11435 Torts law Memorandum of Advice Assessment

You are a junior lawyer and work for a busy local law firm here in the ACT. Your (rather stressed) Senior Partner has asked you to prepare a Memorandum of Advice to them, based on a rather unusual set of instructions that a representative from the ACT Hospital has presented to your firm.

The local ACT Hospital has had a busy day.

On Monday 13 October 2021, during visiting hours, Daniel arrived at the hospital to visit his sibling, Lachlan, who was recovering from minor knee surgery. Daniel told Lachlan that while they were being prepared for surgery, their partner Katherine had eloped with their best friend, Andrew. Lachlan was outraged.

They immediately called Samanta and when she picked up, they swore at her and told her “you just wait until I get my hands on you, not even this surgery will stop me, I will ensure no person will ever want to look at you again”. Ignoring the hospital staff and Daniel’s protests, Lachlan leapt from the bed and began to hobble towards their house (which was not far from the hospital). On the way out, Lachlan ran past a food trolley and took a plastic fork “for protection”.

As Lachlan was running through the hospital, a security guard saw them and called the police. Lachlan ran out of the hospital and upon hearing the police sirens, ran straight onto a neighbouring property and through the open door of that house. The owner of this house, Nicole, had just stepped outside to catch her pet pig Pepper, who had escaped onto the street without a lead. Lachlan hid in the kitchen underneath the sink. Police searched the area and witnesses on the street reported seeing them run inside the house.

Two police officers, carrying firearms as permitted by law, arrived at Nicole’s house. They paused at the open door to check whether it was all clear to enter, and then one of them, Constable Barter, entered the house.

Suddenly Lachlan leapt out of the kitchen and ran towards Constable Barter, brandishing the plastic fork. Constable Barter, knowing that the hospital escapee had taken something from the hospital, but not quite able to make out that it was a plastic fork, promptly took out his gun and shot Lachlan in the knee that had just received surgery, incapacitating them. Lachlan fell to the floor, hitting their head on the corner of Nicole's marble benchtop and fell into a coma. Lachlan has not awakened from his coma.

As soon as the call had gone out to the police, reporters from the Gazette of Skyphew, a local newspaper, were on the scene, in the street in front of Nicole's house, as well as in a helicopter which was hovering 20 meters directly above her house, filming the police operation and making a considerable noise. Nicole returned to her house, pig in her arms, to see Constable Barter leaving her property, the unconscious Lachlan being taken out in a stretcher, and the helicopter hovering above her house. She was furious that all of this had taken place in her home which she revered as her sanctuary.

Meanwhile and back at the ACT Hospital, Dr Shingles was getting ready for a surgery. He saw his old friend and mentor, Dr Pox, entering the locker room. Shingles had not seen Pox in some time and was overjoyed to see him again. He approached him from behind and slapped him on the back with such force that Pox toppled over. This caused him to fall over, breaking his glasses and scratching his hand. Shingles was mortified and promised to get Pox a free pair of new glasses through his optometrist connections. Pox did not care so much about the glasses as he did about the shoulder pain and the cut he has as a result of the forceful slap.

On the other side of the hospital, in the orthopaedics department, Dr Measles was having some difficulty examining Thomas, a profoundly energetic four-year-old who had a serious problem with his ankle. Thomas would simply not sit still and was waving his arms about, almost knocking over medical equipment. His mother, Susan, had to leave the room temporarily just to take an important phone-call. Upon her return to the room, she discovered an exasperated Dr Measles slumped in his chair and there was a loud banging coming from the wardrobe. Susan unlocked the wardrobe, and out leapt Thomas. Thomas was visibly distressed and started running frantically around the room. Dr Measles explained to Susan that he had had no choice but to lock the child in the wardrobe, for his own safety, as he could not control him; it was for less than a minute, and the wardrobe was larger than normal, and had a light inside it.

Dr Measles feared Thomas would injure himself which is why he locked the child in the wardrobe. Susan was enraged and was already considering how best to sue Dr Measles for this most heinous action. Dr Measles, anxious about the impending lawsuit, decided to go outside and smoke a marijuana joint which he keeps for anxiety spikes. As he stepped outside to smoke, his colleague Dr Scratch came around the corner and inhaled the smoke from Dr Measles’ joint.

Being allergic to marijuana, Dr Scratch immediately started have difficulty breathing. Realising what had happened, Dr Measles, with his nerves already on edge, fainted from the stress and it was some time before someone entered the outdoor area and came to Dr Scratches aid.

Discuss the likelihood of success of any possible actions in trespass that arise from these facts. Students will need to discuss negligence within their answers but are not to include discussion on remedies or damages.