BSBLEG514 Assist With Civil Procedures

Question:

AB was driving his Porsche black registration No. ‘STUD 1″ along Coronation Drive Bulla in Newtown. When he indicated that he wanted to turn into the right-hand turn lane, AB turned right and went straight into Banks Street with the intention of having a cup of coffee at one of the cafes.

The turn is governed by a right turn arrow signal and AB is in third place behind a large delivery truck, and another vehicle.

After a while the right turn arrow turns to green, and the delivery truck starts moving slowly along with the car behind it and AB.

As the truck turns right, the green arrow changes to amber and then turns red. AB must still make his turn.

Impatient, AB ignores the red light to drive into the path a car driven by CD.

CD cannot stop in time, and crashes into AB’s car. AB suffers substantial property damage to her 1969 GTO Ferrari.

CD then contacts your law firm as a Paralegal. CD explains to the solicitor that neither the cars in the accident were insured. CD asks the solicitor for his advice about how to proceed.

After getting instructions from the client the solicitor calls you and gives you an overview of the situation.

He tells you that he wants to see you handle the matter and prepare all the pre-trial proceedings to satisfy the client.

As the Mt Gravatt Legal Centre’s Solicitor, you have been asked to complete the following. You will need to attach a Memorandum of 800 words outlining, discussing, and describing the documents necessary to begin this matter.

You are allowed to access relevant documents only from the state that is covered by your Claim.

Statement of claim

Notification of intent

Counter-claim and defence

Reply

These tasks are for students:

Find each document and attach a copy of the memo as a template.

Statement of claim

Notice of intent to defend

Counter-claim and defence

Reply

Analyze the purpose of each document

Find the appropriate state civil procedure rule relative to the document. Determine what information is needed for each form.

Explain the time limitations for the creation of documents and the service of each document according to your state’s civil procedure rules.

Determine if the client is allowed to initiate proceedings.

You will provide a summary of whether or not you consider there is enough evidence for proceedings to be initiated. We will also need any additional information from the client.

Give the Solicitor at least five (5) questions that the client must answer in order for us to gather more information.

Answer:

Memorandum

Issue

According to the case study the question is whether CD can sue AB for damages to her car.

Law

According to the case, CD seeks damages from AB to recover her property. AB is also a driver of a car.

AB’s impatience caused him to crash CD’s car using his car. This causes several damages.

CD is now suing AB for damages to 1969 GTO Ferrari valued at $175,000.00.

It can be said that this case is one of negligence (Stewart & Stuhmcke 2014). CD was injured in a crash with her car due to the negligence and damages of AB.

CD is entitled to sue AB for the damages.

Negligence can be caused by the carelessness of another person and causes harm to them.

The negligence causes the victim to be injured or their property is damaged.

Negligence can be defined as the failure to exercise the duty to care and cause injury or damage to another person.

Negligence occurs when the duty to care is not fulfilled.

When a person fails to follow the duty to care, the duty to care is broken.

D’Arcy [2017] (Foley & Christensen 2016). The plaintiff claimed that Spiritus had breached their duty of good care towards their employees who drove one-wheeled walker.

This case has established that the negligence was due to the duty-of-care (Stewart & Stuhmcke, 2014).

The Corporation of the Synod of the Diocese of Brisbane was also cited [2017] as another example. Here, it was determined that the respondent had been penalized with several fines for breaching the duty of care and negligently towards the plaintiff.

The court found the respondent guilty for inflicting a psychiatric injury on the plaintiff through the breach of duty of care and causing the damage.

Stokes v House With No Steps [2016], there was a breach of the duty and damages to the plaintiff.

The plaintiff claimed she was hurt at her job, and that the defendant failed her to care for her.

Analyse

The case study reveals that AB was driving a black Porsche 911 with the registration number ‘STUD 1’.

While he was waiting for his turn, AB indicated that he would be turning the right way.

AB was following the truck as it attempted to turn to the right.

Impatient, AB drives to the red light and follows the truck’s path. The car of CD has been crushed into his car.

Her 1969 GTO Ferrari Ferrari was destroyed in the accident. It is worth $175,000.00.

CD doesn’t have insurance coverage on her car, so she never applies for the insurance.

She wants to file a claim against AB.

CD is cited as the cause of the damages due to AB’s negligence.

It is his responsibility to be safe while driving the car. But, he has breached that duty and caused the property damage (Stewart & Stuhmcke 2014.

A driver who fails to follow his duty of safety and follows red light signals, but collides with another person causing injury or damage, it is a breach of his duty.

It is obvious that AB has broken the duty.

D’Arcy and The Corporation of the Synod of the Diocese of Brisbane (Foley, Christensen 2016), The Corporation of the Synod of the Diocese of Brisbane and Greenway (2017 and Stokes and House With No Steps (2016)) it has been established by the court the defendants have been found guilty of negligence and caused damages or injury.

According to the case study, it is established that the breach of duty of care caused the damages she suffered and that the defendants were responsible for the damages.

CD is entitled to sue AB and make the claimant for any damage done to her car.

Conclusion

According to the case study, it is clear that CD was following the correct procedure while driving the car. However, AB’s negligence caused her several property damages. She can sue him for the damages.

The following documents will be attached as CD to support the claim for damage to property:

For the court to send summons related to the case, it is necessary that both plaintiff and defendant are properly identified and located.

You will need the original documents from CD’s car to prove the validity and ownership of the car

The court may require the written statement of the damages amount in order to determine the amount to be paid.

Because it will be representing the legal value, the Solicitor has verified the documents of claimant.

In the case complaint documents, she writes in her own words about facts to help the court understand them and determine the victim.

Finaly, the plaintiff and defendant must present themselves before the court along with their attorneys who will act on their behalf with the Judge.

It is the case for negligence, according to the case study.

Here the plaintiff can file a claim to her damages.

The Civil Liability Act 2003 Queensland allows the claimant to sue for her damages.

The provision of breach is found in Chapter 2 of the Civil Liability Act 2003.

The Sec-11 describes the principles of actual causation, and the extent of liability.

The plaintiff is responsible for proving the relevant issue.

CD, as shown in the case study must file a claim for damages under the Civil Liability Act 2003 Queensland. As per sec-11 and sec-12 she must prove the likelihood of her damages being claimed.

It will be very difficult for her claim damages without the probabilities of damages and proofs.

When deciding liability for breaching a duty, it is the plaintiff’s responsibility to prove, on balance of probabilities all facts that are relevant to the issue.

The Uniform Civil Procedure Act 1999 of Queensland (Qld), allows any case to be brought to the court.

The solicitor will then present the facts of the case and the cause of the actions.

In order to proceed the case, it is necessary to establish legal facts and obligations.

In a negligence case, the plaintiff must present the facts proving that there was a breach of duty of care and the person responsible.

In a legal proceeding, the presentation of evidence is an important part. It should be relevant to the case.

The evidence will clarify the facts and determine the guilty party in the case.

Supporting the case must be presented evidence to support it.

The plaintiff must show that the likelihood of breach of the duty to care occurred.

The plaintiff’s witnesses must make statements. Any other written or document evidences must be submitted to the court.

One way to make a case win is by using evidence that is relevant and correct.

A witness statement or written evidence may be used.

Documents, audio and video recordings, and witness statements can all be used to prove facts.

The evidence process takes place primarily during the trial process.

The court’s procedure can be changed by good evidence that is relevant.

The court can make the right findings by presenting sufficient evidence.

The questions

Information about the case facts

Position of the client

The position of the other party

The condition and the value of the damaged property

The amount that should be claimed by the client for the damages.

Refer to

D’Arcy V The Corporation of the Synod of the Diocese of Brisbane [2017] QSC103. (Supreme Court of Queensland – Byrnes SJA, 31/05/2017)

Foley M. and Christensen M. (2016).

Negligence, Duty of Care and A Case Study Discussion.

Comparative analysis of liability of police for negligence.

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] QSC79. (Supreme Court of Queensland Jackson, 11 April 2016).

The Corporation of the Synod of the Diocese of Brisbane in Greenway [2017] QCA103 (Supreme Court of Queensland Court of Appeal Court of Appeal Bond J, Morrison McMurdo JJA and Bond J, 26/05/2017).

A Defense of the Corporate Law Duty Of Care

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