of people who were either injured or suffered the death of persons upon whom they were dependent, or suffered property damage or economic loss in consequence of the fire.

9 The claim is brought against the owner and operator of the power line ( AusNet Electricity Services Pty Ltd, formerly SPI Electricity Pty Ltd, and referred to as ‘SPI' in this judgment), a maintenance contractor charged with carrying out a periodic inspection of the power line (referred to as ‘UAM' in this judgment) and various entities of the State of Victoria variously charged with the management of forest lands, the fighting of fires, and the policing of emergencies (‘the State parties').

10 After a trial lasting some 208 days before J Forrest J, at which the causes of the fire and questions of legal responsibility for the damage resulting from it were fiercely contested, the proceeding has provisionally settled for a sum, inclusive of costs, of just under $500 million.

There are various potential claims from persons who have suffered damage.

Damages have included

I. Houses being burnt down

II. Numerous persons suffering hospitalisation and personal injuries and claims of relatives for deaths

III. Businesses that have had to close as they could not operate due to the dangerous circumstances and closeness to the fire.

QUESTIONS

(a) What is a class action and what relevance do class actions have in engineers planning to avoid claims

(b) Identify the person or groups of people referred to in the case le that could have a claim damages at law against ( AusNet Electricity Services Pty Ltd, formerly SPI Electricity Pty Ltd, and referred to as ‘SPI' in this judgment), a maintenance contractor charged with carrying out a periodic inspection of the power line (referred to as ‘UAM'

(2) What is the basis of attributing any liability for the damage arising from the fire to( AusNet Electricity Services Pty Ltd, formerly SPI Electricity Pty Ltd, and referred to as ‘SPI' in this judgment), and what part of the libility should fall to the maintenance contractor charged with carrying out a periodic inspection of the power line (referred to as ‘UAM'

(3) in the case where there is a legal liability what are the limits imposed and recovery in respect of the various classes of persons referred to above to whom the damage was caused .

4. Having regard to the problems experienced what procedures would you put into place to limit exposure to claim of negligence. Refer to the principles of law as applied in the case and use the examples mentioned in the cases. Does compliance with current standards bar successful claims for negligence

RECOMMENDED READINGS

Learning Material Course Documents all detailed references to cases are in the learning material

(1) Woolcock Street Investments V CDG
(2) BurniePort Authority V General Jones
(3) Johnston Tiles V Esso
(4) Leighton Contractors V Callinan
(5) Sydney Water Corporation v Turano [2009] HCA 42 (13 October 2009)

Attachment:- CONSTRUCTION LAW.rar