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Book/movie review
22/08/2022
Question:
You will be provided with a brief from a solicitor which describes a particular problem experienced by a client. You will be required to discuss and analyse the underlying legal and/or equitable principles of the remedies available to him/her.
You have been asked by your instructing solicitor to advise on the following incident
.
Our client is Mr Se-Wan PARK of 5/20 Evatt Drive, Chipping Norton, NSW. He is 29 and arrived in Australia 4 years ago from South Korea. Mr Park has a very limited knowledge of English and our interview was conducted through a NAATI accredited Korean/English interpreter, Ms Jung.
At this stage, we are uncertain as to his residency status and will no doubt seek your advice in relation to this at a later date.
In or about May 2021, Mr Park commenced work as a bicycle courier with Jollyroo, a food delivery service. So far as we know, Mr Park received no training from Jollyroo in the Road Rules (NSW) or bicycle riding safety. Jollyroo, however, did give him some leaflets, which he thinks might have addressed these topics, but they were written in English and he was unable to read and understand them.
Furthermore, we are unaware of Mr Parks employment status with Jollyroo. We do not know whether he is an employee or a contractor. All he knows is that he signed a paper. Also, he was paid per delivery and on a Friday, he received a cash payment, which was the sum owed to him for deliveries less administration charges. Mr Park no longer works for Jollyroo and cannot find the copy of the document he signed. We have therefore requested a copy of this document from Jollyroo.
We request your advice on the liability of our client in relation to following incident.
On or about 12 noon on Saturday 31 July 2021, Mr Park was delivering an order from the Happy Viking restaurant in Newtown to an address in Enmore. He was riding on the roadway in a southerly direction along Enmore Road. At the Enmore Road/Station Street intersection he crossed over at the pedestrian crossing and began cycling on the footpath. He told us that he did this because there was too much traffic on Enmore Riad and estimates that he was travelling quite fast, about 30kph. He also told us that he had neither a light nor bell/horn on the bicycle. The footpath at this point is quite wide, about 3.5 metres.
He noticed that in front of him there was an elderly woman walking very slowly in the same direction and that there were 3 or 4 people walking towards the woman in a group. When he was within a couple of metres of the woman, he shouted out a warning in Korean and steered his bicycle to the left to avoid her. He could not go to the right because of the people walking towards them.
As he was overtaking the woman, she suddenly moved to the left and into the path of Mr Parks bicycle. Mr Park hit the woman, who fell to the footpath. The force of the collision threw him into the road and into the path of an oncoming car. The motor vehicle sustained very minor damage just a few scratches from the bike.
However, Mr Park sustained the following injuries:
fractured carpel bones in his left wrist;
cuts and abrasions;
mild concussion
The elderly woman, Mrs Gertruda Mendoza, 75, was deaf and did not hear Mr Park shout. Mrs Mendoza states that she moved to the left to avoid the oncoming pedestrians. In the fall, she sustained the following injuries:
compound fracture of the left humerus;
fractures in the left ulna and radius;
fractured left hip
severe shock.
Mrs Mendoza suffers from osteoporosis, which aggravated the injuries she sustained. Her medical reports state that a person with normal bone density would not have suffered such severe fractures.
The other pedestrians were not injured.
It should be noted that the police officers attending the scene of the accident decided that the incident with the vehicle was an unavoidable accident and that the driver was not responsible for the collision with Mr Park.
However, they charged Mr Park with several breaches of the Road Rules 2014 (NSW). In the confusion of the aftermath of the accident, Mr Park mislaid the papers the police gave him at the scene and does not know where they are now.
Could you please advise on the following:
(a) Mr Parks liability, if any, for the injuries suffered by Mrs Mendoza, given that she had a pre-existing condition and that he shouted out a warning to her before he attempted to pass her on the footpath;
(b) If Mr Park has any liability, what heads of damage could Mrs Mendoza claim;
(c) Whether Mrs Mendozas actions contributed to her injuries (contributory negligence);
(d) Whether Mrs Mendoza has any liability for Mr Parks injuries and if so, what heads of damage could he claim;
(e) The liability, if any, of Jollyroo for Mr Parks injuries and failing to provide safety training to Mr Park, and whether it has vicarious liability for the injuries of Mrs Mendoza, in the event that Mr Park was an employee which we doubt.
Also, could you please advise as to what further evidence/documents we will need to obtain.
Your timely attention in this matter would be most appreciated.
Yours sincerely,
Cherie de Bono
Rushforth, Stewit & Co,
Solicitors
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The writer is very fast, professional and responded to the review request fast also. Thank you.
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