Instructions to Students:
1. This assignment consists of one problem question worth fifteen marks. Your answer to this assignment is worth 15% of the total marks awarded in this course.
2. Students must work alone and submit an assignment, which is comprised of their own work only.
3. This assignment is due at 8pm on 15 September 2016 and students are required to submit their work to Turn-It-In via the link on Blackboard and hand a ‘hard copy' of their assignment with a completed University cover sheet to the lecturer during the afternoon/evening lecture class on the due date.
4. If this assignment is submitted after 8PM on the due date without an approved extension, the available marks for this assignment will be reduced by 10%of the possible maximum mark for this assessment for each day or part day that the assessment item is late. Note: this applies equally to week and weekend days.
5. Extensions will not be granted in the absence of compelling reasons.
6. The recommended word length is 1500 words. Assignments should appropriate the recommended number of words.
7. If any material is relied upon as authority for a proposition put, such material must be cited by way of a footnote or otherwise. General Bibliographical References are not adequate to comply with the above. Footnotes and your bibliography do not count as part of the word count for the assignment.
8. Your assignment is to include a bibliography citing the text or other material relied upon and is to be referenced in accordance with the "How to Reference for the Mid Semester Assignment" document placed on Blackboard by the lecturer.
9. It is expected that student will use/consider sources other than the prescribed text to complete this assignment.
Part - 1:
Assignment Question
Drew Breeze (Drew) is an American citizen who visited the city of Sydney over the 2015 Christmas New Year Period. Before he arrived in Australia, Drew searched Sydney's attractions online. While online, Drew came across the website of an organization called Sydney City Scenic Tours Pty Ltd (SCST) who conduct Sydney Harbor bridge climbs. Drew was very enthusiastic to climb the Sydney Harbor Bridge to take in the spectacular views of the city. The SCST website Drew saw said:
"the Sydney harbor bridge offers all climbers the most spectacular view of Sydney - guaranteed !!!"
When Drew arrived in Sydney hevisited the office of SCST to sign a contract and book a bridge climb the next day. On the day Drew visited SCST, there was an unusually thick fog covering the city. Drew asked Janet, an SCST employee, whether the fog, if still present in the morning, would hinder the view of the city from the top of the bridge. Drew explained to Janet how important it was to him that he has a clear view to take some photographs. Janet responded and told Drew that the fog always lifts and will definitely be gone tomorrow by the time he climbs and reaches the top of the bridge.
Drew was satisfied with Janet's response. Drew then signed the contract and handed over the sum of $490.00 to Janet to climb the Sydney harbor bridge the next morning at 8am.
The contract Drew signed contained the following clause that was on the second page:
Clause 45 - The parties acknowledge that Sydney City Scenic Tours' standard terms and conditions apply to this contract.
SCST's standard terms and conditions are permanently on display in their office. The standard terms and conditions are located in a wall near the front counter under to a coat rack that is used by staff. One such term states:
All customers acknowledge and accept that neither Sydney City Scenic Tours nor any of its employees or representatives will be liable for any injury or damage customers may suffer through any dealings whatsoever with Sydney City Scenic Tours.
When Drew arrived at 8am the next day to climb the bridge, the fog had not lifted but he remembered that Janet had told him yesterday that it would be gone by the time he reaches the top. Unfortunately when Drew and the other climbers reached the top of the bridge climb, the fog remained so thick that visibility was limited to 10 feet.
Drew was furious as the main reason he booked the climb was to see and take pictures of the spectacular city and harbor views being advertised by SCST.Drew's bad day turned worse when while descending from the apex, he slipped and fell 3 metres landing on one of the bridge's metal supports. Unfortunately, the SCST safety strap that Drew was using, which would have normally prevented him from falling so far, was badly worn and came apart when Drew fell. Drew ended up breaking his left leg and left wrist and spent some time in hospital. Drew did not have any travel insurance and his medical fees were $2,900.00.
Drew has since discovered that last weeks bridge climb was cancelled due to heavy fog that did not clear until 11am. Drew complained to Janet and requested a refund. He also insisted that SCST pay his $2,900.00 medical fees.
Janet told Drew that SCST would not be refunding Drew his $490.00 because they cannot control the weather. She also told Drew that the contract between Drew and SCST meant SCST werenot responsible to pay for the medical fees.
Drew wants to know if Janet is correct? Advise Drew.
Part - 2:
INSTRUCTIONS FOR IN CLASS EXAM:
Students are expected to answer the upcoming in class exam by using the legal problem solving technique known as IRAC. IRAC (an acronym for Issue, Rules, Apply and Conclude) is an approach to answering a legal problem question and your upcoming assessment task provides you with an opportunity to practice this technique on a simple question. Your answer should be divided into the following sub headings (Each section is allocated a proportion of your marks out of 10)
Issue: Identify and describe the legal issue. You will need to read the problem question and decide what you think is the main legal problem(s) that the person you are advising is facing.
Rules: The second step is to identify the relevant law. In the Australian legal system the law has two main sources, statute law and case law. In this problem the source of law is case law. You will need to identify the case(s) dealing with similar issues to those contained in the problem question. If you know of a relevant case, you will need to mention it asthe case is highly likely to be authority for the principles of law that can be applied to the facts to solve the problem. Often the principles will be in the form of a test which has a number of elements. You will need to apply each element to the facts. (It is useful to use a separate sub-heading for each element).
Apply: This is the section which should contain most of your writing and so is worth four marks. But if you don't get steps 1 and 2 right, all your efforts here will be wasted. So take your time to make sure that you have correctly identified the issue and the relevant law. In this section you need to explain how the law that you have identified as relevant apples to the facts of this problem. Have a look at the sample question and answer to see how this can be done.
Conclusion: The application of the law (in this case, each element of a test) to the facts above should lead you to a conclusion. The conclusion should answer the question you have posed in the "issue" section. Legal reasoning is all about argument. You will not necessarily be penalised for reaching a different conclusion to others (there are always two sides to an argument) , so long as the conclusion you have reached is supported by your argument in the "apply" section!! If you need to make any assumptions on the facts you should always clearly state the assumptions you are making.