Feedback for Q1 in 2, 2020 Exam
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Queensland University of Technology *
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306
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Law
Date
Feb 20, 2024
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Uploaded by ColonelOkapi4106
LLB306 Civil Procedure Semester 2, 2020 Past Exam Feedback 1 THIS QUESTION IS COMPULSORY. QUESTION 1 (Drafting) You MUST answer ALL parts of (a) AND (b) Your firm has been retained to act for Mr Mark Morris. Mr Morris instructs as follows. On 14 August 2020, Mark met with Chris Cooler, salesman for Air Conditioning Pty Ltd (‘
AC
’), to discuss the purchase of an air conditioner for his home at 15 High St, Mt Coot-tha, Queensland 4066, a suburb of inner Brisbane. Chris recommended the Elite model air conditioner manufactured by AC. Despite the air conditioner being very expensive at $64,000, the contract of sale included all the air filters required to operate the air conditioner for three years. The air conditioner required specific air filters otherwise it would not operate. The contract also included replacement of the air conditioner if it malfunctioned within a two-year period from the date of delivery. Mark could hardly wait and both Mark and Chris signed the contract. The following morning, the Elite air conditioner was delivered to Mark’s home by Donald Driver, an AC employee in an AC truck. However, when the truck was reversing it hit Mark’s home, smashing through the wall and into the entertainment room, destroying the TV, sound system and the DVD player. Donald apologised saying that he had restricted movement in his neck as a result of an accident five years ago in which he sustained substantial damage to his neck. He said that the truck, manufactured by Zeppelin, possessed an autonomous parking functionality that he always used to enable him to park the truck safely. While the truck was backing into position to enable unloading of the Elite air conditioner, the truck’s audio warning system came on stating ‘Driver alert, resume control’, at which time Donald was distracted when trying to answer a telephone call on his mobile phone and dropped his coffee on his legs which caused him to push down on the accelerator rather than the brake. The anti-collision sensors on the back of the truck appeared not to stop the truck from hitting the wall. Mark’s home had just been renovated so he called the builder who had done the renovations and asked for a quote to repair the damage caused by the truck. Mark was provided with quote number 179 dated 15 October 2020 stating that the replacement of the wall would cost $180,000, flooring repairs would cost $56,000, replacing the TV would cost $1,500, the sound system is worth $3,000 and the DVD is worth $500. Mark had to rent an apartment for $1,000 a month for 4 months while his house was repaired but has returned home. Mr Morris now asks you to commence proceedings to recover the costs he has incurred. (a) You have been assigned the task of preparing the relevant pleadings for the client, Mark Morris, in this matter. Draft a Statement of Claim on behalf of the client, in compliance with the Uniform Civil Procedure Rules 1999 (Qld), including any damages you consider relevant. You are NOT required to draft a Claim to which the Statement of Claim will be attached. There is no need to include in your documents all of the formal, standard text that would be included in this document. Your supervising partner requests that you base this claim on general negligence law and provided you with the following information:
LLB306 Civil Procedure Semester 2, 2020 Past Exam Feedback 2 i. Air Conditioning Pty Ltd’s registered office is 122 Cooling Street, Zillmere Queensland 4034 (a suburb of Brisbane). ii. Donald Driver is 45 years old and has worked for Air Conditioning Pty Ltd for 15 years. (15 marks) (b) List any other significant details and documents which you may need to obtain from the client, or elsewhere, in order to plead more thoroughly or properly commence this action. (5 marks) [TOTAL: 20 MARKS] Feedback for Q1(a) The drafting of the Statement of Claim was done well by many students but the following were common errors: 1. Most students correctly identified the correct court, file number and Registry but omitted to include the required footer for the court document. 2. Most students identified the parties as Morris, Air Conditioning and Donald Driver, but did not include Zeppelin as a party; Chris Cooler was not an appropriate party. 3. Description of the parties was generally well done for the parties which had been identified. 4. It was not necessary to plead all of the facts leading to the contract entered into between Morris and Air Conditioning because there was no cause of action in contract. 5. Not all of the facts which contributed to the breach of duty by Donald Driver were identified and pleaded, for example, failing to take adequate precautions for the safety of the plaintiff’s residence. 6. Some students did not apply s 9 Civil Liability Act 2003
(Qld) to establish the standard of care owed by Donald and Zeppelin to Morris; Air Conditioning Pty Ltd’ s liability did not arise under the Civil Liability Act
2003 (Qld); 7. Most students did not identify liability on the part of Zeppelin the ceasing of autonomous operation of the truck, nor the malfunctioning of the truck’s anti-collision mechanism 8. Errors in totalling the damages and/or not including the rental cost as damages. 9. Not identifying the vicarious liability of Air Conditioning Pty Ltd for it’s employee, Donald. 10. More than one (1) allegation per paragraph was pleaded.
LLB306 Civil Procedure Semester 2, 2020 Past Exam Feedback 3 Feedback for Q1(b) Most students were awarded pass marks to full marks for this part of the Question. However, the most critical information required was to establish liability as between the defendants. Because the nature of the damages claimed was uncontroversial, invoices or documents supporting those claims were less relevant at this point in time. Some of the more substantial things that could have been sought included: Detail or document What time in the morning of 15 August 2020 did the delivery/collision occur? Lot and RP for 15 High Street, Mt Coot-tha. Registration, Vehicle Identification Number (VIN) and model for the truck. Has Mark paid for the air conditioner? Could use a set off. Address where Donald Driver lives. Donald Drivers driver’s licence details. Any CCTV footage of the event. Any witnesses to the event, especially to Donald’s apology and explanation for cause of his actions. Details of Donald’s previous accident and whether his incapacity impacts on the company’s negligence in allowing him to drive. What type of business organisation is Zeppelin? Whether there was a fault in the autonomous parking system. Whether the requirement for the driver to take over control of the truck was as a result of correct functionality. Whether the autonomous parking functionality operated correctly. Why the anti-collision mechanism did not operate. Clarification of the final paragraph in the facts. It appears that Mark has returned home so it’s unclear if the unused rental of the apartment can be refunded as this will impact on damages claimed. It might be that Mark has returned home but will return to the apartment once the repairs start. ACN for Air Conditioning Pty Ltd. Evidence required to rightfully plead in the alternative, that the third defendant is strictly liable for the plaintiff’s loss and damage pursuant to Schedule 2 of the Competition and Consumer Act 2010 (Cth), the Australian Consumer Law
, s 138 because the Truck’s anti-
collision system had a safety defect.
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