Vincent is an Investment Advisor at a bank who has taken some time off work during the Christmas period. Vincent has recently taken an interest in landscape gardening and to this end, has decided to refurbish his front and back yards. To this end, he sets out to dig 2 trenches in his front and back yards, each 40 cm deep and 2.0m wide trench, which is a distance of some 10 metres.This being a home project, Vincent thought it unnecessary to put up any barriers or signage in the front and backyards.

It was an unusually hot day on Day 3 of landscaping and Vincent was midway through digging the trench in the frontyard. He was about to shut the front gate to his yard when he heard a loud scream from his backyard. Vincent dropped his shovel and ran to the backyard.

It turned out that Vincent's son, 10 year old James had invited his friend Tod, 10 years, over. The two boys had engaging in indoor play all afternoon and had decided to play a game of 'tip' (without Vincent's knowledge) around the trench that Vincent had dug in the backyard. Tod felt conscious about wearing his spectacles and had chosen not to wear them when playing tip with James.

At one stage, when James had reached out to tap Tod's hand, Tod decided to jump into the trench to escape from James. When he jumped, he had miscalculated his jump because of his blurry vision and fractured his leg, screaming in pain. Upon hearing his scream, Vincent had run into the backyard to check out the commotion and subsequently proceeded to call an ambulance inside his home.

While Vincent was indoors calling the ambulance, Barbara, a salesperson from a solar power company, had been door knocking down Vincent's street and approached Vincent's gate along his footpath. Barbara had just switched her mobile telephone on and was reading a number of SMS messages that had been sent through from her sales team. About half an hour before, Barbara had consumed a half a bottle of wine with her lunch at a local pub as she was feeling stressed about her manager's email indicating she had not met her targets for the month.

Barbara was very engrossed in checking her messages when she opened Vincent's front gate and stepped into his yard. Barbara tripped over Vincent's shovel which was lying on the ground, and fell into the trench on her back, causing serious spinal injury. Vincent came running out to the scene and said, "I'm terribly sorry. I'll call another ambulance for you." Barbara has had to undergo spinal surgery and is unable to work for 12 months as a result of her injury in addition to being hospitalised and seeking ongoing physiotherapy. Further Tod has been hospitalised for a month and requires various medication.

Vincent felt terrible about the unfortunate sequence of events at his home and decided to meet up with his best friend Damien a week later, for a drink at their local pub. Damien decided to seek Vincent's expertise (being an Investment Advisor) on whether an upcoming company 'Red Brick Street Ltd' had good prospects. Vincent had a few drinks and had replied "yes but come and see me during office hours mate". The very next day Damien bought $10,000 worth of shares in "Red Brick Street Ltd". A week later "Red Brick Street Ltd Ltd" went into liquidation.

A month passed and another of Vincent's clients, Victoria had sought his advice at his business premises, as to whether she should invest in an upcoming company in an overseas jurisdiction. Vincent had done research on the company in line with the Investment Advisors' Professional Standards Manual, however had missed a recent article in an overseas publication about political tensions in that jurisdiction. Vincent had then prepared investment advice advising Victoria that it would be a worthwhile investment, however subject to the disclaimer below.

General advice and information only

Any advice and information on this website is general only, and has been prepared without taking into account your particular circumstances and needs nor political circumstances prevailing in a particular jurisdiction. Before acting on any advice on this website you should assess or seek further advice on whether it is appropriate for your needs, financial situation and investment objectives by consulting independent advisers in the particular jurisdiction you wish to invest in.

Victoria invested $20,000 and lost her money as the company became insolvent due to a war having broken out in that overseas jurisdiction.

(a)Advise Barbara and Tod using the IRAC format, whether they are likely to be successful in Tort Law against Vincent. In your answer, please discuss the elements as well as potential defences for each of them.

(9 Marks)

(b)Advise Damien and Victoria using the IRAC format, whether they are likely to be successful in Tort Law against Vincent.

(6 Marks)

Remember: Your arguments must all be fully supported with relevant statute and/or case law (as appropriate).