Description: You are required to complete a fact pattern analysis.
Percentage of final grade: 20%
Word length: The total maximum word length for this assignment is 1500 words (i.e. your combined answer to both questions must come within the 1500-word limit).The word count does not include citations in footnotes. The word count does include headings and sub-headings.
Please do not include a title page or bibliography.
You must state your word count at the end of your answer.
Tort Law-Fact Pattern Analysis Assignment-Adelaide University Australia.
Penalties:
Late Submission Penalties
When an assignment is submitted after the due date, without an extension, 5% of the total mark possible will be deducted for every 24 hours or part thereof that it is late, including each day on a weekend and public holidays. For example, an assignment that is submitted after the due date and time but within the first 24-hour period, and that has been graded at63%, will have 5% deducted, for a final grade of 58%. An essay that is more than 24 hours late will lose 10%, etc.
Word Length Penalties
5% of the total mark possible for a written assessment will be deducted for every 100 words (or part thereof) by which it exceeds a stipulated word limit. For example, a 3,000-word assignment graded at 63% will have 5% deducted if it is between 3,001 and 3,100 words long for a final mark of 58%. If the assignment is between 3,101 and 3,200 words long, 10% will be deducted for a final mark of 53%, etc. Word limits include all words in the text, in headings, in quotations, but exclude citations in footnotes. Any separate cover page, table of contents,bibliography or list of sources is excluded from the word limit. If the word limit is misstated, this may be regarded as academic dishonesty.
Extensions: Extension requests must meet the requirements of the university’s Modified Arrangements for Coursework Assessment Policy and must be submitted through the Law School’s online form (see the ‘course information’ module on My Uni).
Academic integrity and individual work: This assignment must be completed individually and must be your own work. You may NOT talk to any person about the answers to the questions or consult with any other person when writing your answer. Please ensure you are familiar with law school assessment, academic honesty and extension policies available via My Uni and the University of Adelaide Academic Integrity Policy:
Formatting: You must submit your assignment on MyUni in either a Word or PDF file format.Please use an easily readable font (e.g. Times New Roman) in an easily readable size, such as 12-point. You may use single or double spacing.
Submission of assignment: Click on ‘Assignments’ and follow the instructions for submitting Assignment 2. Once submitted, your assignment will be run through Turnitin. This will be used to check your paper for plagiarism and for marking purposes. Your assignments will be marked electronically and returned to you electronically. There is no hardcopy submission of this assignment.
Referencing: Referencing must comply with the Australian Guide to Legal Citation (4th ed,2018).
General questions regarding this assignment must be posted to the Administrative Discussion Board on My Uni.
Marking Criteria and Rubric
Assignment 2
For Marnie’s 19th birthday, she asked her parents if she could throw a small, backyard barbecue party at their house. She told them the potential guest list of 8 to 10 of her closest friends. Marnie’s parents, Joe and Hal, had met all the potential guests previously, and felt comfortable with them coming over to celebrate Marnie’s birthday. All the guests were between the ages of 18 and 21.
On the evening of the party, the guests arrived, and a bucket was filled with ice for people to store their beverages. Joe helped Marnie light the charcoal barbecue, and then left to go inside while the young adults cooked up their food. After about an hour, the cooking was done, and the barbecue was left to cool down. Joe and Hal checked in on the party and saw everyone was having a nice time. They decided to give Marnie and her guests a little privacy, so they left the house to go to a movie.
When Hal and Joe returned from the movie it was around 11:00 pm and they could hear laughter and music coming from the backyard. They walked up to the group and saw some people dancing and others sitting and chatting. There were a few empty beer bottles lying around and a whisky bottle being passed around the group. Out of a concern to prevent
people from drinking and driving, Hal told everyone they were welcome to spend the night and could come crash inside whenever they were tired. Joe then asked if anyone was still hungry, and they all said ‘no’. Joe and Hal told them all to have a good night and then went inside and went to bed.
A couple hours later, a few people were starting to get hungry again. They decided to re-light the barbecue but were having difficulties getting it started. Marnie used the lighter fluid that Joe had used earlier, and while the charcoal was starting to smoulder a little bit, they couldn’t get it going strong enough to cook any food.
Marnie’s friend, Orlando, then disappeared to the back shed for a couple minutes before emerging with a container of petrol that was ordinarily used for the lawn mower. His idea was to use the petrol to start the fire. He splashed a tiny bit of petrol on the charcoal in the barbecue, and it instantly erupted in a large flame. The flame went out almost as quickly as it arose, and the charcoal didn’t seem to be burning any stronger. He decided to try again,and the same thing happened.
At this point, the rest of the guests were feeling uneasy about Orlando splashing the petrol,and they all urged him to stop. Despite their protestations, Orlando continued splashing little bits of petrol, causing momentary flames to flash up from the barbecue. As this went on, he was becoming less and less careful, standing closer to the barbecue. Most people moved back from the barbecue out of concern for their safety, as the flames were getting bigger. They again urged Orlando to stop what he was doing, to no avail. Orlando then poured too much at once, forming a continuous stream of petrol from the container to the charcoal. The petrol caught on fire and arced back through the stream all the way to the container in Orlando’s hand. The entire container of petrol exploded.
Trevor and Ashleigh had been standing near Orlando, as they hadn’t been as concerned as the other guests who moved far away. Orlando, Trevor, and Ashleigh were all severely injured from the explosion, and Trevor ended up dying of his injuries. Orlando survived and was later charged and convicted of manslaughter.
Ashleigh was immediately taken to the hospital where she was treated over several weeks by Dr Cheng. Dr Cheng assessed Ashleigh’s burns as encompassing approximately 20% of her body, much of which was classified as third degree (the deepest kind of burn). It became clear Ashleigh would need a skin graft to close and heal the wounds. Dr Cheng discussed the potential options with Ashleigh.
Tort Law-Fact Pattern Analysis Assignment-Adelaide University Australia.
One option was a traditional autologous split-thickness skin graft (STSG), which involves taking part of the patient’s skin from areas unaffected by the burn. This skin is then meshed to form a lattice which is then grafted onto the burn to close and help heal the wound. This is viewed as the ‘gold standard’ for the treatment of large, third degree burns, and is the most widely used treatment. There are, however, potential downsides, including the need to take relatively large amounts of healthy skin, which can be painful and can create additional wounds needing to be healed. This process can also result in significant scarring.
An alternative option is an emerging practice called cell-spray autografting technique (CSAT), which utilises a smaller portion of the patient’s healthy skin to form a solution of healthy skin cells that can be directly sprayed onto the affected area. CSAT is not yet practiced by most burn specialists, but it is growing in prominence, particularly in the United States where the technique originated. There is a small but growing number of Australian
specialists, including Dr Cheng, who have adopted the technique as their primary method of skin grafting, as it has been demonstrated in clinical trials to achieve quicker healing, less pain, and better aesthetic outcomes for patients than traditional STSG.
Dr Cheng discussed both options including their respective risks and benefits. Dr Cheng specifically mentioned that CSAT is a new technique, and as such, there may be some unknowns when compared to the more widely practiced STSG. However, Ashleigh decided that trying CSAT would be the way to go, so she consented to that treatment.
In the weeks following the skin graft, it became clear that the graft had failed. Dr Cheng wasn’t sure why the wound was not healing as he had used the same CSAT technique in other patients with very similar injuries with great success. In the end, Ashleigh needed multiple STSG skin grafts, which were made more difficult as a result of the burns essentially being untreated for such a prolonged period of time. Ashleigh needed three more surgeries than she would have needed had she had the STSG graft to begin with, and she experienced prolonged pain and an additional two months in the hospital to recover.
Tort Law-Fact Pattern Analysis Assignment-Adelaide University Australia.
Ashleigh lost faith in Dr Cheng after the failed CSAT graft and switched doctors to be treated by Dr Halani. Dr Halani told Ashleigh that she wasn’t sure why Dr Cheng used the CSAT procedure to begin with, as its efficacy on such large burns, like Ashleigh’s, was yet to be proven. Dr Halani was of the view that most doctors would only have used the traditional STSG graft in Ashleigh’s circumstances and that CSAT should be left for patients with smaller burns.
Question 1:
(a) Ashleigh wants to bring a negligence claim against Joe and Hal, however, the facts of this case do not fit squarely within the scope of an established duty category. Do you think Ashleigh can, nevertheless, succeed in arguing that Hal and Joe owed her a duty of care to prevent harm caused by the criminal actions of Orlando? Why or why not?
(b) Regardless of your conclusion on Part (a), assume that a duty of care is owed and advise Ashleigh as to whether or not you think there has been a breach of that duty and why.
Question 2:
Advise Ashleigh on whether Dr Cheng can rely on the fact that the CSAT technique was practiced by others in the field to avoid liability for the exacerbation of her injuries.
Tort Law-Fact Pattern Analysis Assignment-Adelaide University Australia.
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