The Fantasia Surf life Saving Club Inc (Fantasia Surf Club) is a “not for profit association” which has been incorporated pursuant to the Association Incorporation Reform Act 2012 (Vic). Under its Constitution its objectives are listed, inter alia, as follows:

  • to provide surveillance services of Fantasia beaches;
  • to warn swimmers and other beach patrons of adverse weather conditions;
  • to warn swimmers and other beach patrons of sharks sightings and to take steps to evacuate the beach upon the happening of such sightings;
  • to mark out, by the use of appropriate buoys, a safe and well defined  area for  use by swimmers;
  • perform rescue services and provide other emergency services including first aid; and
  • arrange for the transportation of any injured person to the Fantasia General Hospital for further treatment.

At the Fantasia surf beach, there is constructed a “patrol tower” which is occupied, during summer months and other hot days, by qualified surf life saving guards. These lifeguards wear distinctive caps with the club’s logo imprinted on them. When on duty, these lifeguards have ready surf life saving boats and boards, resuscitation equipment and other medical appliances ready to be put in use at times of emergency. Situated close to the patrol tower there is a notice board on which there is written the direction and strength of any wind that may be prevailing on the day and how that wind affects the beach.

Nigel Silverspoon is a lifeguard at the Fantasia surf beach in Victoria and is employed by the Fantasia Surf Club.  He, and other lifeguards, patrol the beach each summer on behalf of the Fantasia Surf Club. The actual beach area that swimmers can use is “designated by a series of buoys” beyond which it is too dangerous to swim. Strong undercurrents occur regularly in waters beyond those buoys. In fact, in the past, the area has been the scene of many drowning’s.

Stephen Constantino is a swimmer who has won a number of gold medals in swimming events in both Olympic and Commonwealth Games.

On 1 February 2012, a hot and windy day, Stephen attends the Fantasia surf beach. He ignores the notice board which warns swimmers of the particularly strong wind prevailing on that day and warning that swimmers are to be careful not to swim beyond the designated area. However, the beach is not closed. Stephen swims within the designated area of the beach but finds that this is not challenging enough for him. He decides therefore to “venture out a little more” to see if he can meet whatever challenge the sea can throw him. He soon finds himself outside the designated zone. He notices a sign which reads as follows:

  IF YOU CAN READ THIS SIGN, YOU ARE SWIMMING OUTSIDE THE DESIGNATED AREA AND YOU ARE THEREFORE STRONGLY URGED TO IMMEDIATELY MOVE BACK TO THE PROPER AREA FOR YOUR OWN SAFETY. NO LIABILITY CAN BE ACCEPTED FOR ANY INJURY, LOSS OR DAMAGE ARISING FROM SWIMMING IN THESE WATERS. 

BY ORDER,

FANTASIA SURF CLUB 

Stephen reads the notice but nevertheless proceeds to swim in waters beyond the sign.  Nigel notices Stephen in such waters and immediately swims out to him.  The following conversation takes place between the two:

Nigel:      Can’t you read the sign?  It is too dangerous to swim here because of the strong undercurrent, so I urge you to swim within the designated area. 

Stephen: Look, mind your own business.  I know what I am doing and I reckon I can answer any challenge the sea throws up to me.  After all, I am a world champion swimmer.

Nigel:      I don’t care who you think you are or what you think you can do.  I urge you to swim where I tell you.

Stephen: Won’t you go away and leave me alone?

At this time Nigel turns back to resume his patrol on the beach.  However, as soon as he reaches his patrol point, he notices Stephen yelling for help and is in obvious difficulty.  A strong undercurrent is pushing him further and further away from the beach.

Nigel quickly summonses a number of other lifeguards who put into use the surf rescue lifeboat.  However, only after 10 metres of travel, the motor in the boat stalls and it soon becomes obvious that the motor has run dry of petrol.  It takes approximately 3 minutes to re-fuel the boat.

By the time the lifeguards reach Stephen, it is obvious that he has struggled to stay afloat and is barely conscious.  He however, survives the ordeal, but suffers a number of injuries as a result.

Stephen is employed as a swim instructor at the Fantasia Aquatic Centre earning $1,500 per week.  Because of the injuries suffered, he will no longer be able to carry out that employment and in fact, will be unable to be employed in any form of work for the rest of his life.  He is 32 years of age, having been born on the 1st June 1985. Stephen does not have a partner and has no children to support.  However, he has incurred substantial medical expenses as a result of his injuries and will continue to incur medical expenses for the rest of his life. His life expectancy is not affected by his injuries.  After the ordeal, he is hospitalised at the Fantasia General Hospital for 3 weeks.

Stephen consults you for advice with a view of seeking damages from the Fantasia Surf Life Saving Club.

You can assume the following:

  • that the Fantasia Surf Club is the only and correct defendant in the proceeding, that is, it is vicariously liable for the actions of Nigel and the other lifeguards); and
  • the limitation period expires on the 31st of January 2018.

REQUIREMENT TASKS:   TASK 1

YOUR SENIOR PARTNER (AT THE FIRM WHERE YOU ARE EMPLOYED AT) REQUESTS FROM YOU A WRITTEN OPINION AS TO THE FOLLOWING (YOU MUST INCLUDE FOOTNOTES AND A BIBLIOGRAPHY): 

  • UPON WHAT GROUND(S) CAN STEPHEN CONSTANTINO SUE? YOUR ANSWER MUST IDENTIFY THE ELEMENTS THAT NEED TO BE ESTABLISHED FOR THE CAUSE OF ACTION(S) YOU RELY UPON;
  • IDENTIFY AND EXPLAIN THE DEFENCE(S) THAT THE DEFENDANT CAN RELY UPON; and
  • THE LIKELIHOOD OF STEPHEN OBTAINING AN AWARD OF DAMAGES.

 (The Word length for this task is no more than 1250 words excluding footnotes and bibliography).  (10 Marks)                                                                

TASK 2    

YOU ACT ON BEHALF OF STEPHEN CONSTANTINO. HE DESIRES TO MAKE A CLAIM FOR DAMAGES AGAINST THE SURF CLUB BASED ON THE CAUSES OF ACTION(S) THAT YOU HAVE IDENTIFIED IN TASK 1. HE CONTACTS YOU ON 1 DECEMBER 2017 AND INSTUCTS YOU TO PREAPARE HIS CLAIM FOR DAMAGES.

PLEASE PREPARE A WRIT (FORM 5A) AND STATEMENT OF CLAIM ON BEHALF OF STEPHEN. YOU CAN MAKE UP THE INJURIES HE HAS RECEIVED AND A LIST OF SPECIAL DAMAGES THAT HAVE BEEN INCURRED BY STEPHEN AND ANY OTHER INFORMATION WHERE YOU BELIEVE THERE MIGHT BE GAPS (INCLUDING THE NAME OF YOUR FIRM);                                (10 Marks)

TASK 3

ASSUME YOU ARE ACTING ON BEHALF OF THE DEFENDANT (FANTASIA SURF LIFE CLUB). PLEASE PREPARE THE DEFENCE. YOUR DEFENCE MUST INCUDE ALL POSSIBLE DEFENCE(S) THAT YOU HAVE IDENTIFIED IN TASK 1; (There is no word limit on the Statement of Claim and Defence.) 

           PLEASE NOTE THE FOLLOWING INSTRUCTIONS:

       STUDENTS MUST ATTEMPT ALL TASKS;      

 THIS IS A GROUP ASSIGNMENT. STUDENTS MUST FORM GROUPS OF NO GREATER THAN 3 MEMBERS IN EACH GROUP. STUDENTS IN EACH GROUP MUST CONTRIBUTE EQUALLY TO THESE TASKS; 

  1. THE ASSIGNMENT IS TO BE SUBMITTED NO LATER THAN 11:59pm on FRIDAY THE 12th of JANUARY 2018. You will be required to submit via the cloud drop box;
  1. NO EXTENSION CAN BE GRANTED EXCEPT UNDER EXCEPTIONAL CIRCUMSTANCES;
  1. YOU CAN MAKE UP ADDITIONAL FACTS AS YOU PLEASE FOR THE ASSIGNMENT. FOR INSTANCE, AND MOST IMPORTANTLY, YOU CAN MAKE UP THE INJURIES THAT STEPHEN CONSTANTINO HAS SUFFERED, WHERE HE LIVES, HOW LONG HE HAS BEEN EMPLOYED,WHAT SPECIAL DAMAGES HE HAS INCURRED ETC;
  1. STUDENTS ARE EXPECTED TO CARRY OUT PRODUCTIVE RESEARCH SO AS TO COMPLETE TASK ONE;

 THE VALUE OF THIS ASSIGNMENT IS 40% TOWARDS FINAL ASSESSMENT; AND

  1. I EXPECT THAT ALL THE MEMBERS OF THE GROUP WORK EQUALLY TOWARDS THE COMPLETION OF EACH TASK.