Brian operates sight-seeing tours off the Slippery Coast in South East Queensland [for the purposes of this Task, you can choose Victoria or NSW]. Brian has a small boat. The marine authority, which regulates licensing for tourist operators, has determined that Kevin's boat can safely accommodate two passengers at a time.

Dot has invited her brothers, Tim and Nick, to come from Tasmania to the Slippery Coast for a holiday. Dot arranges to take a sight-seeing trip with her brothers on Brian's boat the morning after they arrive.

The morning of the trip, Brian woke up with the flu and told his son, Jack, to take the boat out instead. Jack is 16 years of age and does not have a boating licence. Jack decides that it will be all right to take three people out because the regulations are very conservative. Jack knows that other operators frequently exceed their limit. He makes sure he has three lifejackets on board for his passengers.

The brothers arrive early at the dock to board the boat. Jack notices that the three brothers are all very large men. On boarding Tim notices a sign attached to the boat, which says 'Lifejackets must be worn at all times.' Tim thinks that a jacket would be hot and uncomfortable and ignores the sign. The weather looks fine. They head out to sea.

One hour after leaving the dock, a sudden storm causes the boat to take on water. Jack struggles into a lifejacket. He yells to the others to put theirs on. Tim can't hear him above the sound of the water lashing the boat. He sits with his head down against the rain, hanging onto the side. A big wave hits and the boat capsizes. Jack, Dot and Nick surface from under the water and hang onto the upturned boat. Tim surfaces some minutes later, unconscious. Nick grabs Tim and hangs onto him.

They are all rescued within 30 minutes by a coast guard patrol. Tim is revived and rushed onshore to hospital. Jack, Dot and Nick are remarkably unharmed. Tim, however, has sustained some brain damage due to nearly drowning. He has also sustained permanent paralysis down his right side and is confined to a wheel- chair.

Evidence reveals that the excessive weight of the passenger load contributed to the capsizing of the boat.

Tim comes to you for advice. He wishes to sue Jack in negligence.

Answer the following questions:

1. Did Jack owe Tim a legally recognisable duty of care at the time of the incident?(15 marks)

2. If Jack owed Tim a duty of care, did he breach that duty of care?(20 marks)

3. Could Tim prove the element of damage in an action in negligence against Jack?(15 marks)

4. What defence, if any, could Jack raise against Tim? How would proof of a defence affect Tim's claim?(15 marks)

5. What remedy could Tim claim against Jack? (5 marks)