Bsbleg514 Assist With Civil Procedures: Assessment Answers

Answer:

1. Memorandum 

Issue 

According to the case study, the issue is whether CD can claim any damages against AB’s fault to damage her car and will be the claimant lawful.

Law 

According to the case study, CD wants to claim damages for the loss of her property from AB who also driving a car. Due to the impatient of AB, he crash CD’s car by his car which makes several damages. Now CD wants to sue AB for her damages of 1969 GTO Ferrari to the value of $175,000.00. Here it can be stated that this is a case of negligence (Stewart and Stuhmcke 2014) where due to the negligence of AB he crash her car and make the damages. CD has rights to claim the damages from him.

Negligence occurs due to the carelessness of a person which causes damages to another person. The suffered person get injure or some of their properties are damaged due to the negligence. The basic concept of negligence is failed to perform the duty of care which cause damage to another person and make the injury. When the duty of care is breached, negligence has occurred.

The duty of care is breached when the person fails to act according to the duty of care which makes the negligence. In the case of D'Arcy v The Corporation of the Synod of the Diocese of Brisbane [2017] (Foley and Christensen 2016) case, it was found that the plaintiff has claimed that Spiritus which has breach their duty of care towards their employees of driving one wheelie walker. Here the negligence has been establishes due to the duty of care (Stewart and Stuhmcke 2014). Another case is The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] where it was found that the respondent has fined with several penalties due to the breach of duty of care and negligence towards to the plaintiff. The court has found guilty of the respondent for the injury which recognizes as a psychiatric injury toward the plaintiff due to the negligent of the duty of care and cause the damage.

In the case of Stokes v House With No Steps [2016], the facts has been signified the breach of the duty of care of the defendant and cause damages towards the plaintiff and make negligence. The plaintiff as claimed that she was injured in her work place while the defendant has failed to take care of her who s physically disabled and breached the duty of care toward their employee.

Analysis 

As per the case study, the basic fact of the case is AB was driving a car which is a black Porsche which registration No: ‘STUD 1. When he was waiting in the road in his car with Coronation Drive, Bulla in Newtown and indicates the lights for turning right direction. However, when the truck was trying to turn to right, AB was also followed its way. Being an impatient person, AB runs the red light and drives into the path and where his car has crushed with the car of CD. The crash was the cause of the damage of her car which is 1969  GTO Ferrari to the value of $175,000.00. CD has no insurance coverage of her car and therefore she never claims the insurance cover.  Now, she wants to claim the damages from AB.    

Here, it is stated that due to the negligence of AB, CD has causes the damages. While he is driving the car, it is his duty that he should be careful but a breach of duty has been occur which cause the damage of property of CD (Stewart and Stuhmcke 2014). When a person who driving the car has been breach his duty to drive with safety at the time of a red light but collided with another and cause damages or injury. Therefore it is clear that AB has breach the duty.

In the cases of D'Arcy v The Corporation of the Synod of the Diocese of Brisbane [2017] (Foley and Christensen 2016), The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] and Stokes v House With No Steps [2016] it is already establishes by the court that the defendants are found guilty for negligence and cause damages or injuries. According to the case study it is establishes that the lack of duty of care causes the breaches the duty and as well became the cause of several damages to her and therefore she sued the defendant which causes damages to her. Therefore, it can be stated that CD has every right to sue AB for damaging her car and make the claimant.

Conclusion

According to the case study it can be concluded that CD was in the right way while she was driving the car but due to the negligence of AB who is the defendant in this case because several damages to her property therefore she can sue him and claim the damages.

2.

The documents which have attached when CD will make the claim for the damages of the damage of the property are:

• The proper identification and address of both plaintiff and defendant because the court can sent the summons related with the case
• The actual documents of CD’s car because it will represent the validity and owner of the car
• The written statements of the quantity of the damages because as per the amount of damages the court can give the order to pay the amount by AB to CD.
• The documents of the claimant which was verified by the Solicitor because it will represent the legal value of the claim.
• The case complains documents where she has written on her own words about the facts of the case because it will be helpful for the court to understand case facts and decide the person who is guilty for the damages.
• Finally the defendant and plaintiff should present in the court with their solicitors who will interact with the Judge behalf of them.   

3.

According to the case study, it is the case of negligence. There the plaintiff will make the claim for her damages. The Civil Liability Act 2003 of Queensland gives the provision to make the claimant for her damages. The part 1 of Chapter 2 of Civil Liability Act 2003 of Queensland gives the provision of breach of duty. Therefore as per the Sec-11 give the general principals of actual causation and scope of liability. The plaintiff should liable to onus of prove for the relevant issue of causation.

As per the case study, CD needs to claim damages according to the Civil Liability Act 2003 of Queensland and as per the sec- 11 and sec-12 gives she need to prove the probability of the damages where it can be claimed. Without the probability of damages and proves, it will be difficult for her to claim damages. In deciding liability for breach of a duty, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.

4.

According to the Uniform Civil Procedure Act 1999 (Qld) of Queensland gives the power to proceed any case to the court.  In this process the solicitor will presents the facts of issues and cause of actions. The establishment of legal facts and obligations are must need to present in the case for proceeding the case. In the negligence case, plaintiff should represent the facts where the duty of care has been breached and the person who is liable for the damages.  The presentation f evidence is another important part in legal proceeding where the evidence should be relevant o the case. The evidence can clear the facts of the issues and help to decide the culprit who is guilty for the relevant case. Prove of onus or burden of proof must introduce in support of the case. The plaintiff needs to prove the facts where the probability of breach of duty of care has been occur. The plaintiff’s witnesses also make statements and other written or documentary evidences must be present in the court and process as per the rules.

5.

Evidence with proper and relevant issues is one of the ways which make the case successful. An evidence can be present in written or verbally. Sometimes documents, sound and video recordings and witness statements are also uses for proving of facts. The evidence process is mainly occurring at the time of trial process. Good evidence which is relevant to the case can help to change the way of proceeding of the court. Therefore it can be stated that sufficient evidences can be produce in the court determine the proper findings.

The questions

• Details of the case facts
• Position of the client
• Position of the opposite party
• The condition and value of the damaged property
• The amount which should be claimed for the damages of the client.

References

D'Arcy v The Corporation of the Synod of the Diocese of Brisbane [2017] QSC 103 (Supreme Court of Queensland, Byrnes SJA, 31 May 2017)

Foley, M. and Christensen, M., 2016. Negligence and the Duty of Care: A Case Study Discussion. Singapore Nursing Journal, 43(1).

Gray, A., 2016. Liability of police in negligence: a comparative analysis. Tort Law Review, 24(1), pp.34-62.

Stewart, P. and Stuhmcke, A., 2014. High Court Negligence Cases 2000–10.

Stokes v House With No Steps [2016] QSC 79 (Supreme Court of Queensland, Jackson J, 11 April 2016)

The Corporation of the Synod of the Diocese of Brisbane v Greenway [2017] QCA 103 (Supreme Court of Queensland, Court of Appeal, Morrison, McMurdo JJA, Bond J, 26 May 2017)

Velasco, J., 2014. A Defense of the Corporate Law Duty of Care.