All facts and events take place in New South Wales.

Robert is an 18-year-old boy who is in year 12 at Excel Public High School (EXCEL PHS). Robert is a cricket player. He has been identified by the Australian Cricket Board as an up and coming talent. A number of international cricket players have predicted that he will make the Australian cricket side in 3 to 4 years time. If he makes the Australian cricket side he will receive a contract valued at $100,000 a year and then, if he is able to find the time to advertising and public appearances, he should also be able to obtain commercial endorsements valued at anywhere between $150,000 to $300,000 per year.

EXCEL PHS decides to raise funds for new cricket nets. As a recognised cricket player, Robert is a student representative on the fundraising committee. Robert suggests that Excel PHS hold a music concert. His suggestion is accepted. Excel PHS is able to get the world famous heavy metal band SMASHING BODIES to be the lead act at the concert for free because a number of former students are in the band. As such a popular band will be playing, the fundraising committee decides that tickets for the concert will cost $80 and that to save money the concert will be held in the hall at EXCEL PHS after school.

The organising committee at EXCEL PHS is a little concerned about security at the concert because there have been a number of past incidents at concerts where SMASHING BODIES have been playing. One well known incident was when the lead singer of the band had yelled "smash your bodies" (a term the band always uses to encourage the crowd) and the crowd had surged toward the stage and people were crushed together causing injuries. As a precaution, the fundraising committee decides that only EXCEL PHS students will be able to attend the concert (it has over 1500 students), an area at the front of the stage will be roped off, and only a limited number of students who pay an additional entry fee of $20 will be able to be in that area. It also decides that a specialist entertainment company will be engaged to run the entire concert. The entertainment company chosen to run the concert is CHEAP SECURITY.

CHEAP SECURITY organise the concert and sell tickets. The tickets that include access to the roped off area sell quickly. Peter only gets an ordinary ticket so he knows he will not be able to go into the roped off area.

CHEAP SECURITY knows that they will need extra security personnel to ensure that people who do not pay cannot sneak into the concert. They do not have enough personnel so they put an advertisement in the local paper for contract security staff. Fred responds to the advertisement. CHEAP SECURITY engage Fred, telling him that they can only guarantee the one night of work at this stage but there is likely to be plenty of future work if he does a good job. Fred signs a contract with CHEAP SECURITY. The contract has the heading "casual employment" but expressly says that Fred is an independent contractor. The contract also says that CHEAP SECURITY will deduct tax from Fred's pay and pay superannuation. CHEAP SECURITY provides Fred with a shirt bearing its logo. He is giving instructions about what his duties are to be at the concert. He is told that only ticket holders are to be allowed to enter the concert.

The concert day arrives and all tickets have been sold. Fred is positioned by CHEAP SECURITY near the front off the hall and instructed to keep an eye out for trouble, and check all people in the roped off area have the special ticket saying they are entitled to be there.

The SMASHING BODIES start playing.It is awesome. Robert is jealous of a few of his friends who are in the roped off area. He waits until Fred becomes distracted by talking to a pretty EXCEL PHS teacher and slips into the roped off area.

The pretty teacher moves on and Fred looks at his watch. It is 8pm.He had told his younger brother that at 8 pm he would try and sneak him into the concert. Fred's younger brother attends another local high school and was consequently unable to get a ticket for the concert. To let his brother in, Fred opens a door at the side of the hall (the door can only be opened from the inside, not the outside). Unbeknown to Fred, his brother has told his friends and there are over 50 boys waiting outside the door (they do not have tickets either). As soon as Fred opens the door the boys push into the hall, despite Fred trying to close the door again. Seeing the boys come in, the lead singer of the SMASHING BODIES screams at the boys "SMASH YOUR BODIES". The boys respond by rushing towards the stage and pushing into the roped off area. Such a large number of boys pushes the EXCEL PHS students in the roped off area hard up against the stage. As a result, a number of the EXCEL PHS students are hurt, some cannot breathe and lose consciousness. Peter is knocked to the ground and trampled.

Peter is a very close family friend of Robert's family. Peter treats Robert as one of his own sons. Peter lives around the corner from Excel PHS.He receives a phone call that there has been an awful accident at the concert. He rushes to Excel PHS to see if he can help. When he gets to the concert Robert has already been taken away by ambulance (so he does not know at this point in time that Robert was hurt) but there are a number of students still lying on the ground moaning with pain.He stays with the students until further ambulances arrive and take the student's away. He is later diagnosed with an anxiety order which the psychiatrists say is caused by a combination of what he saw when he arrived at the concert hall and realising later that Robert had been one of the children who were hurt.

Robert is kept in hospital for a month.He suffered 3 broken ribs and a broken neck. He cannot return to school for six months. Once out of hospital, for the first two months he requires 8 hours of care each week for his injuries. For the next one and a half months he requires one and a half hours of care each week. After that he doesn't need any special care but does need to see the physiotherapist once a month for the next year.

As a result of having 6 months off school, Robert is forced to repeat year 12 of school. While Robert's injuries heal well, having broken vertebrae in his neck, his neck is now more susceptible to further injury. The doctors tell Robert that while he may be fine, there is now a greater risk that if he is struck in the head by a cricket ball that he will redamage the vertebrae with the result he may develop constant and chronic pain. Robert decides to give up cricket.

Following the bad publicity after the concert, the promoter for SMASHING BODIES decides not to work with the band again. Without a promoter, SMASHING BODIES is unable to get any gigs.Because it is a small industry, it takes SMASHING BODIES six months to get a new promoter. In this time SMASHING BODIES estimates that they missed out on at least 6 gigs for which they would have been paid $250,000 per gig.

Part A - answer all questions

Answer the following questions in the light of the relevant law, including the common law and the Civil Liability Act 2002 (NSW):

1. Does CHEAP SECURITY owe Peter a duty of care?
2. Does CHEAP SECURITY owe SMASHING BODIES a duty of care?

Part B - answer all questions

Answer the following questions in the light of the relevant law, including the common law and the Civil Liability Act 2002 (NSW). (Do not address the Assessment of Damages in Part B of the exam as it is to be answered in Part C.)

1. Does EXCEL PHS owe a non-delegable duty to Robert?
2. Is CHEAP SECURITY vicariously liable for Fred's negligence?
3. Assuming that EXCEL PHS owes Robert a duty of care, will it be liable to him in negligence?
4. Assuming that CHEAP SECURITY owes Robert a duty of care, will it be liable to him in negligence?
5. Are there any defences that CHEAP SECURITY OR EXCEL PHS can raise?