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Bond High School Mooting 2016
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Bond High School Mooting Problem 2016, THE PROBLEM Further Rocket made no attempt to check what the group were. Carter is 15 years old and lives in Queensland Carter is active doing or whether they knew their way back. and enjoys sports including outdoor based activities such as. Quad argued in reply that Rocket s warning made clear the danger. skateboarding, of high speeds exceeding the recommended limits and that. consequently Rocket was not negligent in giving the final. Quad Bike Tours Down Under Ltd Quad is a business based on a. instructions Since they were told to make their own way back to. rural property outside Toowoomba Queensland that runs quad. the office it was clear that the speed limits needed to be followed. biking tours as well as other outdoor recreational activities The. Quad also argued that Carter was injured as a result of an obvious. tours are rated as beginner and intermediate level tours Quad s. risk of a dangerous recreational activity This would deny liability. website states as follows, even if Quad had been negligent Further Quad argued that the. Quad biking is fun easy and exciting but also with an exclusion clause was part of the contract and excluded Quad from. added adrenaline rush for those seeking more danger any liability. thrills and adventure on our Intermediate level tour. Quad concedes that if Rocket was negligent it is vicariously liable. though always in a controlled environment For fun, for his conduct. seekers of all ages 12 years and upwards 15 years, and upwards for Intermediate tours Carter concedes that if the exclusion clause on the Waiver form.
was part of the contract entered by Angela this clause was effective. The intermediate tours include a tour guide but allow participants. in excluding liability and that Angela s signature would be effective. to explore some easier tracks on their own for short periods of time. to bind Carter it is admittedly questionable whether a waiver. Carter s mother Angela decides that she wants to surprise Carter signed by a parent is in fact binding in law. with a quad bike tour After exploring the options she decides to. Carter lost his claim in the Supreme Court and appealed. book him on an Intermediate tour Carter has ridden a mini motor. bike a few times Angela books the tour on Monday online for the In the judgment of the Court of Appeal two judges Willow and. following Saturday She pays online by means of a credit card When Angel JJ allowed the appeal that is Carter won for the following. booking the website states Our tours are undertaken at reasons among others. participants own risk conditions apply, Clearly Quad owed Carter a duty of care and this is not. When they arrive on Saturday Angela signs as Carter s guardian a disputed by Quad Applying the reasonable standard of. Waiver form which contains a comprehensive exclusion clause that care of the ordinary and reasonable quad bike tour. excludes Quad from all liability including for its or its employees operator and specifically the requirements of s 9 Civil. negligence Carter is allocated to a group of five each with their own Liability Act 2003 Qld the Act we consider that Quad. quad bike The tour guide Rocket gives the group two basic Ltd has breached its duty of care We conclude this for a. instructions 1 participants should at all times follow behind and number of reasons First although the instruction to keep. stay with Rocket in single file other than when they are exploring within the speed limit was clear enough when Carter and. those parts of the course where they are allowed on their own and the other participants were on their own the instructions. 2 participants should obey all speed guides especially around were ambiguous and potentially dangerous especially for. corners the intermediate tracks have speed signs located around someone with no quad biking experience and who had. the course The group commences the tour never visited the facility No reasonable person would. have left a group of young people on their first tour on. After a successful tour lasting two hours without incident Carter. their own just because he was running a little late The. completes the last on your own part of the course and the group. risks of things going wrong in a range of possible ways. assemble together Rocket tells them That took a little too long and. were too high and could easily have been avoided The. I am running late for the next group I will head back to the office. risks were foreseeable and were sufficiently high as to. and you can all make your own way back after me I hope you all had. require Rocket and therefore Quad to stay with the. group and to ensure they safely returned Rocket, Rocket heads off and Carter is the first quad bike behind him At although experienced was driving considerably faster. first Carter rides slowly but as Rocket speeds up faster and faster than the speed recommended for the group as a whole. and gets further ahead Carter is worried about losing sight of him and set a bad example Carter did as he was told We. Carter is also not sure if he knows the way back to the office He agree broadly with the conclusion in Alameddine v. speeds up to try to stay with Rocket As he rides around a corner Glenworth Valley Horse Riding Pty Ltd 2015 NSWCA 219. with a speed guide sign of 25 km h at a speed of 35 km h as 2015 324 ALR 355 and conclude for similar reasons. indicated on his speedo and as he later conceded in evidence that the defendant here was negligent in all the. Carter loses control of the quad bike flips over and due to the speed circumstances. and angle at which he landed suffers serious neck injuries. Further we find that although the risk of driving too fast. Carter commenced action in the Supreme Court of Queensland was obvious even to a 15 year old and that quad biking is. against Quad alleging negligence and seeking damages of a dangerous recreational activity s 19 Civil Liability Act. 4 000 000 2003 Qld especially since this was an intermediate. level tour that promised thrills and adventure this. Carter argued at trial that Quad had been negligent through the. accident was not a manifestation of that obvious risk. actions of its employee Rocket because the instructions that. Carter was injured as a result of following instructions to. Rocket gave were ambiguous Carter argued that Rocket s first. stay behind Rocket at all times and it was not obvious to. instruction suggested that it was most important that they stay with. Carter as a reasonable 15 year old that this was risky. Rocket When he left them again the instructions were ambiguous. Surely we should all be pleased when a teenager follows. since Rocket told them to follow after me Since this was not part of. instructions, the easier sections of the course on which participants were allowed. on their own Carter assumed that he had to stay with Rocket. Bond High School Mooting 2016 Problem 02, Finally we dismiss the argument that the inaptly named Argue the appeal either on behalf of Quad as appellant or on behalf. Waiver form was part of any contract Angela completed of Carter as respondent on the four enumerated grounds the. the booking and payment before she was required to respondent must argue the contrary on each of those grounds. sign or had seen the form The vague reference to Ignore any issues of contributory negligence and arising under the. participants own risk and further conditions was too Australian Consumer Law. vague to incorporate the terms of the form We would. apply Olley v Marlborough Court 1949 1 KB 532 copy. attached RELEVANT MATERIALS, Alameddine v Glenworth Valley Horse Riding Pty Ltd 2015 NSWCA.
We would allow the appeal and award Carter damages of. 219 2015 324 ALR 355, Olley v Marlborough Court 1949 1 KB 532 copy attached. The dissenting judge Dracula J would have dismissed the appeal. and held for Quad in part for the following reasons. Quad was not negligent The risk posed by going along Civil Liability Act 2003 Qld. the track at speed was foreseeable and serious A 9 General principles. reasonable tour operator would have warned the, participants of the dangers of speeding but that is 1 A person does not breach a duty to take precautions against a. precisely what Rocket did His instructions were clear and risk of harm unless. unambiguous follow the speed limits When he left the a t he risk was foreseeable that is it is a risk of which the. group to return he told them to make their own way person knew or ought reasonably to have known and. back which they proceeded to do No reasonable b the risk was not insignificant and. instructor could assume that a group that has, c in the circumstances a reasonable person in the position of. successfully completed two hours without incident, the person would have taken the precautions. including being left on their own on tracks would, suddenly foolishly proceed to speed to keep up with him 2 In deciding whether a reasonable person would have taken.
Unlike the situation in Alameddine v Glenworth Valley precautions against a risk of harm the court is to consider the. Horse Riding Pty Ltd 2015 NSWCA 219 2015 324 ALR following among other relevant things. 355 Carter was 15 and not inexperienced in outdoor a t he probability that the harm would occur if care were not. activities taken, Further even if Rocket was negligent this was a b the likely seriousness of the harm. dangerous recreational activity Further losing control as c the burden of taking precautions to avoid the risk of harm. a result of excessive speed was an obvious risk and that s. d the social utility of the activity that creates the risk of harm. precisely what happened here I would distinguish, Alameddine on these grounds the tour offered an 13 Meaning of obvious risk. adrenaline rush for those seeking thrills and adventure. 1 For this division an obvious risk to a person who suffers harm is. and was designated at an Intermediate level Clear, a risk that in the circumstances would have been obvious to a. warnings about speeding were given In all the, reasonable person in the position of that person. circumstances even a reasonable 12 year old let alone. someone who is 15 would have understood the danger 2 Obvious risks include risks that are patent or a matter of. Section 19 of the Civil Liability Act applies common knowledge. 3 A risk of something occurring can be an obvious risk even. Finally and in any case Quad s exclusion clause excludes. though it has a low probability of occurring, any liability and forms part of the contract there was.
clear reference when Angela booked and paid at which 4 A risk can be an obvious risk even if the risk or a condition or. time the contract was concluded that further terms were circumstance that gives rise to the risk is not prominent. incorporated and she did not need to see those in full at conspicuous or physically observable. the time She could have refused to sign and seek her 5 To remove any doubt it is declared that a risk from a thing. money back when confronted by the Waiver but did not including a living thing is not an obvious risk if the risk is. do so She and therefore Carter agreed to those terms I created because of a failure on the part of a person to properly. would distinguish Olley v Marlborough Court 1949 1 KB operate maintain replace prepare or care for the thing unless. 532 As Denning LJ stated in that case the best way to the failure itself is an obvious risk. agree to terms is to sign a relevant document and Angela. Examples for subsection 5, did that It matters not that it was after the parties had. entered into the contract 1 A motorised go cart that appears to be in good condition may. create a risk to a user of the go cart that is not an obvious. Quad appeals to the High Court which has granted leave to appeal. risk if its frame has been damaged or cracked in a way that is. from the decision of the Queensland Court of Appeal Its grounds of. not obvious, appeal are as follows, 2 A bungee cord that appears to be in good condition may. 1 The Court of Appeal erred in finding that Rocket and. create a risk to a user of the bungee cord that is not an. therefore Quad breached his duty by giving ambiguous. obvious risk if it is used after the time the manufacturer of. instructions and then leaving the group alone by, the bungee cord recommends its replacement or it is used in. speeding off, circumstances contrary to the manufacturer s. 2 The Court erred in finding that the exclusion clause did recommendation. not form part of the contract between Carter and, 19 No liability for personal injury suffered from obvious risks of.
dangerous recreational activities, 3 Quad submits and the Court of Appeal was correct in 1 A person is not liable in negligence for harm suffered by. finding that quad biking is a dangerous recreational another person as a result of the materialisation of an obvious. activity risk of a dangerous recreational activity engaged in by the. owever the Court erred in finding that Carter s injury person suffering harm. was not the manifestation of an obvious risk in a 2 This section applies whether or not the person suffering harm. dangerous recreational activity was aware of the risk. Bond High School Mooting 2016 Problem 03, Bond High School Mooting Competition Rules 2016. 1 REGISTRATION, 1 1 Each school participating should complete the online participating students on mooting protocols and the. Carter s mother Angela decides that she wants to surprise Carter with a quad bike tour After exploring the options she decides to book him on an Intermediate tour Carter has ridden a mini motor bike a few times Angela books the tour on Monday online for the following Saturday She pays online by means of a credit card When booking the website states Our tours are undertaken at

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