QUESTION ONE

Read the facts below and then respond to the instructions.

The Facts
Carlos is 18 years old. He was riding his BMX bike in a Wagga Wagga skate park when he was injured in a
fall rendering him a quadriplegic.
The skate park was built by Wagga Wagga City Council as a public facility. The skate park was constructed
from concrete and comprised a series of ramps designed to encourage a range of radical skating manoeuvers.
The skate park was well maintained. However it had recently been painted by the council with anti-graffiti
paint which Carlos argued made the surface slippery. Up to the time of the painting of the skate park there had
been no reported accidents since the building of the skate park. After the painting, there had been accidents
involving BMX bike riders where medical attention had been required but Carlos fall was the most serious.
There was a sign at the entrance to the skate park which clearly stated:
This facility is available for skateboarders and rollerbladers only. Protective clothing, including
helmet, knee and elbow pads and wrist guards must be worn at all times. Skate at your own risk. Only
skate in the designated areas of the facility. Always skate carefully and within your skill level. Children
under 12 years of age are to be supervised by an adult at all times whilst using the facility.
The council had not enforced the skateboarders and rollerbladers only provision and appeared to have
acquiesced to the use of BMX bikes at the skate park.
PART 1 (15 Marks)
Carlos comes to you for legal advice. Could Carlos succeed against the council?
In your answer refer only to the reasoning and authorities contained in the judgment of Beazley JA in
Shellharbour City Council v Rigby [2006] NSWCA 308; (2006) 150 LGERA 11 [1]-[119]. Be sure to
demonstrate the legal reasoning in your answer for example using IRAC. Do not refer to any other legal rules,
either cases or legislation which you may happen to know and that are not expressly referred to in the span of
the judgment specified. There is no need to consider the other Court of Appeal judges judgments contained
within the Shellharbour decision.
PART 2 (5 Marks)
Read the provisions below carefully.
Civil Liability Act 2002 (NSW)
5F Meaning of obvious risk
(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the
circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of
occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the
risk) is not prominent, conspicuous or physically observable.
5L No liability for harm suffered from obvious risks of dangerous recreational activities

Do not open your exam paper until instructed.

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(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the
plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity
engaged in by the plaintiff.
(2) This section applies whether or not the plaintiff was aware of the risk.
The Shellharbour case facts occurred prior to the Civil Liability Act 2002 coming into operation. Provide a
brief opinion on how these provisions may have changed the outcome of the decision in Shellharbour case
had it been in force.
Your answer should include consideration of how the provision may be construed. You are not expected to be
an expert in the law of negligence. You are being tested on the application of principles you have been
introduced to in the subject.

END OF QUESTION ONE

Formal Exam Autumn 2014

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70102 Foundations of Law

QUESTION TWO
Essay question
The law should always be viewed from the standpoint of society, and not from the standpoint of the
law itself... The law is made for society, and not society for the law. The interests of society are
primary; the interests of the law secondary. Society is the master, and the law its handmaid.
LeBaron B. Colt, U.S. Circuit Judge, First Circuit, Law and Reasonableness, Address at the American Bar
Association Meeting, in 37 Am. L. Rev. 657, 674 (1903)
Discuss the comment above. Your response must be in the form of an essay with an introduction which
incorporates a thesis statement and a structure which demonstrates an understanding of how to develop and
support an argument. In your answer you must refer to at least five thematically connected readings covered
in the subject readings.
END OF EXAM

Formal Exam Autumn 2014

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