ACT Schools Mock Trial Competition: Round Three Question

Proudfoot v The Australia Regional University

In the ACT Magistrates Court

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ACT Schools Mock Trial Competition: Round Three Question

Statement of Agreed Facts:

Each university semester, the Australia Regional University (ARU) hosts a ‘Market Day’ on its Canberra
campus. At the ARU Market Day, registered student societies are given the opportunity to set up a stall at
an allocated area on the ARU Oval to advertise to staff and students from 9am to 3pm.

Student societies are required to submit a ‘commitment form’ signed by the society’s executive members
at least two weeks before Market Day to be granted a spot. Upon the submission of a completed
commitment form, each student society is granted one table, two chairs, and a small fold-up tent (to provide
protection from any harsh weather). These items must be collected on Market Day by 8.30am on the ARU
Oval and returned by 3.30pm that same day.

Market Day for the first semester of 2018 was scheduled to be held on 20 February 2018. This Market Day
was to be the ARU’s 50th Market Day, so the ARU had planned extensive activities and catering. The event
was widely promoted and advertised, attracting a record 251 student societies that submitted commitment
forms.

To accommodate the large number of societies participating, the lead organiser of the ARU Market Day,
Dorothy Shortbottom, decided to allocate stall locations beyond the usual boundaries of the ARU oval.
Dorothy allocated 20 additional stall locations along the grass sidewalk over the neighbouring Sassafras
Creek which connects the ARU oval to the rest of the ARU campus (see diagram below).

On the evening of 18 February 2018, Australian weather agencies released a report forecasting unexpected
strong gale-force winds which would reach Canberra by mid-day on 20 February 2018. At 11.15am on
19 February 2018, Dorothy sent the following email to all stallholders:
Dear Market Day Stallholder,
As you may be aware, recent weather updates have forecast strong winds on Market Day. Because
of this, it is essential that every stall securely fastens their tents to the ground to ensure the safety
of every person. Stallholders are required to collect 12 bricks along with their tent, desk, and two
chairs from the oval by 8.30am on Market Day. Equipment will be available to be picked up from
7.30am. Four bricks are to be placed on the three respective edges of each tent (with the fourth
side being open to allow people to see your amazing stalls!) Any failure by a stall to comply with
these instructions will result in the shutdown of their stall for the entire day. Periodic checks will
be carried out by on-site Market Day officials to enforce this.
Sincerely,
Dorothy Shortbottom
ARU Market Day Lead Organiser
ACT Schools Mock Trial Competition: Round Three Question

From 7.30am on 20 February 2018, stallholders collected their equipment from the ARU equipment
counter on the ARU Oval to set up their stalls. Jimmy Clutterbuck, a society executive of the ARU Potato
Appreciation Society, was running late to pick up the equipment for his society’s stall, after leaving some
potatoes at home. Jimmy arrived on the ARU Oval at 8.45am to find the on-site Market Day officials in
the process of closing down the equipment counter. He quickly approached the official in charge, Rhadika
Patel, and after apologising profusely for his lateness, asked if he could still get the equipment for his stall.
Rhadika refused, pointing out that it had been made very clear to all stallholders that they were required to
have picked up their equipment by 8.30am. However, she ultimately relented after Jimmy’s repeated
begging. Jimmy quickly gathered his equipment including his allocated desk, chairs and fold-up tent.
Unfortunately, there were only 11 bricks left in the collection tray. Jimmy took the 11 bricks and the other
equipment to his allocated stall location along the grass sidewalk. Jimmy had set-up his stall (decorated by
his choice potatoes) by 9.00am. Since he only had 11 bricks, the back edge of his tent was held down by
three bricks instead of four.

Winds were already starting to increase in strength by the time that the Market Day officials conducted
their second round of stall compliance checks at 10.40am. Jimmy’s stall had missed the first inspection
which occurred from 8.40am-8.50am as Jimmy was still collecting equipment from the equipment counter.
Rhadika was in charge of inspecting the stalls along the grass sidewalk. When she inspected the ARU
Potato Appreciation Society’s stall, her view of the back edge of the stall’s tent was blocked by a gaggle
of potato enthusiasts locked in avid conversation with Jimmy and his other society executives. The winds
soon increased to the point where many societies had to put away the pamphlets on their stall tables to
prevent them from flying away.

At 12.00pm, there was a significant decline in the number of students perusing the Market Day stalls due
to a free lunch being provided by the ARU. However, this did not stop a stoic ARU student by the name
of Bradley Proudfoot from making his way to the ARU Potato Appreciation Society’s stall at 12.08pm,
having searched for it for over half an hour. As Jimmy stood up to hand a pamphlet to Bradley, a
particularly strong gust of wind swept over the grass sidewalk. The edge of the ARU Potato Appreciation
Society’s stall suddenly lifted up and swept into Jimmy’s back. Jimmy stumbled into the table which fell
over and sent both his potatoes and Bradley sprawling several metres over the edge of the grass sidewalk
and into Sassafras Creek. Several of the bricks holding down the tents of the other stalls along the grass
sidewalk fell off, but their stallholders noticed this in time to pick them back up and replace them before
the edges gave way. Bradley was fortunately spotted and quickly saved by a member of the ARU Lifeguard
Society. He was later transported to hospital via ambulance. Shortly after Bradley’s injury, the Market Day
festivities were shut down.

As a result of his fall, Bradley broke his right hand, developed pneumonia and a fear of creeks, causing
him to defer his studies for a semester. He is very angry with the ARU for the lack of safety that they
provided for him on Market Day and has filed an action in the ACT Magistrates Court for negligence,
seeking $120,000 worth of damages ($50,000 in medical expenses, $50,000 in lost wages for the extra
semester it will now take for him to finish his degree and $20,000 in damages for the loss of his capacity
to perform domestic services). The ARU is refusing Bradley’s claims, stating that aside from seeking too
much in damages, they had satisfactorily discharged the duty of care that they owed to him. The ARU
further suggested that Bradley should take action against the ARU Potato Appreciation Society instead.
ACT Schools Mock Trial Competition: Round Three Question

Plaintiff Witness Statement 1: Jimmy Clutterbuck

My name is Jimmy Clutterbuck. I’m a third-year undergraduate student studying my final year of a Forestry
degree at the ARU. My address is 29 Abadine Close, Tuggeranong.

So, I found out after Bradley fell into the creek that the head organiser of Market Day had sent an email
the day before telling us that we needed to have 12 bricks on each edge of our tents. I had no idea at all
that we needed to have that many when I turned up that day. I just saw 11 bricks in the tray and took them
all to set up my tent. No one told me I needed to have 12 bricks at any point—all that Rhadika Patel told
me at the equipment counter was to get my stuff quickly and clear out because they were packing up.

What was with the bricks anyway, they were never going to work—tent pegs would have been a much
safer choice. I guess the ARU didn’t want to damage the oval, but I know from my studies that ovals have
resilient natural features. I mean, if they can handle the premier division rugby matches or thousands of
university students tramping around on them they could definitely handle a few pegs!

And before anyone calls me negligent for not checking my emails, I wasn’t the only one! My mate Billy
Chogath who ran the Hamburger Eating Society stall told me that he didn’t see the email in time either—
he just saw other people taking bricks when they turned up to the equipment counter so he took some too.
I bet that’s why I didn’t have enough bricks to pick up, some other stall-holding peeps mustn’t have known
how many they were supposed to pick up and took more than 12.

If the ARU thought it was so important for us to set up our stalls with 12 bricks why didn’t they send the
email earlier or send us a text or something as well? I mean what kind of university expects their students
to check their emails every day, we are millennial students not working professionals. If the university
really wanted to get the word out they should have done so through a Facebook group or SMS.

I didn’t notice at the time because I was too busy displaying my prize-winning potatoes and taking down
new membership signups (we got over 250) but apparently the on-site officials inspected my stall at around
11am. I’m not sure how they didn’t manage to see that one of the edges of my tent only had three bricks
on it.

I mean, I know my stall was crowded with fans until lunch time, but if the officials couldn’t see the back
edges they could just ask people to move, couldn’t they? Seems pretty lazy on their part. That being said,
I don’t think they had spare bricks to hand out in case a stall holder didn’t have enough. Billy told me that
none of the people who checked his stall had spares.

I feel really bad for Bradley—he searched for the whole morning for my stall and before I even got to hand
him a pamphlet, he takes a dive into Sassafras creek. I guess if I wasn’t late things might have turned out
differently, but then again, if the Market Day organisers did a better job at informing us that we needed 12
bricks and at checking our stalls, none of this would have happened either.

If they weren’t prepared to dedicate the time to performing adequate checks, they could have postponed
Market Day until the weather changed. After all, if there is one thing that I have learnt through my Forestry
degree it is that the calm always comes after the storm… or should that be before?
ACT Schools Mock Trial Competition: Round Three Question

Plaintiff Witness Statement 2: Albert Proudfoot

My name is Albert Proudfoot, private surgeon and proud father of Bradley Proudfoot. My address is 56
Demacia Street, Ford.

My son Bradley was set to enter the second year of his studies towards a double degree in Forestry and
Agriculture, from which he would then no doubt embark on (with a father as great as myself) an immensely
successful career. Between you and me I already have several key positions lined up, I can’t say who with
but they’re definitely major players. However, due to the disgustingly negligent and careless conduct of
the ARU, my son is now suffering from a broken arm, pneumonia and a serious fear of open-water areas.

He has already incurred $40,000 worth of medical fees from operations relating to his broken arm and
pneumonia. In addition, Bradley will also require fortnightly psychological treatment and counselling to
overcome his fear of open-water areas for the next 2 years—costing $10,000 (thankfully with this
counselling I have been told he will overcome his fear and as such won’t need any ongoing support). I
expect the ARU to pay for every single cent of these medical expenses—none of this would have happened
if the ARU took the safety of its students seriously!

I had read the weather report for that day, which mentioned the risk of gale-force winds. I know how
dangerous gusts in those conditions can be to people from my time in the Emergency Department at
Canberra Hospital. ‘Only 11 bricks were used when there should have been 12’? Nonsense. That extra
brick would have made no difference. I’ve treated injuries where trees were uprooted by gale-force winds.
Having seen that report, I believe that the ARU had no choice but to cancel the event.

My son was also intending to complete the practical farming component of his Agriculture degree this
semester. This involved going out to a farm for three quarters of the semester to engage in practical farming
activities. Obviously with my son’s broken hand and fragile post-pneumonia state, there is no way that he
would be able to participate in such activities. He has therefore most regrettably had to drop out of all his
university courses this semester.

This amounts to a 6-month delay towards him finishing his double-degree at the ARU. Given my son’s
genetic credentials, there is no doubt that at the completion of his highly competitive double-degree he
would land a graduate position paying a minimum of $100,000 per annum. This 6-month delay that my
son will be forced to incur due to the carelessness of the ARU therefore results in a further loss of $50,000.

Finally, my son’s medical conditions have placed a considerable strain on myself. While I have not had to
take time off work, much of my free time is now used to take care of Bradley. This involves performing
his house chores such as vacuuming the house, mowing the lawn, shopping, cooking his meals, and helping
him perform psychological exercises to help overcome his trauma from falling into the creek. Things are
now getting a bit better as Bradley is now more or less fully recovered from his pneumonia, although his
broken arm will still take several months to recover. I will be kind and only expect the ARU to compensate
for $20,000 of the loss of time and energy that their carelessness has cost me.
ACT Schools Mock Trial Competition: Round Three Question

Defendant Witness Statement 1: Dorothy Shortbottom

My name is Dorothy Jane Shortbottom, I am employed by the ARU as the lead organiser of the 2018 ARU
Market Day. My address is 5 Auburn Street, Kaleen.

This year, we received a record number of societies submitting a commitment form to run a Market Day
stall on 20 February 2018. Because of this, I made the completely reasonable and safe call to have 20
additional stalls along one side of the grass sidewalk connecting the ARU Oval to the rest of the ARU
Campus. The ARU Oval simply doesn’t have enough space for that many stalls! I had tried to get this
signed off by the university’s geological experts but they were too busy analysing the VC’s latest building
plans, but surely there isn’t that much difference as they are both made of grass?

I was out for dinner with my family on the night when the weather reports of strong winds on Market Day
came out so it wasn’t until the following morning that I received the news from one of my fellow staff.
I promptly informed all stallholders via email that they needed to make sure that their tents were held down
by four bricks on each of the three edges of their tents to make sure that Market Day would be a safe and
enjoyable day for all despite the bad weather. I’d received word from the grounds staff that new grass seeds
had recently been placed on the oval and the sidewalk, so I made the decision to use bricks instead of pegs
to hold down the tents. They work more or less just as well and they don’t create those nasty holes in the
ground! I emphasised the necessity for all societies to secure their tents property by going as far as to
threaten any societies who failed to do so that they would be shut down for the whole day. In my opinion
my email was model of safety precaution perfection.

Well you know what happened next, a student got knocked into Sassafras creek due to the utter failure of
that upstart Jimmy Clutterbuck’s Potato Society to properly abide by my crystal-clear instructions!
Clutterbuck decided to set up his tent with only 11 bricks instead of 12 despite my clear emphasis in my
email that such conduct would be dangerous! And before someone accuses me of not having ordered
enough bricks I’ll have them know that I ordered exactly 3020 bricks - which was enough for each of the
251 stalls to have 12 bricks for their tents with 8 extra to spare, we don’t believe in wasting resources at
the ARU, I mean have you seen all of the recent funding cuts, there just isn’t enough fat to go around! How
is it the ARU’s fault if some other society took too many bricks so that Jimmy didn’t have enough? At any
rate he turned up 10 minutes after the equipment collection deadline outlined in both the commitment form
and my email so he has no right to complain about anything.

I did hear reports of some bricks being blown off correctly set-up tents of some other stalls along the grass
sidewalk but the fact remains that none of stalls which abided by my instructions collapsed. And what is
more, I had a chat the other day with my good friend and esteemed Professor Benjamin Grar of the ARU
Meteorology Department and he told me that the gust of wind responsible for injuring Bradley Proudfoot
must have been well over the predicted 80km per hour to have blown him into the creek—he called it a
“freak of nature”! We shouldn’t be expected to envisage and as such plan for such unlikely occurrences to
arise.
ACT Schools Mock Trial Competition: Round Three Question

Defendant Witness Statement 2: Rhadika Patel

My name is Rhadika Patel. I am a part-time PhD student and have been employed by the ARU as an on-
site official for ARU Market Day for the past 3 years. My address is 99 Zondenko Street, Hawker.

Myself and the other officials in charge of the equipment counter packing up when Jimmy Clutterbuck
showed up and begged me to let him take some equipment for his stall. I said no initially, but seeing how
desperate he was to run his stall—as well as how impressive his prize potatoes were (it would have been
such a shame to deny the visitors of seeing them)—I ultimately changed my mind and signed off his society
on the equipment loan list. I told him to quickly get his equipment as we were in the process of closing
down.

I found out only after we shut down all the stalls that there were only 11 bricks remaining in the collection
tray when Jimmy went to get his equipment. I don’t think this was the ARU’s fault, Dorothy ordered more
than enough bricks for every student society. Also why didn’t Jimmy let me or one of the other officials
know that he didn’t have enough bricks? I mean I was there packing up stuff the whole time he was getting
his equipment.

Later on, I was inspecting the row of 20 stalls along the grass sidewalk for the second round of periodic
inspections on Market Day. As a thorough first round of inspections had already occurred and all the stalls
were found to have enough bricks on each edge of their tents, we were instructed that the later rounds of
inspections needn’t be as rigorous—we just needed to make sure the bricks were still intact and hadn’t
fallen off. I had had a really busy few hours from when I’d signed off Jimmy to when I performed the
second round of inspections helping prepare for the free sausage sizzle so it completely slipped my mind
when I crossed the Potato Society stall that they hadn’t been through the first inspection round. I don’t
have the re-collective capacity of an encyclopaedia!

When I saw a large crowd of people hovering around the stall and blocking the view of the back edges of
the Potato Society’s tent, I didn’t have the energy to try to push through for a better look or ask the crowd
to move over the howling wind. I saw that the side edges were both properly weighed down by four bricks
on each side and made an entirely reasonable assumption that the back edges would be too. I mean what
are the odds that only two of the three edges would be correctly weighed down, apparently one in two-
hundred and fifty-one!

I think Dorothy and us on-site officials did all that we should be expected to do to ensure that Market Day
was safe. After all, Market Day is an amazing event where students get to meet each other over common
interests—it creates a real sense of community, and makes our campus ultimately safer and more inclusive.
Our new students frequently tell us in surveys how important this event is to their first weeks at university—
its where they make friends. If we had to cross check every stall for hurricane proofing, no-one would ever
run these community events and the whole University would suffer. I really don’t see what else we could
have done it’s not my job to try and keep a kiddo so bent on disobeying our instructions from injuring
people!
ACT Schools Mock Trial Competition: Round Three Question

Relevant Case Law and Legislation:

Teams may only use the case law and legislation provided in this section. Judges are advised to ignore any
reference to additional materials. For the purpose of this question teams may assume that the ARU is
responsible for any negligence of its employees and owes a duty of care to the attendees of market day.
Teams should focus their arguments on whether the ARU has breached the duty by focussing on the extent
of the duty it owed attendees and whether it has breached this duty by failing to take reasonable precautions.
They should then address whether this failure caused the Plaintiff’s injuries. Finally, teams should briefly
make submissions as to the appropriate extent of damages (for the respondent this will be a submission in
the alternative that their arguments around whether the ARU was negligent fail).

For the purpose of this question teams should assume that the Plaintiff (if successful in establishing
negligence) can claim all reasonable medical expenses (the legislation on this area is unclear and so has
not been provided). The Plaintiff may also claim damages for lost earnings and domestic expenses incurred
if they fall under the (limited) sections of the Act and the (limited) case law provided. Teams should not
consider other parts of the Civil Law (Wrongs) Act 2002 (ACT) or additional case material.

A Legislation
The elements of Negligence are established in the Civil Law (Wrongs) Act 2002 (ACT).

Section 42: Standard of Care

For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant
is that of a reasonable person in the defendant’s position who was in possession of all the information that
the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm
arose.

Section 43: Precautions against risk—general principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have
known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person’s position would have taken those
precautions.

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm,
the court must consider the following (among other relevant things):

(a) the probability that the harm would happen if precautions were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity creating the risk of harm.

Section 44: Precautions against risk—other principles

In a proceeding in relation to liability for negligence—

ACT Schools Mock Trial Competition: Round Three Question

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions
to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does
not of itself give rise to or affect liability for the way in which it was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk
of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an
admission of liability in relation to the risk.

Section 45: General principles [Causation]

(1) A decision that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused
(the scope of liability).

(2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number
of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1
or more of them—

(a) the court may continue to apply the established common law principle under which responsibility
may be assigned to the defendants for causing the harm; but
(b) the court must consider the position of each defendant individually and state the reasons for
bringing the defendant within the scope of liability.

(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not,
and why, responsibility for the harm should be imposed on the negligent party.

Section 98: Damages for loss of earnings

…
loss of earnings means—
(a) past economic loss because of loss of earnings or the deprivation or impairment of earning
capacity; and
(b) future economic loss because of loss of prospective earnings or the deprivation or impairment of
prospective earning capacity.

Section 100: Damages for loss of capacity to perform domestic services

(1) A person’s liability for an injury suffered by someone else because of a wrong includes liability for
damages for any resulting impairment or loss of the injured person’s capacity to perform domestic services
that the injured person might reasonably have been expected to perform for his or her household if the
injured person had not been injured.

(2) In an action for the recovery of damages mentioned in subsection (1), it does not matter—

(a) whether the injured person performed the domestic services for the benefit of other members of
the household or solely for his or her own benefit; or
(b) that the injured person was not paid to perform the services; or
(c) that the injured person has not been, and will not be, obliged to pay someone else to perform the
services; or
(d) that the services have been, or are likely to be, performed (gratuitously or otherwise) by other
people (whether members of the household or not) …
ACT Schools Mock Trial Competition: Round Three Question

B Case Law
“A reasonable person is one who is guided by community standards and is prudent.”

McHale v Watson (1996) 115 CLR 199.

“Whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose
a duty to prevent potentially harmful conduct.”

Road Traffic Authority of NSW v Dederer (2007) 324 CLR 330.

“What then is the reasonable measure of precaution for the safety of the users of premises, such as a
wharf, who come there as of common right? I think the public authority in control of such premises is
under an obligation to take reasonable care to prevent injury to such a person through dangers arising from
the state or condition of the premises which are not apparent and are not to be avoided by the exercise of
ordinary care.”

Aiken v Municipality of Kingsborough (1939) 62 CLR 179, 210.

“If the law is to take account of future or hypothetical events in assessing damages, it can only do so in
terms of the degree of probability of those events occurring. … unless the chance is so low as to be regarded
as speculative—say less than 1 per cent—or so high as to be practically certain—say over 99 per cent—
the court will take that chance into account in assessing the damages. Where proof is necessarily
unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of
occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the
court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its
award of damages to reflect the degree of probability.”

Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638, 643 (Deane, Gaudron and McHugh JJ).

Further Legal Notes

Notes on Torts and Negligence
A tort is a harm committed against a person that is recognised under civil law. Torts provide legal redress
for people wishing to seek a remedy or compensation for being the subject of such harms.

Negligence is a kind of tort. When a person fails to exercise the care that a reasonable person in the
circumstances would, they are said to be negligent. Consequently, negligence is generally about
carelessness where care should have been taken.

To prove that the defendant is negligent, the plaintiff must first establish that the defendant owed the
plaintiff a Duty of Care. In simple terms, was the defendant in a position which required them to take
reasonable steps to ensure that the plaintiff did not suffer in the way they did? For the purposes of this
mock trial, you can assume that a Duty of Care exists. Simply focus on the next stage: Breach of Duty.
This is the substance of section 43 of the Civil Law (Wrongs) Act 2002 (ACT).

1 Standard of Proof
In your mock trial, you must understand what level of proof is required for the defendant to be found liable.
This is known as the ‘standard of proof’. In a civil case the standard is ‘on the balance of probabilities’.
This is a lower standard of proof than that of criminal cases. The principle is articulated by Denning J in
ACT Schools Mock Trial Competition: Round Three Question

Miller v Minister of Pensions [1947] 2 All ER 372, 374 to mean that it is “more probable than not” that the
facts arose.

2 Burden of Proof
The Burden of Proof refers to which party has the responsibility of proving that the standard of proof has
been met. In general, this burden lies with the plaintiff. The respondent can only be held liable if the
plaintiff can show that it is more probable than not that the defendant should be held liable.