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Law Assignment on Intentional Torts &Statutory Interpretation

Question

Task: Law AssignmentPart 1: Intentional Torts
Question 1: It’s that time of year again and everyone is excited about the weekend’s football grand final between the Sydney Rams and the Melbourne Dragons at the Sydney Football Stadium. Lee has travelled up by train from Melbourne to stay with friends and go to the game. He’s a crazy Melbourne fan and is wearing the Dragon’s jersey and scarf. The train arrives late on Friday night at Central Station which is close to where his friends live. He doesn’t know Sydney very well and is following directions on his phone to their apartment block. He crosses Belmore Park, which can be a little dangerous late at night, when he is approached by a group of young men. Two of the youths (Kev and Mick) step out in front of the group and speak to Lee.

“Hey mate, are you lost?” says one of the two who has stepped forward, who then turns to his friend and says: “Hey Mick, this guys must think he’s in Melbourne, look at what he’s wearing.”

Mick answers, “Yeah, he’s asking for it in that gear, Kev, he must’ve taken the wrong turn. That phone mustn’t be working too good.”
Lee answers, “No it’s all good, I’m just on my way to my friends’ place.”

Kev says, “That’s a pretty nice phone, must’ve cost a lot, where’s your friends’ place?”
“In Harris Street,” says Lee
“Nah, you’re going the wrong way, Harris Street is that way,” says Kev pointing in the other direction.

By this stage Lee is getting a bit nervous as the group starts to circle around him and he says, “Look, I don’t want any trouble.”
Mick says, “Mate, we’re just trying to help, if you give me your phone I’ll reset the directions and you won’t have any problems, just give me the phone.” Lee turns and starts to walk away, the group spreads out and starts circling and following him, slowing him down.

Mick says, “If you don’t give me your phone you’ll never find the way.” Lee turns and Mick reaches out for his phone and says: “I’m just trying to help you mate.”

Lee snatches his hand back before Mick can get his phone and he turns and pushes through the circle, running back through the park until he reaches Central Station. Nobody follows him. He eventually finds his way to his friends’ apartment block. The grand finale is sold out and there’s a massive crowd for the game. Lee and his friends meet up early at the stadium with some other Melbourne fans to make sure they get good seats in the unreserved section. There’s still a couple of hours left until the gates open and one of the friends, Angus, has brought a football with him to pass the time. Lee stays in the queue to keep their places while Angus and the other Melbourne friends start kicking the ball around on the forecourt outside the stadium.

The friends are having a lot of fun kicking the ball around, claiming to score goals, pulling their shirts up over their heads and pretending to be famous footballers. One group of friends collects on the other side of the queue and challenges the other group to try and kick the ball over the awning that is above the queue of people waiting to get in. Angus kicks the ball and it hits the awning above the queue and ricochets back to him. A small piece of rusted metal falls from the awning to the ground behind a young girl, Riya, who is standing in the queue behind Lee. Lee yells out to his friends to stop messing around but before he finishes speaking, Angus, who is determined to kick the ball over the awning, kicks the ball as it rebounds back to him. This time the ball is heading straight towards Riya and Lee pushes her out of the way so it doesn’t hit her. Unfortunately, she slips and falls down on the rusted piece of metal that had just fallen and cuts her hand. It starts to bleed and Riya starts crying in pain and shock. Her father, Drake, takes her to the First Aid station.

Luckily, there is a doctor, Doctor Phil, on call and he says that she must have a tetanus and an antibiotic injection. Riya objects because she doesn’t want to take anything that is foreign to her body. Drake tells the doctor that she is only 15 years old and a minor and that as her father he can decide for her. Doctor Phil gives Riya the injection.

Consider the above scenario and advise:
a) whether Lee could bring any action in intentional torts against Mick;
b) whetherRiya could bring an action in intentional torts against either Angus or Lee;
c) whetherRiya could bring an action in intentional torts action against Dr Phil; and
d) In your answers you should evaluate the chances of success for each potential action.

Law Assignment Part 2: Statutory Interpretation
Question 2

(i) Which Minister delivered the Second Reading Speech for the Rural Fires Amendment Bill 2014 in the Legislative Assembly? On what page of Hansard does it appear?

(ii) On what date did the Rural Fires Amendment Act 2014 (NSW) commence?

Question 3
(i) In interpreting the amended sections 99A and 100 of the Rural Fires Act 1997 (NSW), hereafter referred to as the ‘Act’, could the results of investigations undertaken by the NSW Rural Fire Service during the 2013-14 bushfire season be classed as ‘extrinsic materials’ under s 34 of the Interpretation Act 1987 (NSW)? Explain your answer.

(ii) In s 99A of the Act there are offences related to the ‘owner’ of a motor vehicle. What act and what section must you consult to find the definition of ‘owner’ of a motor vehicle?

(iii) Under which section of the Rural Fires Act 1997 (NSW) can regulations be made?

(iv) Find the relevant regulations and identify which one regulates the lighting of fires for cooking. Cite the regulation in accordance with the AGLC 4th ed

Question 4
Sydney seems to have coped pretty well with the Covid pandemic. So well, in fact, that there are now chances for live music to come back. The Groovin’ Move Outdoor Festival has been organized on a couple of hectares of bush and farmland about 50 kmsnorth west of Sydney. There will be a few major acts performing and some smaller, less well-known bands as well. The Frenzied Four (Malcolm, Sherry, Lu and Nick) have been booked to play at the Festival. They pride themselves on their performances and always deliver an energetic show which includes one of the band, Malcolm, juggling firesticks and breathing fire on stage.

The band decides to go to the Festival a couple of days early and camp as Nick’s father owns a little block of land not far from the Festival site. To keep costs down they all go in Nick’s car and borrow his father’s trailer to put all their gear and food in. Being altogether in the car also means they’ll have a chance to listen to some of their recorded music and discuss any changes they might make to their playlist for the Festival. They leave Sydney early on a really hot day and because they are listening to their music and not the radio they miss the official government announcement that:

‘Due to the unforeseen extreme weather that is now being predicted the NSW government has at 10am this morning announced a statewide total fire ban for the next 24 hours.’

They arrive at the campsite at about 10.15. It is a shady piece of bushland down a bumpy old dirt road a couple of kilometres away from the Festival. It’s a beautiful spot, protected from the wind by the trees with a small creek and water hole nearby. As they’re setting up camp Malcolm tells everyone he’s got a great idea for the show. They should start their act with Nick’s car driving across the front of the stage towing him in the trailer as he does his fire act. He says that because of the Covid restrictions there’ll be plenty of room in front of the stage. Lu and Sherry can start playing on stage, Nick can drive the car and then he and Malcolm will join the others on stage. Everyone thinks it’s a great idea.

Nick and Malcolm decide to have a practice run but not where they’ve camped as the ground is too bumpy, they need a piece of smooth road. They leave the campsite and find a stretch of road that looks suitable. It’s even hotter than it was in Sydney and they find a tree to park under while they are preparing. Malcolm is having trouble trying to light his fire sticks as a strong north westerly wind is blowing. He eventually gets them lit and stands in the trailer practicing. He then gives Nick the signal to start driving. Nick is about to start when he looks up to see a NSW Rural Fire Service (RFS) truck approaching. Annie, one of the volunteers gets out of the truck and walks up to Malcolm and asks him what he thinks he is doing. When Malcolm explains she shakes her head and explains that there is a total fire ban in place. Malcolm, sensing the seriousness of the situation apologises and drops his fire sticks onto the trailer floor. When he explains where they are camped Annie tells him they better get out of there as that area will be extremely dangerous if a fire starts. She says she won’t report them this time but they better drive back, pack up and move campsites. Malcolm jumps out of the trailer and into the car with Nick and they drive back to the campsite. As they are leaving Annie takes a photo of the car and trailer’s registration numbers.

Meanwhile, back at the campsite Lu and Sherry are getting hungry. They decide to make a fire and cook some bacon and eggs. Lu grew up going camping regularly with her family so she knows how important it is to clear all the leaves and twigs from around the fire to make it safe, just like her father showed her. There’s nothing quite like bacon and eggs cooked over an open fire and the girls are feeling pretty contented. Lu tells Sherry that she is going down to the creek to soak and cool her feet but not to put out the fire as the boys might want to use it. Sherry watches the fire for a while and puts another branch on it to stop it from going out. She calls out to Lu, who turns, and tells her she is feeling a bit hot and tired and is going to have a lie down in her tent. Lu says ok and turns back to face the creek.

Lu is feeling nice and cool and just a little bit sleepy when she hears a car coming. She turns, thinking it must be Malcolm and Nick, only to see a police car pull up next to the campsite. Constable Adams gets out of the car and walks towards the campfire. Lu leaves the creek and meets him at the fire. He explains that he received a message from a RFS patrol that they were camping here and that he had come to warn them to leave. Sherry comes out from the tent and asks what is going on. Constable Adams tells them to put the fire out as there is a total fire ban in place. He then asks them for their details as they will be charged with several offences under the Rural Fires Act (1997) NSW.

By this time Malcolm and Nick have left the smooth road and are hitting the bumpy dirt road back to the campsite. They hit a couple of large potholes and the fire sticks start bouncing around in the trailer. One of the fire sticks bounces out of the trailer into the long dry grass at the side of the road. The stick is still hot and that combined with the dry wind and grass leads to a small fire starting on the road’s edge.

Neither Malcolm or Nick notice nor they keep driving. As they drive into the camp site they see Lu, Sherry and Constable Adams around the camp fire. They get out of the car and walk towards them.

Constable Adams looks up and notices a small plume of smoke coming from about a kilometre away. He tells Lu and Sherry that they can expect to receive a Court Attendance Notice (CAN) in the next week or so and leaves in the direction of the smoke. When he gets to the smoke the RFS volunteers are already there and the situation is under control. One of the volunteers finds the fire stick and asks Annie if this was the same as those 2 guys were using earlier. She says yes and gives the car and trailer registration details to Constable Adams.

Advise the members of the Frenzied Four if any of them have committed offences under Part 4, Divisions 6 and 7 of the Rural Fires Act 1997 (NSW).

Answer

Part 1
Question 1

(a) Issue: In the first scenario of this law assignment,Lee denied giving his phone to Mick, but Mick tried to snatch his phone by saying he is trying to help Lee to find the way out. Rule:There are three most common types of intentional tort and they are attacking someone, harming a person and false imprisonment. In this case, assault or attacking someone is applicable in terms of intentional tort . In the case of Assault, the plaintiff is threated by the defendant with violence and harm.

Application: The intentional tort in the form of assault is applicable in the case because Mike tried to interrupt in the works of Lee even he does not want to get help from Mike. Mike tried to snatch Lee’s phone by saying that he is trying to help Lee to find his way out. With the support of intentional tort-assault, Lee can ask for compensation for threatening him on his way that he will not be able to find his way if he do not give his phone to Mike.

Conclusion:The applicability of intentional tort is in the support of Lee because; Mike tried to snatch his phone by saying that he want to help. Mike forced Lee to give the phone to him even lee denied to do so.

(b) Issue:While playing in the stadium, Angus hit the football to awning which left some rusted metal on the floor, while he kicked the ball again targeting at the awning, Lee pushed Riya to save her from getting hit by the ball. Unfortunately, Riya she fall on the ground, which caused cut in her hand with the metal pieces. The key issues raised here whether the action done by Lee and Angus has intentions to harm Riya and what action Riya can take against them.

Rule: The intentional tort of battery or harming a person is applicable if there was a physical contact between the plaintiff and defendant, which can extent events to pouring water or spitting on plaintiff. If the physical contact is done intentionally then the intentional tort of battery is applicable. There are certain criteria of the applicability of intentional tort if the action caused harm to plaintiff is not intentionally done by defendant. Sec-3 (b) of Civil Liability Act 2002 (NSW) reflects that reckless act is not sufficient to meet the requirements of intention to cause injury or harm . The case that supports the fact is Dickson v Northern Lakes Club (2020), which reflects that Mr. Dickson, the plaintiff made allegations against Mr Fletcher, the defendant as well as Northern Lakes Club. The decision of the court revealed that Mr Fletcher did not intentionally caused harm to the plaintiff. However, the action of the defendant was reckless, but it does not mean that there was an intention to injure, so separate judgement will be applicable for that.

Application: After analysing the intentional tort element as well as the support of the case example in the light of Civil Liability Act 2002 (NSW), it can be said that the action of Lee and Angus were not intentional. Lee tried to save Riya, so he pushed her, and the act of Angus is a part of recklessness. Hence, the intentional tort of battery is not applicable in this case, but the actions of Angus can be counted as recklessness, and his part will be judged according to that act.

Conclusion: The intentional tort of battery is not applicable in this case because of its exclusion of certain acts that signifies whether the harm or injury to the claimant done intentionally or not.

(c) Issue:In this scenario, Dr. Phil gives Riya the injection as per the consent given by her dad, but Riya did not allowed to do so. As she is 15 years old, her father gave consent on the behalf of her.

Rule: In NSW, the consent of a young person whose age is 14 years or more than that is eligible to give consent to medical treatment. If any medical professional or practitioner intended to carry out the treatment without the permission of the patient who is more than 14 years then it will be considered as intentional tort of battery or harming a person .

Application: In this case, Dr. Phil gives the injection to Riya as per her father’s permission, but as Riya is 15 years old, she is eligible to give consent to her medical treatment and hence, the intentional tort of battery is applicable in this case and based on this Riya can take action against Dr. Phil.

Conclusion: Riya is eligible to provide consent to her medical treatment, but as Dr. Phil carried her treatment without considering her consent, and then it will be considered as intentional tort.

Part 2
Question 2

(i) Mr. Clark, Attorney General delivered the second reading speech and ait appears in page no-2755 in Hansard .

(ii) The commencement date of Rural Fires Amendment Act 2014 is October 28, 2014, same date when the Act assented .

Question 3
(i) As per sec-34 of Interpretation Act 1987 (NSW), if any material which does not forms part of statutory rule is capable to assist the ascertainment. The consideration that is given to the material in the purpose of confirming the meaning of the provision is conveyed ordinarily and if the provision is obscure and ambiguous. Hence, it can be said that the investigation of the service can be classed as extrinsic materials .

(ii) As per Motor Vehicles Standards Act 1989, the registered owner of a motor vehicle is the person who is recorded in the motor vehicles register can be considered as the motor vehicle’s owner .

(iii) According to Sec- 135, of Rural Fires Act 1997 (NSW), the governor can make regulations .

(iv) Section 3 of Fire control Act 2000 regulates the lighting of fires for cooking .

Question 4
Issue: In the present case, the key issue that caused problem for Frenzied Four was the announcement from NSW government that they missed. The announcement was not communicated with them as they were listening to the music over other device. Despite of the total fire ban for 24 hours in the state, the members of Frenzied Fourused fire for cooking, which leaded to violation of the rule.

Rule: The rule applicable in the case is Part 4- Division 6 and Division 7 of Rural Fires Act 1997. Part 4 of this act deals with the minimisation and prevention of bush fire. The division under part 4 provides hazard reduction for bush fire. Division 6 of part 4 provides rules for total fire ban orders. A total ban order of fire are taken by ministry in order to safeguard the public and to prohibit lighting, use of fire in open air and maintenance of use if fire during specific period. During the total ban of fire, the area identified for the ban is the place where the order is applicable. If any person fails to act according to the total fire ban order will be considered as guilty of offence . Maximum penalty for the offence is 50 penalty units and/ or 12 months of imprisonment. According to division 7 of Part 4, a person must not discard any lighted tobacco product or any incandescent material such on the land during a total ban of fire.

Owner or driver of a vehicle deemed guilty if any object that includes fire risk discarded from the vehicle. This rule is not applicable in the case of public transport, taxi or bus. As per this division, if a person causes fire or sets fire in the land of other person or in public authority during the total fire ban, then the person will be deemed as guilty. A person is deemed as guilty for the offence if the person leaves any fire temporarily and has lit in open air and leaves the place without extinguished it properly. In such case, the person has to bear the penalty of 12 months imprisonment and 50 penalty units.

Application: Based on the explanation of Divisions 6 and 7 of Part 4, it can be said that the members of Frenzied Four committed offences as they are involved in lighting up fire during the period of total fire ban throughout the state. Nick and Malcolm made an offence and caused a situation of bushfire as the fire stick lit by them discarded from the vehicle unknowingly, which caused small fire on the dry grass. At the time when there is a total ban of fire, if any incandescent material or lighted tobacco product discarded on land then it is considered as an offence under Division 7. Hence, Nick and Malcolm committed the offence even after communicated about the fire ban from Annie. On other hand, Lu and Sherry decided to make a fire for cooking, and they left the fire lighted in open air and did not extinguished it properly and they were also not in front of the fire to ensure whether it not caused any accident . Hence, it can be said that they left the fire in an open air without extinguished it and as Lu is the person who lit the fire and moved from the place, so she made an offence under Division 7.

Conclusion: Based on the actions taken by the members of Frenzied Four during a period of total fire ban in the state, it can be said that they made offences as per Division 7 as the fire ban was publicly announced. ?

References
Australian law Reform Commission, “Exemption or Defence for Children and Young Persons,” ALRC (2021)

Civil Trials Bench Book, “Intentional Torts,” www.judcom.nsw.gov.au (2021)

Ford, Peter, “NSW Court of Appeal Spear Tackles Intentional Torts,” McCabe Curwood (December 3, 2020)

legislation.sa.gov, “Motor Vehicles Standards Act 1989,” www.legislation.sa.gov.au (2020)

New South Wales Consolidated Acts, “INTERPRETATION ACT 1987 - SECT 34 Use of Extrinsic Material in the Interpretation of Acts and Statutory Rules,” www5.austlii.edu.au (2020)

NSW Legislation, “View - NSW Legislation,” Nsw.gov.au (2018)

NSW Legislation, Contents (2014) https://legislation.nsw.gov.au/view/pdf/asmade/act-2014-66

PARLIAMENT OF VICTORIA, PARLIAMENT of VICTORIA PARLIAMENTARY DEBATES (HANSARD) LEGISLATIVE ASSEMBLY FIFTY-SEVENTH PARLIAMENT by Authority of the Victorian Government Printer (, 2014)

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