Bernard was a young lawyer who had recently started working at Rumpole Partners after returning to Australia on completion of his LLM in the UK. During his time in the UK Bernard made many wonderful friends from all around the world, and many wishful promises were made to stay in touch after graduation – though all knew that they would rarely see each other again. Bernard was delighted, then, when one of these friends, Ingrid from Sweden, contacted him to tell him that she was in town for a short holiday. Bernard managed to get some time off over the weekend Ingrid was in town, but was otherwise flat out with work. During lunch on Sunday, Ingrid expressed an interest in seeing some of the Australian bush. Bernard said that he might be able to put her in touch with a mate of his, Chris, who was an experienced bushwalker, and had previously worked as a tour guide. When she got in touch, Chris told Ingrid that he would be happy to take her on a guided bushwalk through the nearby Cascading Waters National Park, and given that she was one of Bernard’s friends, he would be happy to do so for no more payment than a case of beer. Ingrid happily agreed to these terms, particularly when Chris told her that he would organise everything and she only needed to bring comfy walking shoes.
On the Tuesday morning Chris picked Ingrid up and they drove to the National Park. Chris handed Ingrid a backpack with water and some snacks, and slung on his own backpack, saying that they were all set with everything they needed, including emergency packs. Ingrid took him at his word, and did not think of it further.
The weather was perfect for a walk, with a cool gentle breeze and light cloud cover. Ingrid and Chris enjoyed a pleasant morning, with Chris pointing out local landmarks, flora and fauna, and entertaining Ingrid with tales of the local bush. After a light lunch, they began their walk back to the car. However, as they were walking through a grove of towering eucalypts disaster struck. With a single loud crack as the only warning, one of the eucalyptus limbs suddenly fell crashing to the ground. The limb hit Chris on the head, knocking him unconscious, and landed on Ingrid’s leg, trapping it and breaking her ankle. After the initial screams of pain, Ingrid remembered the talk of an emergency pack and managed to grab Chris’s backpack. Unfortunately, Chris had forgotten to put into the backpack the emergency pack – the contents of which included a first aid kit, CB radio and smoke flair. Ingrid had no idea what to do, nor whether there may be anyone else about. She thought she may be able to attract other walkers to help if she screamed out. Luckily after 15 minutes Jim and Tony, heard her and came to investigate. After seeing the situation, they promised to go get help. Unfortunately, Jim and Tony had been drinking heavily, and after 20mins of walking back to their campsite, forgot all about Ingrid and Chris. Satisfied by the mistaken belief that help was on its way, Ingrid had ceased her shouting, and thus half an hour after the accident a ranger, Simon, passed within 100m of the accident site without realising there was anything amiss.
Night fell, and Ingrid was still trapped beneath the tree, trying to ration the water and food, yet now delirious with pain. Chris had briefly regained consciousness, but was very groggy and had soon fallen into a restless slumber. When they had not returned by 10pm and were not answering their phones, Bernard contacted the police. A patrol car happened to be in the area of the park, and reported that there appeared to be an abandoned car in the carpark that matched the description of Chris’s car. The police contacted the local park ranger Simon, who suggested that there may have been an accident on the walk, and suggested a search be conducted. As first light rose, the rangers and police began a search of the park and within an hour had located the shivering and deeply distressed Ingrid and Chris, who were both rushed to hospital.
Chris had suffered a major concussion, and had to remain in hospital for a fortnight. Ingrid had a broken ankle, fractured ribs and bruises, and was deeply traumatised. The whole ordeal, particularly the night spent in the dark bushland, left her very deeply shaken, and she began to suffer severe anxiety and depression. This was exacerbated by the news – which emerged in media reports of the incident – that the reason Simon had been so quick to identify the possibility of an accident was that the Department of Parks, who administered the National Park, had been aware that several of the eucalyptus trees had been dropping branches. Indeed, the Department had received a report only the week before the accident that an outbreak of borer weevils had been causing disease in local eucalypts, dramatically increasing their tendency to drop branches. However, the Department had not yet acted on the report, nor responded in any way to the threat posed by the eucalypts.
Bernard suggested to Ingrid that she seek legal advice about any legal claim she may have arising from the incident, and she has come to your firm for such advice. Your senior partner has asked that you provide a short advice outlining any claim Ingrid may have in negligence against any of the persons involved in the incident.