Reference no: EM133678941

Principles of Torts A

TORTS LAW: Memorandum of Advice

Problem Scenario

Hermy lives with her husband Rod in a house in suburban Sydney that Rod leases from the owner Harri. Hermy works from home operating a catering business supplying Indian cuisine for events and celebrations. In an effort to enhance the flavour of the biriyanis she cooks (a type of flavoured rice dish) Hermy grinds her own spice mixes using a large cylindrical closed spice crusher (into which she pours the original ingredients).

Although the device is silent, its pounding and crushing movements (inside the cylinder) generate vibrations which are felt by her neighbour to the west, Drako, when he tries to sleep at night (Hermy often grinds her spices after hours at night). Moreover, Drako has noticed that the cooking vapours from Hermy's Indian cooking often condense in oily biriyani flavoured droplets on Drako's clothes drying on his clothes line creating stains that cannot be removed from his fine expensive Italian shirts. Drako, who was raised on an English diet, cannot abide the smell of curry and incensed by the pungent aromas of a chicken biriyani then visits Hermy to complain lamenting, I hate this dirty curry smell. Why can't you eat proper food like normal people? Just make some roast chicken instead.

Drako also requests Hermy to remove a large dead tree growing on her property near the fenceline to mitigate any bushfire hazard to his land and as an act of goodwill lends Hermy his heavy-duty axe (a family heirloom given to him by his father) to chop down the tree saying,
Hermy you're welcome to borrow my axe to cut down that tree yourself but just ensure that you don't lend it to anyone else at all.

Hermy then lends the axe to her gardener Mr Dobby to cut down the tree. Mr Dobby only chops down part of the tree with the axe and then returns it undamaged (and in its original condition) to Hermy as he has received a better offer from another customer, Harri, to undertake gardening work at Harri's house instead.

Desperate for additional income, Hermy also works from home as a ‘remedial massage therapist'. Unfortunately, Viktor, the owner of the land next door to the east of Hermy's house has engaged Bagman's Builders Pty Ltd (BB), a construction company, to construct a large new 3 storey house for him. Hermy is concerned that the noise from the construction work during the day will deter her clients from engaging her services providing a therapeutic massage.

Hermy also notices that a large crane is being used to move rock from the excavation next door. The crane swings over Hermy's property (over both the roof of the house and the garden) and she is afraid it will cause severe damage.

Hermy asks Bagman, the crane driver on the job next door (and also the owner of BB), to stop swinging his crane over her property but in response he says,
I will do whatever I want and I have a job to do here. You ought to take a chill pill and
if that doesn't work I'm sure I can fix you up good sometime.
Viktor - Hermy's neighbour - is also one of Hermy's clients and is personally offended by Hermy's complaints to BB. During his next therapeutic massage session with Hermy in a room inside Hermy's house, Viktor rebukes Hermy for her complaints saying,
How can you whinge about me when my patronage pays your bills? You really need a backhanded smack in the face to bring you back to reality.
Hermy responded by saying,
I don't need to put up with this I'm going outside for some fresh air.
However, as Hermy went out of the room she locked the room door behind her without Viktor noticing (although if Viktor had found himself locked in the room he could have escaped by crawling through the air conditioning ducts which led outside the house).

While Viktor is in the room alone he then notices a $100 note laying on the floor (which unbeknownst to him had actually been dropped by an unidentified client whom Hermy had previously massaged in the room) and picks it up to keep it for himself saying
Finders keepers
Hermy then called the police on her mobile phone and asked them to attend her residence as she was concerned that the situation might become violent.
After calling the police, Hermy then unlocked the room door and waited in her front yard for the police to arrive. Viktor, noticing that Hermy remained outside the premises walked up to Hermy on the lawn and continued to criticise her ineptitude. Hermy became increasingly irritated by Viktor's conduct and said to him,
I am going to call my husband and ask him to break your jaw one day while you're
walking in the street so that you can stop making such a nuisance of yourself.
Hermy was further incensed when Viktor laughed in response and said,
Go ahead and keep on talking woman, I'm not afraid.
Although Viktor was not afraid, he noticed that Hermy seemed agitated and expected Hermy to attack him at any moment. Hermy then became increasingly angry and kicked Viktor in the groin.
Viktor, concerned that Hermy was going to attack him again then picked up a nearby broomstick and smashed it into Hermy's face causing it to bruise. Viktor then returned to the land that he owns next door.
In the interim, Hermy's husband Rod realizes that the rent for leasing the house from Harri is due the next day. In an effort to raise the required funds, Rod then pledges the ornamental golden statue of a toad that his friend Nevile has left with him for ‘safe keeping', as security for a loan from a local pawnbroker planning to repay the loan from the Pawnbroker and recover possession of the statue later in the week once he receives his regular salary from his employer.
As Rod is leaving the Pawnbroker he unexpectedly bumps into Harri and Harri notices that Rod, visibly suffering from the effects of a severe and highly infectious new strain of influenza,

is wearing a precious cloak that Harri had lent Rod to wear and is even blowing his nose on
the cloak itself. Rod, recognising Harri's evident horror then apologetically says:

Oh Harri mate, sorry I couldn't even find a handkerchief because Hermy is so busy at home and this flu is killing me. Don't worry, I'll dry it out in the sunlight before I return it to you.
Later that evening, concerned for Rod's welfare at home, Harri opens the closed but unlocked gate between the front yard and the street of the house in which Rod and Hermy live and walks down the footpath that leads to the front door. However Harri, eager to observe Rod and Hermy without interrupting their routine, does not knock on the front door but instead leaves the path and walks across the lawn so that he can peer through a window pane into the dining room of the house.
Noticing that Harri is peering into the dining room, Hermy irritated at being disturbed during dinner opens the front door and yells
I never invited you here Harri. Just because you own this house it doesn't mean you can
come where whenever you want. Go away and leave our home!

Rod, eager to preserve his friendship with Harri then emerges from the house and quietly whispers to Harri
Don't worry mate, just ignore Hermy. You're my friend and you're always welcome
here at any time so please make yourself at home - after all it's your house.

Harri then then walks around the front yard for another 10 minutes suspiciously peering into the house through the windows after which he leaves the property.

Question (i.e. Instructions)

Hermy approaches your supervising Partner for legal advice.
Prepare a Memo of Advice to your supervising Partner in which you advise your supervising Partner concerning any rights and liabilities in tort law which any of the parties may respectively possess or owe in relation to any other relevant parties.

Do NOT discuss negligence or defamation (i.e. confine your advice to material scheduled between Weeks 1 - 9 inclusive)

The aims of the Memo of Advice are to:

improve your ability to read and analyse a torts based hypothetical problem question;

develop your legal writing skills, in particular your ability to provide clear, concise, structured and analytical written legal advice to a client in response to a standard problem scenario;

develop your ability to think critically in clearly identifying relevant legal issues in a problem scenario, apply the relevant common law to the facts supplied and provide a clear legal opinion or recommendations in response to your client's legal position and concerns;

improve your ability to produce written legal analysis that complies with the Australian Guide to Legal Citation;

enhance your understanding of way in which the common law is developed by the jurisprudence of superior courts;

develop your ability to locate and use legislation;

develop your ability to identify and analyse judicial use of aids (intrinsic and extrinsic) to statutory interpretation of the Civil Liability Act 2002 NSW;

develop your own ability to analyse the judicial deployment of interpretative techniques to the Civil Liability Act 2002;

develop your ability to convincingly argue in support of a position taken on a particular legal issue.