ILAC Problem Question 1) – 20% (20 Marks) The NorthSide Parklands is a public park that is popular with Brisbane residents and visitors which has many activities for people to do there. NorthSide Parklands is owned and managed by the NorthSide Commission, a Queensland government authority. Darren, Mary and Kelly are three friends who visit the parklands. Darren decides he wants to go swimming at the parkland artificial beach and pool, Kelly decides that she wants go for a walk through the parkland gardens and Mary decides that she wants to go for a ride on the parklands Roller-Coaster. Darren goes to the parklands artificial beach and pool and sees that surf-lifeguards are patrolling the beach. He also sees that they have put up two safety flags along the entire width of the beach. Everyone including Darren knows that the safety flags mean that it is safe to swim between the flags. Darren walks into the water between the flags. Darren can feel the bottom of the pool sloping gradually downwards as he walks further into the pool. As he gets towards the middle of the pool, his lower leg hits the edge of what feels like a large obstacle and his lower shin bone is broken. It turns out that is there is a man-made concrete rectangular jetty under the water in the centre of the pool for swimmers to stand and sit on. No-one could see this jetty from looking at the surface of the water because the water is too dark. Mary starts walking through the parklands gardens, but then it starts raining quite heavily. This makes all the concrete pathways slippery to walk on. She sees a sign at the beginning of a level concrete pathway that says “Designated Pathway”. There are no guard rails or holding rails along the length of the pathway. She walks about 10 metres along the pathway but then she slips on the wet surface of the pathway, falls over and injures her back. The parklands Roller-Coaster ride is privately owned and operated by Mr. Morrie Shmuckind and erected on a piece of parkland which Morrie leases from the Commission. Kelly first signs a disclaimer document that states that riding on the Roller-Coaster is dangerous and that she does so at her own risk, then buys a ticket to go on the rollercoaster. She then gets in one of the carriages, Morrie fastens the carriage seatbelt around her and the ride begins. About 5 minutes into the ride, the seatbelt breaks and Kelly is thrown out of the carriage and snaps her wrist as she hits the ground. It is discovered that the reason the seat-belt broke was due to Morrie failing to ensure that the seatbelts were regularly tested for strength and replaced. However, when Kelly accuses Morrie of being negligent, Morrie says he is not liable because she rode the Roller Coaster at her own risk. Advise Darren, Kelly and Mary if either of them can bring any claims under the Tort of Negligence and the Law of Disclaimers from Contract Law against the NorthSide Commission and Morrie? Or not? (You MUST Use ILAC to answer this ILAC Problem Question 1 and YOU MUST ONLY write about the Tort of Negligence and the Law of Disclaimers from Contract Law). ILAC Problem Question 2) – 20% (20 Marks) Billy Idle wants to buy several pairs of hard-wearing and strong leather boots. Doc Martens is the brand name of leather shoes and boots manufactured by an English Company called Doctor Marten’s Boots which are famous world-wide for their long-life and strength. He looks online at a website for a shoe store called “Tarbul’s Shoes” owned by one Mr. Jimmy Tarbul. Billy sees the following advertisement on the Tarbul’s Shoes website “Special. Genuine Leather Doc Martens Hiking Boots. Made in England. New Doc Martens design especially made for tough walking in the mountains and in the bush. Normally, $300 a pair. Now $150 a pair”. Billy goes to Tarbul’s Shoes and inspects several pairs of boots which have the Doc Martens brand on them. Billy says to Jimmy “Are these Doc Marten leather boots strong? I’ve heard that their boots are tough – Is that right? I want to use them for a lot of heavy hiking in the country-side over rocky terrain”. Jimmy says “Yes, these are the ideal boots for what you want to do. It’s the way Doc Martens manufacture the leather that makes them so strong. They can handle any type of rough treatment and they will last you a life-time”. Billy then immediately signs a two page customer contract with Tarbul to buy 5 pairs of Doc Martens boots from Jimmy for an upfront payment $750. This contract is the same contract Jimmy uses with all of his customers for purchase and delivery of more than one pair of boots. It states that Jimmy will deliver to Billy one pair of boots each month for 5 months. Billy receives the first 4 pairs of boots over 4 months and uses them for hiking in rocky mountains and in the country-side. Then before the 5th pair of boots is delivered, Billy discovers: The first four pairs of boots start to develop holes in the surface of the boot which grow bigger every time he walks in them and which let in the rain. Furthermore, the soles of the first two pairs of boots start to separate from the bottom of the boots; On closer inspection the first 4 pairs of boots turn out not to be made of leather, but of vinyl which is a plastic imitation of leather and which is far weaker than leather; The Doc Martens label on one of the 4 pairs of boots peels away and underneath it says “Hungarian Army Boots Company – Made in Hungary”; When the 5th pair arrives, the label on the boots say that they are a pair of “NoBueno” boots made in Argentina. When Billy complains to Jimmy about all 5 pairs of boots, Jimmy directs Billy to Clause 10 of the contract which states: “Tarbul’s shoes reserves the right to change the brand and quality of the boots which the customer has ordered” and Clause 11 of the contract which states: “Both Tarbul’s Shoes and the customer agree that the provisions of the Competition and Consumer Act 2010 will not apply to this contract”. Advise Billy if he can bring any legal claims under Australian Consumer Law (ACL) against Jimmy? Or not?
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