Mock Trial Competition Case Materials 2017 Round 2

Transcription

1 Case Materials 2017 Round 2 The Law Society of Western Australia Level 4, 160 St Georges Terrace, Perth WA 6000 Postal: PO Box Z5345, Perth WA 6831 or DX 173 Perth Phone: (08) Fax: (08) info@lawsocietywa.asn.au Website: lawsocietywa.asn.au

2 Fowler v Fountain Lakes Shopping Centre Pty Ltd Case Summary This is civil matter in which the plaintiff, Stormie Fowler, is suing to recover damages from the owner and occupier of a shopping centre. The plaintiff alleges that: he received serious injuries when he tripped and fell in a trench when moving through the Fountain Lakes Centre Car Park; and that the owner of the shopping centre is liable to him pursuant to the provisions of the Occupiers Liability Act 1985 (WA). The defendant denies that it is liable because the trench did not pose a danger, and if it did then it had taken sufficient precautions to warn people going through the Fountain Lakes Shopping Centre Car Park of any danger the trench may have posed. The defendant also says that Stormie contributed to his own injuries by not keeping a proper look out. The issues, therefore, are: whether the defendant is liable; and whether Stormie contributed to his injuries by having acted negligently in the way he traversed the car park; and if so, to what extent. The plaintiff and defendant teams will receive the following: 1. Legal notes 2. Excerpt from Statement of Claim 3. Excerpt from Defence 4. Statement of the Plaintiff Stormie Fowler 5. Statement of the Plaintiff's witness Klara Free 6. Statement of Joel Skarsgaard 7. Statement of Lettice Butterfield Shaw 8. Map of Fountain Lakes Shopping Centre* The above outline is the order of appearance. *The map is to be tendered into evidence by agreement. The Law Society of Western Australia Page 1 of 17

3 LEGAL NOTES The issues The issues in this mock trial relate only to liability. Sometimes in personal injury cases the parties will come to an agreement as to damages (that is, how much the Plaintiff s claim is worth) so that the only issue at trial is the liability of the Defendant and whether the Plaintiff s actions contributed to his or her own injuries (that is, whether there has been contributory negligence ). Pleadings Because the only issue in this mock trial is liability, only excerpts from the Statement of Claim and Defence have been provided. Please note: In the Defence some facts are admitted so it is not necessary to prove them at the trial; but they can be referred to in summing up. the adequacy or otherwise of the pleadings is not the issue at trial; students focus should be on proper examination of witnesses, good cross examination and correct objection to objectionable evidence. Legal material The owner of premises has a duty to do what is reasonably necessary to ensure that persons entering the owner s premises are not harmed by anything on the premises which the owner ought reasonably know could cause injury. This duty in Western Australia is imposed by the Occupiers Liability Act 1985 (WA). In this case, the Defendant says that it took all steps reasonably necessary to ensure that persons entering the Fountain Lakes Shopping Centre car park were not harmed. However, the Defendant also says that the Plaintiff contributed to his injuries through his own negligent actions and if the Defendant is found liable, the extent of the Defendant s liability should be reduced proportionate to the degree of liability apportioned to the Plaintiff. For example: Damages are agreed in a case at $100,000. The Court finds the Defendant liable but also finds that the Plaintiff contributed to his injuries to the extent of 25%. The amount payable by the Defendant is reduced by 25% to $75,000. Section 5 of the Occupiers Liability Act 1985 (WA) provides that: 5. Duty of care of occupier (1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger. The Law Society of Western Australia Page 2 of 17

4 (2) The duty of care referred to in subsection (1) does not apply in respect of risks willingly assumed by the person entering on the premises but in that case the occupier of premises owes a duty to the person not to create a danger with the deliberate intent of doing harm or damage to the person or his property and not to act with reckless disregard of the presence of the person or his property. (3) A person who is on premises with the intention of committing, or in the commission of, an offence punishable by imprisonment is owed only the duty of care referred to in subsection (2). (4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to (a) (b) (c) (d) (e) (f) (g) the gravity and likelihood of the probable injury; the circumstances of the entry onto the premises; the nature of the premises; the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; the age of the person entering the premises; the ability of the person entering the premises to appreciate the danger; and the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. Subsections (2) and (3) are not relevant to the issues in this mock trial. Generally speaking the duty imposed by the Occupiers Liability Act is the same as that imposed by the common law, which has been described this way: In Council for the Shire of Wyong v Shirt Mason J said at 47 48: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." The Law Society of Western Australia Page 3 of 17

5 Contributory negligence Section 4 (1) of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 provides that: 4. Contributory negligence, Court may reduce plaintiff s damages (1) Whenever in any claim for damages founded on an allegation of negligence the Court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant s act or might otherwise be held guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the Court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the Court thinks just in accordance with the degree of negligence attributable to the plaintiff. The Law Society of Western Australia Page 4 of 17

6 IN THE DISTRICT COURT OF WESTERN AUSTRALIA HELD AT PERTH BETWEEN STORMIE FOWLER No of 2017 Plaintiff AND FOUNTAIN LAKES SHOPPING CENTRE PTY LTD Defendant STATEMENT OF CLAIM Date of Document: 4 March 2017 Filed on Behalf of: The Plaintiff Date of Filing: 4 March 2017 Prepared by: Telephone: Raine, Snow & Hales Facsimile: Solicitors Reference No: SS Stock Road Sarah Hales MELVILLE WA The Plaintiff was born on 3 January 1999 and as at 7 June 2016 was a final year student at the Fountain Lakes High School. 2. The Defendant is a corporation registered in Western Australia. 3. At all material times the Defendant was the owner, occupier and had control of the Fountain Lakes Shopping Centre situated at the corner of Thomas Road and Bruce Road in the State of Western Australia (the Shopping Centre ). 4. The Shopping Centre comprised a car park situated on the northern side of the Shopping Centre ( the Car Park ). 5. At all material times the Car Park had two vehicle entrances from Bruce Road between which there was an area of grass over which pedestrians could gain unobstructed access to the Car Park. 6. On 7 June 2016 at approximately 9 pm the Plaintiff was going to his home and ran into the Car Park via the grassed area bordering Thomas Bruce Road and as he did so, he fell into a trench dug across the width of the Car Park and sustained serious injuries ( the Accident ). 7. The trench was 10cm wide and 50cm deep. 8. The Accident was caused by the negligence of the Defendant, its employees, agents and servants. The Law Society of Western Australia Page 5 of 17

7 Particulars of Negligence a. The Defendant by its servants or agents had cut a trench across the width of the Car Park ( the trench ); b. The trench was not visible to any person entering the Car Park at night by reason of: i. the trench s small width: and ii. because at night the Car Park lights (other than the entrance lights) would make it difficult to see any obstruction on the ground; and iii. the lights to the Car Park entrance were not working so that the trench was obscured from the view of anyone entering the car park over the grassed area. c. The Defendant by its servants or agents failed to warn or adequately warn anyone entering the Car Park of the existence of the trench. 9. Further and in the alternative, the Accident was caused by the Defendant s breach of Section 5 of the Occupiers Liability Act 1985 (WA). As occupier of the Shopping Centre the Defendant failed to take reasonable care to ensure that persons entering the Car Park and in particular the plaintiff would not suffer injury or damage by reason of the danger on the premises, namely the trench across the Car Park. Particulars of Breach of Section 5 of the Occupiers Liability Act 1985 The Plaintiff repeats paragraph 8 (a), (b) and (c) of this Statement of Claim. 10. As a result of the Accident the plaintiff suffered injuries, loss, pain and discomfort and has incurred and will in future incur medical and other expenses. [The portion of the Statement of Claim dealing with loss and damage is omitted for this Mock Trial] Sarah Hales... COUNSEL The Law Society of Western Australia Page 6 of 17

8 IN THE DISTRICT COURT OF WESTERN AUSTRALIA HELD AT PERTH BETWEEN STORMIE FOWLER No of 2017 Plaintiff AND FOUNTAIN LAKES SHOPPING CENTRE PTY LTD Defendant DEFENCE Date of Document: 21 March 2017 Filed on Behalf of: The Defendant Date of Filing: 21 March 2017 Prepared by: Telephone: Cheesewright and Vine Facsimile: Solicitors Reference No: SS Botrytis Road, Bree Cheesewright PERTH WA The Defendant admits paragraphs 1 to 5 of the Statement of Claim. 2. The Defendant denies each and every allegation in paragraphs 6 to 10 of the Statement of Claim and denies the Plaintiff was injured as alleged or at all and denies any negligence by it or breach of the Occupiers Liability Act (WA) If, which is denied, the Plaintiff was injured at the Fountain Lakes Shopping Centre Car Park on 7 June 2012, then the Defendant says the Defendant discharged its duty of care to the Plaintiff. Particulars a. The trench was only 10 cm wide and not sufficient to cause a fall; b. Immediately adjacent to the trench in front of each of the two vehicle entrances was a sign with large words saying DANGER; c. Immediately adjacent to the trench at equal distance from each end was a red fluorescent witch s hat approximately 50 cm tall and on which was secured a yellow flashing light; d. The entire car park was illuminated by lighting. The Law Society of Western Australia Page 7 of 17

9 4. Further, or in the alternative, the Defendant says that if the Plaintiff was injured, which is denied, then the Plaintiff's injuries were solely caused or contributed to by the negligence of the Plaintiff and the Plaintiff failed to keep a proper lookout and failed to take any or any adequate care for his own safety in the circumstances. Particulars of Contributory Negligence a. The Defendant repeats paragraphs 3 (a) to (d) of this Defence; b. The Plaintiff was running and was not looking where he was going; c. The Plaintiff ought to have been walking not running; d. The Plaintiff ought to have observed the red fluorescent witch s hat and the yellow flashing light; e. The Plaintiff ought to have observed the trench which was visible and illuminated by 6 lights in the Car Park. 5. The Defendant denies that the Plaintiff has suffered any loss as alleged and denies that the Plaintiff is entitled to any relief as claimed and denies the Plaintiff is entitled to any relief at all. Bree Cheesewright... COUNSEL The Law Society of Western Australia Page 8 of 17

10 STATEMENT OF STORMIE FOWLER DATED 1. STORMIE FOWLER, student of 23 Kelly Street, Fountain Lakes states: 2. I am currently repeating my final year at Fountain Lakes High School. I hope to go to university next year. Last year I suffered injuries and was unable to sit for my TEE. 3. On 7 June 2016 at about 9 pm I was walking home with a group of my friends. We had been at the High School preparing the Auditorium for the annual art exhibition. I had been at school all day. We were walking down Bruce Road in a westerly direction towards Fountain Lakes Shopping Centre. We were on the northern side of Bruce Road. 4. We were talking about D*Face. I had been told by someone that the famous street artist known as D*Face was going to do some stuff at the Fountain Lakes Shopping Centre that night. 5. D*Face was rumoured to be a Year 10 girl at our school but no-one knew who she was. 6. My house is in Kelly Street, Fountain Lakes, which comes off Thomas Road 200 metres south east of the Fountain Lakes Shopping Centre. 7. As we were walking down Bruce Road I suddenly remembered that I had to be home by 9 pm to help my father move some stuff. 8. I told the others that I needed to get home quickly and started to jog down Bruce Road. I always cut through the Shopping Centre car park and then down the walk way into Vista Close. 9. As I turned into the car park I began to run quite fast. 10. Neither of the lights at the front or northern most end of the car park was working. They hadn t been working for some time. But the other lights were working. This made it hard to see because the lights were shining into my eyes. 11. I did not see any warning lights. I saw no signs warning me of anything and do not recall the accident. 12. All I remember is running into the car park and then waking up in hospital. 13. The clock on the wall at the hospital said it was 2pm. My parents were there. My Dad joked that I would do anything to get out of work. I guess he was just relieved that I had regained consciousness. I am told that I was unconscious for 17 hours. 14. I was in a lot of pain; I had a broken right collar bone and a broken right leg. I had also badly torn cartilage in my right knee. I had bruising all down my face, particularly the right hand side and a broken nose. The Law Society of Western Australia Page 9 of 17

11 15. I was in hospital for 6 weeks and could not return to school for 3 months. I missed so much school that I could not sit for my TEE. The Law Society of Western Australia Page 10 of 17

12 STATEMENT OF KLARA FREE Dated 1. KLARA FREE, student of 4 Fairway Drive, Fountain Lakes, states: 2. I am a first year student at Curtin University as I am doing my Bachelor of Arts. I am 18 years of age. 3. On 7 June 2016 at about 9 pm I was with a group of friends from High School. We were walking down Bruce Road. 4. Our group, which included Stormie Fowler, were all in the Visual Arts class at school. 5. Fountain Lakes High School is known for its emphasis on art. It was rumoured last year that a girl in Year 10 at Fountain Lakes High is the street artist known as D*Face. I am a great admirer of D*Face s work, because of its original composition and use of saturated colour. All the kids at the school wanted to know the identity of D*Face. What D*Face does is not graffiti. It is true art. We still don t know who D*Face is. 6. At about 3pm on 7 June I had left the school and gone home. In order to get to Ellen Drive I needed to walk down Bruce Road past Thomas Road and then turn right into Ellen Drive. 7. I left Stormie and a group of others working on the art exhibition at the school. Walking home past the Fountain Lakes Shopping Centre car park I noticed some guys with a digging type machine digging a trench in the car park. I noticed that there was a van nearby with the words Fountain Lakes Shopping Centre Maintenance written on it. 8. Later, about 5pm, I returned to the school to help the others complete setting up for the exhibition. On my way back to the school I again walked past the Shopping Centre car park. I saw that the digging machine and the van had gone. A narrow trench had been dug across the car park. 9. I am a pretty good computer artist and I have designed a map of the car park. I now produce the map. 10. Just before 9 pm there was a group of us year 12 students on our way home. We were walking down Bruce Road. 11. It was quite dark. We were talking about finding out who D*Face is. 12. There was no one else on the road except someone who rode past us very fast on a bicycle. 13. Then Stormie told us that he needed to get home in a hurry and was going to run home. 14. I said: see yah Stormie and continued talking to my friends. It was then that I remembered the trench. The Law Society of Western Australia Page 11 of 17

13 15. I said to Luke and Andre: Oh my God, I forgot to tell Stormie about the trench. Luke said: You worry too much. Luke then said his Dad had told him that at long last the Shopping Centre was going to fix the lights at the car park. 16. Andre said: Chillax Klarz. I said: Don t chillax me Andre, I m worried. That trench is very dangerous Stormie will never see it. 17. About 5 minutes after Stormie ran off we got to the Shopping Centre car park. I looked in the direction of the car park and could see that a security guy was there. Car lights were shining on something and then I realised it was Stormie. 18. I said: that looks like Stormie and went into the car park. I was shocked. Stormie was on the ground completely unconscious. His leg was twisted in an awkward way like it was backwards or something. He was bleeding badly. 19. The security guy was getting a first aid kit out of his car and talking on his mobile phone. I think he was calling an ambulance. It seemed to take ages for the ambulance to come. 20. When I could hear the ambulance siren I also noticed the owner of Letty s Cafe come up to the trench. 21. Stormie obviously didn t see the trench. There were two barricades in front of the trench immediately facing each entrance. It wasn t enough. There should have been something in the middle of them to warn pedestrians walking over the grassed area at the front of the car park. 22. The trench ran the whole way across the width of the car park. You just couldn t see it in the dark. It was about 50cm deep and 10cm wide. 23. I didn t see where the kid on the bike went. The Law Society of Western Australia Page 12 of 17

14 STATEMENT OF JOEL SKARSGAARD Dated 1. JOEL SKARSGAARD, Security Officer of 22 Alfred Street, Waratah, states: 2. I am a Security Officer for the Shire of Banksia under which Fountain Lakes comes. My duties are to patrol within the Shire boundaries to assist in the detection and prevention of crime and to ensure that the members of the community are safe. 3. I have been employed as a Security Officer for the Shire for 7 years. 4. Last year the Fountain Lakes Shopping Centre and in fact a lot of the Fountain Lakes area had a terrible graffiti problem. 5. The Mayor of Banksia won her election on a ticket of stamping out graffiti and so the Shire Security Officers were told to make a big effort to stamp it out. We particularly wanted to catch D*Face who left a tag everywhere. 6. On 6 June 2016 I was asked to visit the Mayor of Banksia, Mrs Letty Shaw. Mayor Shaw is the owner of Letty s Cafe, a food outlet in the Fountain Lakes Shopping Centre. I met with the Mayor about 5pm. 7. She told me that she had overheard some young people at her shop talking about D*Face. They said that D*Face was a year 10 kid from Fountain Lakes High School and that it was also well known that she was going to try to do some painting on the Shopping Centre walls on the night of 7 June. 8. Mayor Shaw asked me to keep a keen eye out on 7 June and to patrol the Shopping Centre. Mayor Shaw said: there will be lots of kids here trying to discover who D*Face is. 9. On 7 June 2016 at about 8.30 pm I parked my security car in Bruce Road, about 70 metres east of the Shopping Centre. About 15 minutes later I noticed some kids walking down the street. They walked down the street on the other side of the road and past my car. Then a kid went by on a bike, very fast, and one of the kids walking down the street began to run after him. I thought that the kid on the bike might be D*Face. 10. I started the car and drove down the street towards the Shopping Centre. The kid who was running was almost at the entrance to the car park by the time I started my car. 11. I drove down Bruce Road and pulled into the car park and my lights shone onto someone lying on the ground. I jumped out of the car, leaving the headlights on, and found a kid lying face down and motionless. He was in a bad way. The Law Society of Western Australia Page 13 of 17

15 12. The kid on the ground I now know to be the Plaintiff. He was lying on the ground on the southern side of a trench which was about 50cm deep and10cm wide. The trench ran the width of the car park. 13. I returned to my car, got my mobile and called an ambulance, and got out my first aid kit. 14. As I did the other kids arrived. Mayor Shaw also walked up some time later. 15. I kept my headlights on and attended to the Plaintiff while waiting for the ambulance. 16. I am not able to say whether the lights at the front of the car park were on. I was too focused on the Plaintiff and had my car lights trained on him. I had noticed two danger signs near the trench. 17. There was a red fluorescent witch s hat partially in the trench only 20 or so centimetres from where the Plaintiff lay. I also noticed a yellow safety light in the trench not far from the witch s hat but it was not on. 18. After the ambulance left, I placed the red fluorescent witch s hat on the ground beside the trench between the danger signs. I retrieved the yellow safety light from the trench and turned it on. It was working fine. 19. The yellow light could be secured to the witch s hat. I secured it to the hat and then I left. 20. I did not again see that kid who had been riding down the road past my vehicle. The Law Society of Western Australia Page 14 of 17

16 STATEMENT OF LETTICE BUTTERFIELD SHAW LETTICE (LETTY) BUTTERFIELD SHAW, Mayor, of the City of Banksia Chambers, corner of Grevillea Avenue and Eucalypt Road, Banksia, states: 1. I am the Mayor of Banksia and I am the proprietor of Letty s Cafe which I have run for some 20 years now. 2. I was elected to the position of Mayor on an anti-graffiti ticket. Graffiti is a blight on the world. I love art, but not rubbish. 3. For some time last year the Fountain Lakes Shopping Centre had a big problem with graffiti. 4. I always kept an ear on the conversations around the tables in my cafe. It paid dividends. I overheard a conversation in which I learnt that the infamous scourge of Fountain Lakes, D*Face, was a young student at Fountain Lakes High School. I heard the kids saying everyone was keen to know who D*Face was and that she was going to strike the Shopping Centre on the night of 7 June. 5. I called the Security Officer, Joel Skarsgaard, and asked him to see me on 6 June. I said to Joel: I overheard kids saying D*Face is going to hit the Shopping Centre on 7 June. Apparently the kids at Fountain Lakes think D*Face is a Year 10 girl at Fountain Lakes High School and they all want to discover her identity. 6. My cafe looks straight out onto the Shopping Centre car park. From my counter I have a good view of the car park and can see out to Bruce Road. I usually close my cafe at around 9.30pm. 7. On 7 June, I had noticed during the afternoon that the Shopping Centre maintenance guys were working on the lighting at the entrance to the car park. This was a prudent move by the owners of the shopping centre. The entrance to the car park is lit by the street lights in Bruce Road but the entrance lights and a sign for the centre had been flickering annoyingly. 8. Just before 5 pm the Shopping Centre maintenance people left for the day. I went out of the shop to say goodbye to them. They had dug a trench; they told me the trench had been dug for an electrical cable. I noticed that they had placed warning signs near the trench facing each entrance. 9. They also placed a red fluorescent witch s hat in the middle between the two warning signs. On the hat they placed a yellow flashing light. The Law Society of Western Australia Page 15 of 17

17 10. From time to time during the evening of 7 June I noticed cars trying to enter the car park and having to reverse out. I also noticed that the yellow warning light was flashing brightly. 11. Sometime around 9 pm I happened to look out the shop window into the car park. I noticed that at the entrance a Shire security car was parked and someone appeared to be bending over something on the ground. 12. I went to have a look. When I got there I saw the Plaintiff, a nice young bloke who I know, lying on the ground. He was in a bad way and his friends were also there. I could see a witch s hat in the trench and a yellow warning light. 13. It is clear that Stormie just didn t see the flashing yellow light but, it was obvious. It was visible to me as far away as my shop. Stormie is a nice kid, but he wasn t looking where he was going. It s all very sad. The Law Society of Western Australia Page 16 of 17

18 Thomas Road Fountain Lakes Shopping Centre (not to scale) N Warning signs Bruce Road Entrance Grass Entrance Stormie Trench Car Park Walk Way Letty s Cafe Shopping Centre The Law Society of Western Australia Page 17 of 17