MLL213 Torts Assignment - Credit

6 Pages • Essays / Projects • Year: Pre-2021

The Assignment is based on the following hypothetical. Colin works full time as a boner at the North Geelong Abattoir and a member of the Bellarine Bikies gang. On 28 October 2013 Colin drives his van to Tim’s house. Colin had heard that Tim had ‘snitched’ on the gang to police. In the van are four other members of the gang, all hardened bikie gang members with a history of violence and prison time for violent offences. They arrive at Tim’s house. The gate is closed and locked with a padlock; Colin gets a pair of bolt-cutters from the van and cuts the chain. He then directs the van down the driveway towards the house itself. Colin gets out of the van and approaches the front door holding a baseball bat. Inside, Tim sees the van, and retrieves a shotgun from under his bed. With shotgun in hand, Tim walks out the front door towards Colin. Tim points the gun at Colin and tells him: ‘Get back in the car and piss off, or I’m gonna splatter your face over the bonnet of your van!’ Colin slowly retreats and returns to the driver’s seat, with the door half closed. Tim now notices that the four other gang members have exited the rear doors of the van, armed with baseball bats, steel bars, and wooden poles. He repeats his command to Colin to get back in the van and ‘To take your mates, and get the hell off my property!’ Tim advances towards the now closed driver’s side door where Colin is sitting. He taps on the closed window with the barrel of the gun. Suddenly, the gun discharges; the glass in the window explodes, and blood trickles from Colin’s right temple. Tim later says: ‘I didn’t mean to shoot; it must have accidentally discharged.’ A police report subsequently confirms that the left trigger of the double-barrelled gun was faulty and able to be discharged by means of an impact to the barrel of the gun. Wounded and disoriented, Colin crawls into Tim’s garage and hides. The garage door was open. He waits for an opportunity to leave the garage and Tim’s property, however Tim—shotgun in hand—patrols the perimeter of the house and garage and the property boundaries for a period of about two hours after the shooting. Colin is too scared to leave the garage for fear of being discovered by Tim and, possibly, shot. After this two-hour period, Tim closes and locks the garage door. Matthew bangs on the door, and begs to be let out. Tim replies: ‘Not on your life, mate. You think I’m going to give you another crack at me!’ Half an hour later, two police officers, Constables Damien Berryman and Dion Jones, arrive at Tim’s front door and ring the bell. Tim hears the bell but ignores it. Damien hears a yell (it was Colin yelling from the garage) and, thinking that someone is in danger, yells ‘Police! Coming in!’ and breaks down the door. The officers find Tim standing in the lounge room with the shotgun levelled at them. When Tim realises that they are policemen and not other Bellarine Bikies gang members, he co-operatively puts the gun down on the ground and holds up his hands, palm outwards. At this point, Colin yells again from the garage and both officers turn around towards the sound; Tim reaches down for the gun, thinking that Colin has escaped. Dion sees Tim move and strikes Tim across the shoulder with his baton. Tim tries to grab the baton from Dion’s hand, and Dion strikes him again, this time on the side of the head. Damien comes to assist Dion and places Tim in a headlock; Dion again strikes Tim with his baton on the other side of the head and his ribs. When Tim slumps to the ground, Damien delivers another blow to the back of his head. After the police release him from the garage, he was taken by ambulance to Corio Hospital, where a neurosurgeon diagnoses him as suffering from a left frontal lobe haematoma, or bleeding on the brain. This leaves Colin with a lifelong physical, cognitive, and psychological impairment, but does not shorten his life expectancy or affect his ability to understand his plight. Colin had received little formal education; he had left school at 16 years old and worked in various labouring jobs before starting work as a boner with North Geelong Abattoir. Colin is unable to return to work, and requires regular monitoring by medical practitioners, as well as medication. His medical expenses up to 28 October 2014 are $32,700 and he will require ongoing treatment costing $70 per week until he dies. He is also unable to undertake the many activities that he participated in prior to the injuries, such as playing football with the Corio Chargers 3rd XIII football team, walking his German Shepherd dog, and riding his Harley-Davidson motorcycle (although he is capable of driving a motor car). At the time of these events, Colin earns $829.00 per week net (ie, after tax is deducted). He drove his Harley to work, which cost him $34 each week in fuel. Abattoir workers retire earlier than office workers, on average they retire at 50. There are various news reports that the abattoir may close due to economic circumstances; it is cheaper to have the meat processed overseas. Colin has a son of whom he has custody on weekends (Colin and his wife separated years ago); prior to the accident he spent 4 hours per week cooking for, cleaning and looking after his son, but has been unable to do so since the accident. Do the following: a) Advise Tim on his potential liability in tort to Colin. In your advice, discuss the potential damages payable to Colin (irrespective of your findings as to Tim’s liability) and assume that the trial date is 28 October 2014 (which also happens to be Colin’s 35th birthday). Use the ‘Life Expectancies 2014’ and ‘One Dollar Per Week Factors for Fixed Terms’ tables published by Cumpston Sarjeant for 2014 to complete your damages calculations. b) Advise Tim on his potential actions in tort against the policemen (do not discuss damages).

This document is 10 Exchange Credits