15Marks

Russell is a signwriter, and spends much of his time driving to and from various commercial jobs around the city. He is a very talented and artistic tradesman and is in high demand for both short-term and long-term projects.

Last week, on the way to a job, he stopped for lunch at Bonanza Burgers, a fast-food restaurant. After parking his van, he started walking across the carpark towards the restaurant when his telephone rang. Seeing that it was one of his most important customers, Sarah, calling, he answered immediately to find out what Sarah needed from him. He was concentrating intently on the call with Sarah as he continued walking across the bitumen carpark to the restaurant to order his lunch.

This carpark had been recently undergoing some much-needed maintenance work, as recent heavy storms had left a series of potholes through parts of the surface. By this time, however, most of the work had been completed. Unfortunately, during the work, the cover of one of the stormwater drains had been damaged by some of the machinery being used by workers, and was awaiting a permanent reinforced replacement. As a temporary measure, the damaged drain area had simply been covered with a square patch of carpet.

Still on the telephone to Sarah, Russell failed to notice any hazard and continued walking across the carpet, which was obviously unable to support his weight. The carpet square collapsed, and Russell fell into the damaged stormwater drain, breaking his right leg and left arm as he tried to stop himself from falling.

Russell is now in hospital receiving treatment for his serious injuries, and will be unable to resume his work as a signwriter for six months.

Using the IRAC process, discuss Russell's prospects of success in claiming a cause of action in negligence against Bonanza Burgers in this matter. Are there any defences against this claim available to the defendant?

Ensure that you support your answer with any applicable case law or statute.