civil precedureANTONY BREZINSK

civil precedureANTONY BREZINSKI is the son of YVETTE BREZINSKI and ZBIGNIEV BREZINSKI who died on the night of 11-12 May this year, after eating highly poisonous Greencap mushrooms. ANTONY says that he and his wife, BRUCENE BREZINSKI, took Yvette and Zbigniev to Wildewoode Estates for a birthday treat for Yvette who turned 80 on 11 May. Wildewoode Estates is situated in Kalorama and is famous for its autumn colours. They had lunch at a nearby restaurant, whose name they can?t remember. (They paid cash and did not receive a receipt.) At about 2 pm, after they had finished their lunch, they drove to Wildewoode, intending to go for a walk in the grounds. At this point, ANTONY?s mobile phone rang, but reception was poor so he decided to walk to somewhere where reception might be better, and suggested to his parents that they proceed with their walk and meet again at 4 pm, at the tea rooms, for a Devonshire Tea. BRUCENE decided to sit down and await their return. She noticed for the first time that ZBIGNIEV BREZINSKI was wearing a small red and black backpack. After the tea, ANTONY drove his parents back to their house in Glen Iris.Next morning, they received a call from the parents? neighbours who had noticed that the Sunday Age had not been collected from the driveway, although it was almost 10 am. They had investigated and found the couple dead. They had called the police immediately. Later, there had been the inevitable inquest, at which the Deputy Coroner concluded that the cause of death was the consumption of poisonous mushrooms, which had probably been gathered at Wildewoode Estates. She had warned of the hazards associated with eating wild mushrooms.ANTONY says he and BRUCENE have experienced acute distress as a result of the deaths and want to sue Wildewoode Estates. I suggested that the parents? estate would also have a claim and that it would be convenient to combine the claims, indicating that this would make particular sense if ANTONY and BRUCENE were executors for the deceased. ANTONY said that this was not the case. About ten years ago, his parents had changed their wills to leave most of their estate to La Trobe University to establish a Chair in University Administration, with what was left going to ANTONY?s brother, JOSEPH, and to sister KARLA. This had been the result of a disagreement which ANTONY and BRUCENE preferred not to Discuss (check for the help you need). Suffice it to say that relations had subsequently improved and his parents had indicated that they intended to change their will to provide for their (ANTONY?s and BRUCENE?s) children, Tristan and Isolde. Now, they understood, this would not be possible. They wondered whether they could sue Wildewoode on this ground.I pointed out that they would have to prove their allegations. A was most indignant, and accused me of doubting his word, but seemed satisfied when I explained that I wasn?t the court that would consider the matter. I said I could get things going on the basis of his story, and I could add some additional claims if these were needed to fill in the gaps. But A and B would need evidence to support those claims. For instance, they would have to show that the parents did indeed take mushrooms from Wildewoode, and that it was these that they cooked and ate. A said that there was no doubt of that, and that he could gather the relevant evidence. He had kept the entry tickets to Wildewoode (2 full price, 2 seniors), and his wife had photographs of ANTONY and his parents in front of a tree with spectacular red leaves, dated 11 May. When they conducted their investigation, the police had found traces of Greencap mushrooms in a backpack at the parents? house, and there was no doubt that they had died from the effects of ingesting mushrooms of the same species. Antony did not know whether the police had taken fingerprints from the rucksack, but thought it was unlikely.I was unsure whether ANTONY and BRUCENE had much of a case, but thought we could probably extract something from a defendant who would be anxious to avoid adverse publicity. I said we would take the case, on payment of $15,000 deposit. I outlined the costs we would charge. B said they wanted proceedings commenced as soon as possible, and I agreed. I have succeeded in getting coverage of their case on Channel 6?s Day in Court program.Note 15September: generally endorsed writ against Banks Trustees filed SC; statement of claim to follow.Note 17September. BRUCENE produced her photograph. I happen to know the tree. It?s a maple, just to the east of the entrance. The photograph showed the sun shining through it from the Northeast which seemed a bit odd. I advised BRUCENE by phone that if she wanted to rely on the evidence she would need to take another photo, backdate it and make sure that the shadows were right. I also pointed out that there was no sign of the backpack in the photo. I think that there are problems under Victorian legislation with taking this course of action.For this reason I think the plaintiffs should sue out of the Federal Court. They could assert misleading and deceptive conduct. This is to be balanced against the fact that the Federal Court has no jurisdiction to hear their negligence-based claims.Note, 17 October 2012Contacted my lecturer in Civil Procedure when I was in Law School to ask about a problem with service. The affidavit of service says that our writ was served on Wildewood on the basis that it was a corporation, which it isn?t. I contacted him and told him he was a fool. He said that in that case, the writ should not have listed WildewoldInc as the defendant, which is what ours did. I asked him what we should do. He said we should find out who is responsible for the Widlewood business. I rang Wildwod and aksed someone at reception who owned the place. She helpfully said it was Dr Banks, who owns the land, premises, and the business conducted on the land.File note: Rene Pascal, Claims Officer to Dan Kahneman, Senior Claims Officer, Kings Bench Insurance, 30 September 2012.Dr Banks says he is sole trustee of the assets of the Wildewoode business. He insures with us and the cover we provide includes indemnity insurance in relation to legal liability. He says that two days ago a process server came to the Wildewoode offices and asked their cleaning lady whether she was the person in charge of the premises. She said she supposed she was since there was no one else around. The process server then gave her what Banks understood to be a sealed copy of a writ. She gave it to Banks? Personal Assistant who gave it to him this morning. Banks says that the writ named Wildewoode Operations as the defendant. He assumes that the plaintiffs meant to sue him since he owns the legal interest in the business and runs it.He said he wasn?t in a position to deny the couple ate Greencap mushrooms from the park, although he doubted it. Botanists had identified 58 varieties of mushrooms in the park, but had never reported Greencaps. Indeed, there had been no reported cases of anyone suffering injuries or death as a result of eating mushrooms from the park. There?d been a mushroom-related fatality earlier in the year, but that had involved a Box Hill mushroom.Nonetheless Wildewoode warned visitors against the dangers of eating poisonous mushrooms. There were signs at the entrance stating that theft of mushrooms was a criminal offence carrying up to ten years imprisonment, and that for poisonous mushrooms, the penalty could be death. Near each set of conveniences, there were posters of dangerous mushrooms, including Greencaps. This wasn?t because the mushroom had been found in the park. It was there to warn against more common and less toxic mushrooms, some of which had been reported in the Dandenongs. But it would be hard to prove that the deceased had not picked a Greencap on their visit. There were video cameras at the entrance and along the orchid walk. They seemed to have been working, but it would take a long time to watch them all, and he hadn?t done so. In any case, they wouldn?t be conclusive.1 October 2012I sent Linnaeus out to have a look at the place. He didn?t find any poisonous mushrooms, but points out that this is not the season for them. Signs were as indicated and sufficiently dramatic to encourage hordes of children to photograph each other standing in front of them. I made inquiries of Prof Arisema of Melbourne Uni Botany who says that while the mushroom in question has been found at a number of sites along creek banks in suburban Melbourne, botanists working at Wildewoode have not reported any findings. The mushrooms apparently like oaks, and have been reported as growing along Gardiner?s Creek near the bridge in Glen Iris. Wildewoode doesn?t have any oaks. Prof Arisema also said that in a confined space, Greencaps emit a foul odour, which is one reason so few people eat them. The parents? sense of taste may have declined to the point where they couldn?t smell it, but it seems odd that the plaintiffs made no comments about the smell in the course of the trip to Glen Iris.In my opinion, the insured has a valid claim under their indemnity insurance policy with us, and I think we should defend, subject to settlement on a nuisance-avoidance basis. I explained to Dr Banks that this would mean we would take over the running of the case. He was delighted at the prospect and said that we would have his continued co-operation.[Note to students: this is a correct analysis of the law, and is irrelevant to any of the questions that follow].ANSWER ALL QUESTIONSQuestion 1Assume you are a partner in Elden and Associates.(a) Draft a letter to be sent to Antony and Brucene setting out their obligations under Victorian Civil Procedure law, and advising of the consequences of their (and your junior lawyer?s) failure to comply with them insofar as there has been failure to comply.(b) Are there any respects in which Thurow?s advice of 17 September was misleading?Answers to question 1(a) will be the basis for assessing Graduate Attribute: writingQuestion 2(a) Was originating process properly served and if so, when?(b) Thurow calls you wanting to know what to do about the fact that he named Wildewood Pty Ltd as defendant when he should have sued Banks. Advise him.(c) Should the defendant file and serve an appearance or a conditional appearance?Question 3The plaintiffs? statement of claim includes the standard heading and reads:Statement of clam1. The defendants is the owner and trustee of Wildewoode Estates, and responsible for the running of the business conducted there.2. On or about 12 May the plaintiffs entered into an agreement with the defendant not to do whereby he undertook not to do anything to endanger their mental or physical health.3. In breach of its contractual obligations the defendant permitted the first plaintiff?s parents to take away Greencap mushrooms (?the mushrooms?) for the purpose of subsequent consumption.4. Having subsequently consumed the mushrooms, the parents died in agonising circumstances, paralysed, in excruciating pain, and knowing that nothing they or anyone else could to avert their imminent death.5. As a result of the foreseeable consequences of the parents? terrible deaths, the plaintiffs have suffered psychological harm and financial loss.6. Even if there wasn?t a contract of the kind we claim, the defendants owed them a duty of care.ParticularsThe duty of care arose out of:The defendant?s knowledge, both personal and through his servants and agents, that visitors would rely on those responsible for the administration of the park to warn them against the hazards lying within the park;The defendant?s greater capacity to assess the dangers posed by poisonous plants within their custody.The seriousness of the harm that could result from the defendant?s failure to assess the true risks posed by the Wildewoode Estates enterprise.7. The defendant also acted in breach of his dutyParticularsFailure to ensure that there were no poisonous mushrooms on the propertyFailure to remove the Black Cap mushrooms from the propertyFailure to successfully warn the plaintiffs of the dangers lurking on the propertyFailure to take sufficient steps to prevent the removal of poisonous mushrooms from the propertyAND THE PLAINTIFFS CLAIMSDamages of $1.2 million.The relevant sections of the defence read:Defence1. The defendant admits the allegations in para 1.2. The defendant agrees there was a contract but says that this was a contract by which the defendant(a) permitted the plaintiffs and others for whom they paid an entrance fee to enter and make reasonable use of the property, and(b) undertook to take care to ensure the safety of those visitors who did not engage in criminal behaviour calculated to endanger their physical well-beingand by which the plaintiffs undertook not to take part in or facilitate the removal of plants from the property.ParticularsThe terms of the contract are implied by normal business practice and were not modified in any way by conversations between the plaintiffs and the defendant, its servant or agents.3. The defendant says that he did not permit the taking away of mushrooms, whether Black Cap or not, or whether to be consumed or otherwise. He says that anyone who removed mushrooms would therefore have been behaving dishonestly. He also says that the mushrooms which poisoned the deceased did not come from the estate.4. The defendant does not deny the allegations in paragraph 4 but says his servants and agents warned visitors that this could be the fate that befell them if they removed and consumed mushrooms from the property.5. The defendant admits that the circumstances of the parents? deaths were terrible, does not admit that they caused psychological harm or less to the plaintiffs, and says that if such loss had been caused (which he denies), it would not have been foreseeable.6. The defendant admits owing a duty of care to the parents, but says it extended only to harm which was reasonably foreseeable, and that the harm suffered by the deceased was not reasonably foreseeable. The defendant will produce evidence from botanists that the likelihood of Black Cap poisonous mushroom being present on the premises was less than 1 in 500 and that the likelihood of such a mushroom being eaten is less than 1 in 20,000. The danger posed by Greencap mushrooms was even less.7. The defendant does not admit to having breached any duty owed to the plaintiffs.8. The defendant says that even if he is liable for damages (which is not the case under the claim as pleaded), the plaintiffs were contributorily negligent.ParticularsFailure, notwithstanding awareness of their parents? faded cognitive abilities, to supervise the deceased at all times during which they were present at the estate;Failure, in the course of the drive to the deceaseds? home, to recognise or inquire into the unpleasant smell emitted by mushrooms of the variety purportedly responsible for the death of the deceased.Are the pleadings satisfactory? 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