ARBE1301 Construction Law and Legislation

Assessment Law of Tort and Property Law

Part 1: Law of Tort Case Study

Darcy Constructions Pty Ltd (Darcy Constructions) is a construction company engaged to build a new Medical School at the University. Part of Darcy Constructions' scope of work is demolishing the old Faculty of Health. The demolition is taking place during term time. Students regularly walk past the site and sometimes take a shortcut while Darcy Constructions personnel are carrying out the demolition.

While Darcy Constructions was demolishing an old brick wall at the site, a brick fell from the wall and hit Casey, a fourth-year construction management student, on the head. Casey was taking a shortcut through the site and had in her headphones listening to a lecture.

Darcy Contractions personnel were working on the other side of the wall and couldn't see Casey but had put up site fencing and a Do Not Enter Construction Work sign. Casey ended up in hospital for a month with a head injury and has ongoing headaches from the accident. This means she can no longer study construction management at the University.

Your task in this assignment is to advise the parties on their legal position (in terms of causes of action, liabilities and possible defences) based on the tort of negligence in Australia.

Outline the elements of the tort of negligence, identify the likely parties to any legal action based on negligence and explain any causes of action, liabilities and defences the parties may have under the common law tort of negligence.

Explain what the plaintiff would need to demonstrate to bring a successful claim in negligence, and explain any defences that may be available to the defendant.

Remember, you are not a Judge, and it is not your task to resolve the dispute. Simply advise the parties on their legal position under Australia's common law tort of negligence.

Part 2: Property Law Case Study

Michael is considering purchasing a parcel of land with the intention of developing it to build a 5-storey apartment block. On making enquiries, Michael is informed by the owner and neighbours of the parcel of land that they have certain (legal) rights over the land:

• The current owner tells Michael that they bought the land with the intention of extending their existing property, but due to unforeseen circumstances, they can no longer afford to do so. They must now sell the land to pay back the money they borrowed to buy the land;
• The current owner informs Michael they will only sell the land on the condition that one-storey retirement homes are built on it so they don't lose their unobstructed view;
• One neighbour of the land informs Michael that they have the right of way across the land to access the rear of their property for maintenance purposes;
• Another neighbour informs Michael that he has leased the land from the current owner to store a number of caravans and vehicles.

Explain these legal rights in terms of property law. Discuss and explain how they could be verified as existing rights in the eyes of the law, how they were likely made/formed, how (if possible) they could be removed, and discuss any possible consequences their existence may have on Michaels's development plans.

Your complete submission for Assessment should contain:

Part 1:A discussion of the elements of the tort of negligence that Casey must establish to bring a successful action for negligence, the party's positions at law, and any possible defences/mitigation that may be available to Darcy Constructions.

Part 2: A discussion of each of the claimed legal rights, identifying how (if possible) they could be verified as existing in law, suggesting how they might have been obtained, how (if possible) they could be removed, and any likely consequences they may have on Michaels planned development should he purchase the land.