Referencing Styles : Not Selected CASE 1. Give an opinion as to whether or not the defendants in the following example would be considered negligent in their duty of care to road users. Mr Burch died when his vehicle was swept off a floodway in the Shire of Yarra Ranges (YR). The defendants were the Shire of YR and Quality Roads Pty Ltd. The Shire was responsible for the construction, maintenance and repair of roads, bridges and the like within its boundaries and for taking measures to ensure the safety of the travelling public. The Shire claimed it had contracted out these functions to Quality Roads. The contract did not empower Quality to close roads but it was empowered to deal with emergencies on roads. The floodway, constructed in 1991, took the form of a depression in the roadway over which, at times, water from Brushy Creek flowed. Three 900mm concrete pipes set underneath the floodway were capable at most times of carrying the water in the creek. 20 metres downstream was a farm crossing, comprising dirt laid over a barrel drain of 2 m diameter. At the time of the accident there was a sign; “ Road subject to Flooding. Indicators show depth.” The indicators, located at about the mid point of the floodway showed depth above the road in 200 mm gradations and were red-lined at about 1.8m. There was anecdotal evidence (but no Shire records) that in the past vehicles had been swept off the floodway, ending up at the barrel drain. The defendants claimed that the deceased knew the road well and would have seen the flooding, as it was broad daylight. The deceased’s car was found nose first at the barrel drain and his body was found the next day. Reference: Burch v Shire of Yarra Ranges & Anor (2004). Victorian Supreme Court 437. 4 November 2004 CASE 2. Give an opinion as to whether or not the employer in the following example would be considered negligent in providing a “safe place and/or system of work”. A workman, Castro, injured his back resulting in a permanent disability when he slipped and fell while carrying a very heavy oxygen bottle (about 146 lbs) which he needed to use on site some 20 or 30 yards away. Castro had not been working as a member of a team and had been moving the oxygen on site without assistance during a period of two weeks he had been working there. Because of the nature of the site, it was impracticable to use a trolley to move the bottle. He was carrying the bottle across his arms, which were held in front of his body when he slipped and fell on his back, the bottle falling with him, and to one side of his body. The defendant stated the bottle was too heavy for a man to carry and that there were other workers on site who could have provided assistance.