Legal Assessment: Injury Caused By Broken Fence - Memorandum Of Advice

This assessment will allow you to demonstrate your understanding of the skills and techniques that we have studied during the unit.

Part: will ask you to write a brief summary of the case extract which will be relevant to the fact scenario identifying the material facts and the ratio.

Part: will ask you to write a memorandum to a senior member of a law firm in which you are working on a legal question about the fact scenario which relies on the legislation and case extract provided as part of the question.

Part: will ask you to prepare a short letter to the firm’s client recommending an appropriate course of action.

Mr Peter Yarran
30 Boolimbah Street
NARRABUNDAH  ACT  2604

24 October 2018

Dear Mr Yarran

Injury caused by broken fence

Thank you for coming to see Mr Anderson from our office.  You asked for advice about whether you could get compensation from the landlord for injuries you suffered when a fence that you were sitting on at your aunt’s house at 30 Boolimba Street collapsed.

I understand that your aunt, Carol Goodes, rents her house from Gregory Mossenson.  There is a fence along one side of the patio.  The fence is about the right height for a seat and visitors to your house have used it as a seat.  There have been termite problems with the fence and your aunt’s old landlord used to inspect it and have it treated for termites, but you don’t know if your aunt told the current landlord about that.  

At a BBQ on 20 October you were sitting on the fence. You had had some drinks.  Your friend sat on your lap while you were sitting on the fence.  The fence broke and you were hurt.  Your aunt took you to the hospital and they told you that you had broken your wrist and they took splinters out of your thigh.  You won’t be able to go to work because of your injuries and will need to see a physiotherapist.

Making a claim against your aunt’s landlord will be difficult unless there is some evidence that he knew that there were termite problems with the fence and that it was sometimes used as a seat.  However, I would recommend that we write to your aunt’s landlord about possible compensation to find out what he did know.

Peter Yarran had come to see my boss the day before with a grievous information. The persisting relationship with the landlord and with the real estate agent had been unluckily highly accompanied with stress for his aunt named, Carol Goodes. The Saturday of the previous week, she had suffered from heart attack and she expired. Peter managed to plan a funeral on the coming Friday. He further sent an invitation to me and to my boss, so that they could attend the funeral. Peter was highly touched with the fact that he was contacted by the brother of this aunt, called  Darren Narkle. Darren who as soon as he had received the news had phoned Peter.  Darren spoke of carol, who had promised to give a family photograph containing the photographs of their family along with a dining set consisting of a set of saucers and cups which she had possessed from long. However, Darren could not recall as to when Carol had promised him that, but he could remember the promise very nicely. Darren said that he would come the next Wednesday to meet Peter and also to collect the things under his name.

Peter however was not interested to handover the album and the dining set to Darren. Peter had encountered Darren only once almost three years before. At that time Peter and Darren used to be not very attached to each other. The dining set of Carol was one of her prized possessions. Peter was under the impression that he would be the successor to Carol’s album and dining set and would utilize it for his family purposes. Later, when Peter cam to meet my boss he had brought along with him a copy of the notice that he had discovered in the computer of Carol. Peter had never used the computer of Carol previously, but he had witnessed the documents stored in it to sort out the prized possessions of his aunt. The letter was addressed to Peter and it stated that Carol had been concerned of herself getting older with time. Carol stated that she was encountering a heart disease and she thought of making divisions of her properties according to her assets. She further stated that Peter was equivalent to her son. Peter had taken care of her and he always ensured whether Carol was keeping well or not. She stated that it would be justified if Peter could inherit everything possessed by Carol (Pankow). It was signed by Carol. However the copy of the notice which was brought buy Peter was not under signature of Carol. Peter stated about the date and time in the computer to be on 2^nd October 2018 and at 12.34 pm.

Purpose

Peter further stated to my boss that he recalled the day when during the dinner time, Carol had told Peter about her infliction with the doctor. The doctor had certified that she may suffer problems relating to the heart. Carol assured Peter not to get tensed about her health issues. Carol had also stated that she would assure that Peter would be entitled to everything possessed by Carol and that he would be taken care of if the situations worsened.

Peter then communicated with my boss that a person named Dipen Agarwal, who was the neighbor had come to pay a visit to Peter soon after the expiration of Carol. Dipen Agarwal clearly stated that he had, had a conversation with Carol very recently before her death. Carol had talked about her health issues with Dipen. She had also confided in Dipen about Peter admitting that Peter had been very good to her throughout. She had also stated that she would leaving a notice as to how things would work out in case of any troubles or discrepancies that would take place after her death. Dipen was under the impression that Carol was talking about a will and enquired whether Carol had performed all the needful tasks to ensure such notice would be an evidence of her intentions. Carol had stated there was still time for her death and she would ensure that all would be okay. Peter failed to discover any such notice after Carol passé away. Peter interrogated whether the note meant the means of ceasing Darren from receiving the album and the dining set of Carol.

The above situation can be resolved with reference to The Wills Act of 1968. The section 5 of the act lays stress upon the wills and the testamentary disposition of properties of a person or persons after his death. It is immaterial whether the will or the testamentary disposition was made either before or after the starting of the act. Section 9 of the wills act of 1968 states the conditions of a valid will. The section states that a will cannot be enforced unless and until it is made in writing. It must further be signed by the person making the will commonly called the testator at the foot or at the end of the document. The sign can also be made by another person who is legally authorized or under the instruction of the testator makes the signature. Such a signature must be in the presence of the person making the will. Such a signature must be authentic and should be at the presence of two or more witnesses. These 2 or more witnesses attest the making of the signature of such will one after the other. Or the acknowledgment of the will must be made before the testator and of the witness or other witnesses. There is no particular form prescribed for such attestation upon a will.

Case

Section 11A of the wills act states that a document or any part of a document which is considered to be a will or which is purported to be a testamentary disposition cannot be  enforced unless the requirements and the formalities of the act has been fulfilled. Now a situation can arise whereby the person who made the will is already dead. In such a situation, the supreme court needs to be satisfied about the true desires of the testator clearly. It is upon the fulfillment of such a condition that the document could be considered a will. To understand and form the correct opinion regarding the true desires of the testator, and whether the document or the portion of the document in issue makes a proper will certain other conditions have to fulfilled to make supreme court believe it. Proofs and evidences should be provided in support of the enforcement mechanism of such document. Other than this, proof of the testamentary transmission and the desires of the person who made the will such clear desires should be presented in the court to form an opinion regarding the person who is dead.

The above rules of the above act is essential to resolve the given problem. In the above problem, the letter discovered by Peter Yarran in the computer of Carol Goodes indicated the intentions of disposing her properties to Peter out of gratefulness. Carol clearly stated how Peter had meticulously taken care of her health. Further she stated she would sort out all the affairs regarding her properties. It was not clearly mention that she would confer all her estates to Peter. In addition to this the letter was nowhere signed or acknowledged nor attested. In such a scenario the requirements of a valid will are not completed. The letter cannot be equivalent to a will. Furthermore, when Peter spoke to Dipen Agarwal, the neighbor he gathered information that Carol had spoken high of him and appreciated him for the services he gave to Carol. But she did not mention anything clearly of transmitting properties in the name of Peter. She only wished that things would go well. Hence it can be concluded that in no way the letter found by Peter addressed to him by Carol was a will.

Regarding Darren also, the giving of dining set and the album was not a part of the will. It was only a desire of the deceased. Such a desired was neither written nor attested by witnesses nor signed. Peter had only told Daren about the gifts which he could inherit but neither promised him to give it nor made a contract or an agreement to give him. Thus, Peter was not liable to give the gifts to Darren. Had it been clearly written in the will of Carol to provide Darren with the gifts, Peter would be liable to provide the same.

Memorandum of advice

Mr Peter Yarran

30 Boolimbah Street

NARRABUNDAH ACT 2604

24 October 2018

Dear Mr Yarran

I am grateful that you visited Mr Anderson from our office. You wanted advice if you would be entitled to claim damages from the injuries that you faced during the breaking of a fence upon which you were sitting at your aunt’s house situated at 30 Boolimbah Street.

I know that Carol Goodes, your aunt took the hose on rent from Gregory Mossenson. A fence is situated along a side of the terrace. The fence possessed the accurate dimensions for the visitors to come and take seats while paying a visit to the house. However there were termites in the fence. The previous landlord used to examine the fences and applied adequate means to get them treated. But you were not aware whether your aunt had made it known to the present landlord.

At a BBQ you took drinks and sat upon the fence and you made your friend sit on your lap. The fence collapsed and hurt you. When your aunt took you to the hospital, the authorities confirmed that you had a broken wrist and they had to take splinters from your thighs. You have to be absent from office because of your weak condition and have to consult a physiotherapist.

It would be tough to claim damages against the landlord because it has to be proved first whether he was aware of termites issue in the fence and despite that it was used for sitting. Though, I would insist you to let landlord know about the injuries and ask for the adequate damages.

The landlord possesses the duty to keep the house and its parts in good condition under lease. However these duties are only towards the tenant that is your aunt and not you. Though the landlord must take preventive measures to prevent injuries to the visitors. This would totally depend upon whether he knew about the termite issue and whether it was being used as a seat.

Your drunkenness would affect the amount of damages you would receive. It could be argued that since you were not in sense due to drunkenness you did not pay heed to the condition of the fence.

To be successful, you must prove that the landlord was aware of the issues. This can be possible only when any examination has been made by him or your aunt has told him anything. We need proof to convince the landlord that he was responsible towards your injuries. You can write a letter to him stating the details and the evidences.

I recommend you that since the house is rented, a report of examination would be present. If your aunt does not have that, the real estate agent would possess it and you ask your aunt to communicate with him, that would be proof that landlord was aware of the problems. Since your aunt is the tenant, only she can claim such report. Communications can be made with the old landlord to know how much he has made the new landlord know about the current problems. Records can be taken from the people who made the termite eradication. All receipts and records must be taken from your medical authorities as it would be an evidence of the injuries you had to suffer from. You should continue your treatment and you cannot claim for the injuries that have increased due to your personal neglect.

Please assure with what you intend to proceed with.

Yours sincerely,

References

Langbein, John H., ‘Major Reforms of the Property Restatement and the Uniform Probate Code: Reformation, Harmless Error, and Nonprobate Transfers’ (2012) 8 ACTEC Law Journal 1

Pearce, Robert, John Stevens, and Warren Barr, The law of trusts and equitable obligations (Oxford University Press, 2010).

Peisah, C., et al., ‘The wills of older people: risk factors for undue influence’  (2009) 21 International Psychogeriatrics 1, 7-15.

Sawyer, Caroline, and Miriam Spero, Succession, Wills and Probate (Routledge, 2015).