Remedies – Breach of contract

INSTRUCTIONS

Please read the two question scenarios below and answer with the information provided.

It is IRAC method and requires AGLC4 as reference and NO bibliography required.

NO RESEARCH REQUIRED – information will be given

Please requires information if any of it is missing.

Question 1 (15 marks)

1. Ann lives on a five-acre property in the country. Behind the property is a popular swimming hole. The swimming hole can be accessed by a bush track that is about 2 km long and which has an entry point on the main road. Cutting through Ann’s property provides a significant short cut.
2. A wood paling fence surrounds the property. One summer, after noticing a high number of people jump the fence to reach the swimming hole, Ann had large signs erected that say, ‘Private property, do not enter’. Generally, no one has damaged the property in entering but it really annoys Ann who is someone who values her privacy.
3. Despite the signs, two local men, Ernie and Bert, enter the property on 1 August 2016 by jumping the front fence. Whilst they have taken this short cut plenty of times before, on this occasion, they make their way across the front yard and in doing so, they unintentionally trample a huge new garden Ann has just planted. They also destroy seven collector edition garden gnomes which they think are stupid and ugly.
4. Whilst they could make their way to the back fence easily enough without passing by the house, they choose to go up to the house and spend a few minutes peeking through the windows. Finally, they observe Ann sitting on the lounge watching television. They start laughing at Ann and saying things like ‘Hey lady, I’m coming back and I’m going to get you… when you least expect it…I’m going to get you…’ As the window is open, Ann hears and sees them. She is incredibly startled and screams.
5. Ernie and Bert run through to the back yard and jump the fence onto the walking track to the swimming hole. In jumping the fence, once of them has trouble getting over and ends up toppling a portion of the fence. They run off laughing.
6. Ann was so scared by this event, that she has trouble sleeping and is very anxious and nervous when she is on her own. She has sought treatment from her GP who has prescribed sleeping tablets and some anti-anxiety medication. The GP believes Ann is suffering from a form of post-traumatic stress but is confident that she will recover with no long-term consequences.

Advise Ann on the remedies which may be available to her. In doing so, make ensure you address the following:

1. (d)  Identify and describe the remedies that may be available to Ann, including their purpose and quantum, if relevant.
2. (e)  Address the issues of causation, mitigation and remoteness of loss as they apply to these facts.
3. (f)  The limitation period and when it will expire.

Support your answers with relevant case law or legislation and identify any assumptions you have made.

Question 2 (25 marks)

1. In March 2017, 42 year-old school teacher Marcia Brady was shopping at Macy’s supermarket in Sydney. When reaching for a mango in the fruit and vegetable section, Marcia slipped over and broke her hip.
2. Earlier in the day, a yellow warning sign was placed near the mangoes after a child spilled apple juice all over the floor. Before it could be cleaned up, a Macy’s worker assigned to that section put the sign away because they could not see any spillage on the floor. Accordingly, the apple juice remained on the floor and this caused Marcia to slip over.
3. Marcia underwent surgery to have her hip fracture reduced with metal pins and plates, and was in hospital for three weeks. Whilst the surgery went well, Marcia suffers from residual impairments. She has chronic aching in the hip area that is worse in the winter. She cannot sit or stand for prolonged periods of time, she cannot bend and pick up objects greater than 5kgs, and she has difficulty with doing housework and gardening.
4. Prior to this fall, Marcia enjoyed good health and was a keen bike rider. She has not ridden since the fall and has gained around 25 kg in weight. A married woman with two children, Jane (DOB: 4.1.15) and Julia (DOB: 18.3.13), Marcia was the primary carer of the children and also provided domestic care to her mother-in-law, Sylvia who is in her 80’s, lives on a large house nearby, and suffers from multiple health issues. Marcia used to provide four hours of care to Sylvia on both Saturday and Sunday (eight hours a week) mainly in the form of housework and gardening.
5. Since the accident, Marcia has been able to look after the girls, but it has been very difficult. Her husband Simon provides some help but she could definitely benefit from assistance with child care and heavier household tasks at the rate of around two hours per day. She has also been unable to provide care to Sylvia and Sylvia has had to pay for replacement care at $40 an hour, which is the standard commercial rate for domestic assistance.
6. Since April 2017, Marcia has undergone physiotherapy and hydrotherapy fortnightly at a cost of $100 for each session. Her physiotherapist believes her impairments and therapy needs are likely to be life long, and may double in about 20 years when arthritis will likely set in due to the hip fracture. She takes pain medication at a cost of $50 per month.
7. In December 2017, Marcia is diagnosed with chronic major depression. She comes under the care of psychiatrist Dr Alan. Dr Alan believes her prognosis is ‘guarded’ and believes he will need to continue to consult Marcia monthly for the next few years at least. He wants to prescribe medication for Marcia but Marcia is opposed to it. She is determined to try and improve without drugs and rely on her inner strength, but consults Dr Alan monthly from January 2018 at a cost of $150 per session.
8. In January 2019, Marcia’s third child, Joan, was born. With her pain and depression, Marcia and Simon hire a nanny to assist with the increased workload. The nanny is paid $35 an hour and works three hours a day, seven days a week.
9. By November 2020, Dr Alan maintains that Marcia needs ongoing monthly consultations for another two years at least. He believes medication will reduce the frequency of consultations to every three months. The cost of medication would be $100 per month. Martha continues to refuse medication.
10. Marcia comes to see you on 16 November 2020 for preliminary advice. She has never consulted with a lawyer before.

Assume that Macy’s breached their duty of care to Marcia. Advise Marcia of the remedies that may be available to her. In doing so, ensure that you address the following:

• Identify and describe the types of damages that may be available to Marcia including their purpose.
• Provide a preliminary opinion on quantum detailing each of the heads of loss and setting out your calculations.
• Address the issues of causation, mitigation and remoteness as they apply to these facts.
• The limitation period and when it will expire.

Support your answers with relevant case law or legislation, identify any assumptions you have made, and include your calculations.