Frederick is the curator of a prestigious art gallery, ‘The Chilton’, operating in Southbank, Brisbane. The gallery has an excellent reputation for showing strange and unique artworks from modern, upcoming artists. Frederick is very protective of The Chilton’s reputation and is constantly looking for daring new artworks that he can show to his patronsin order to maintain the success of the gallery.
After his last exhibitfailed to attract the attention of customers, Frederick is desperate for some new artwork that will get people to come to the gallery. Following a long search, Frederick discovers an eccentric, mysterious artist who goes by the name of‘Bloom’. Bloom specialises in creating complex mechanical sculptures. Frederick is delighted and purchases one of the sculptures from Bloom to display in his art gallery. The sculpture is purchased on April 1st Bloom promises it will arrive in time for the new exhibit’s opening on May 1st.
The sculpture is an enormous mechanical vulture made of assorted metal parts, gears, glass, and cogs. The vulture is approximately 2 metres tall and has a 3-metre wingspan. When the sculpture arrives at The Chilton on April 30th, it is in three disassembled parts: the body, and two wings. The body weighs approximately 40kg and the wings weigh 20kg each.
Bloom’s instructions recommend that Frederick hire a qualified welder to put the pieces together to ensure no harm comes to the sculpture. Frederick is a little panicked because the sculpture arrived so late and the exhibit is supposed to open tomorrow. He frantically callsone local welder and begs him to come weld the wings onto the vulture sculpture, however, the welder is fully booked for the rest of the week and unable to do so.
Panicked, Frederick decides to use some superglue he has at the gallery to fix the wings onto the body until he is able tohire a welder to correctly install the sculpture. The wings creak and wobble slightly when touched but Frederick believes the sculpture will hold firm. In order to protect the sculpture, Frederick places ‘NO TOUCHING’ signs in the room around the sculpture and also ropes off the area around the wings so no one will be able to reach them, as is common practice in art galleries that hold fragile and potentially dangerous exhibits.
On the morning of May 1st, Bloom arrives one hour before the gallery is due to open to unveil her sculpture. Frederick doesn’t mention to Bloom that he used strong glue instead of hiring a welder to attach the wings. When Bloom sees her mechanical vulture sculpture, she is furious that it has been roped off. Artistically, she wanted the viewers to feel the threat of the vulture up close and ‘not stuck behind some idiotic rope!’ Wanting to keep a good relationship with Bloom, given that she is the exhibit’s featured artist, Frederick apologises and removes the rope surrounding the vulture. The ‘NO TOUCHING’signs remain up around the room.
Shortly after the fight between Bloom and Frederick, the gallery doors openand an eager crowd of 20 people enter The Chilton. Among the crowd are Will and Graham, two local musicians who have never been to the gallery before. Quickly, the crowd gathers around the sculpture, marvelling at its mechanical beauty. Will and Graham are soonpushed under the vulture’s wings by the crowd. Will is enchanted by the sculpture’s intricacies and reaches up to touch the cogs on the wings. Graham warns Will about the‘NO TOUCHING’signs around the room. Will shrugs, saying ‘one little touch won’t hurt.’ Graham shakes his head and walks away but Will proceeds to touch the underside of the wings, rotating the cogs and feeling the glass.
Suddenly, a great scraping sound is heard and the wing crashes to the ground, directly on top of Will. Glass shatters, metal twists, and Will is pinned beneath the wing. Graham calls 000 immediately, and the gallery’s patrons attempt to free Will from underneath the heavy wing. Urged on by Bloom, Frederick stops the crowd from helping Will until he has saved some delicate parts of the statue from being damaged further. The crowd initially protests Frederick’s act to save the statue pieces, but Frederick is well-known for banning patrons from the gallery and threatens to do so if anyone doesn’t obey him.
Will is freed by paramedics 20 minutes later and taken to hospital where he is diagnosed with a fractured hand and wrist, a broken leg and a severe concussion. Due to Will’s injured hand and wrist, he is unable to play his guitar until his hand heals. Will must cancel the 10 gigs he had booked over the next three months, losing a total of $15,000 in payment and merchandise fees for those three months. Additionally, Will breaks out in blisters due to a rare metal allergy he has to the metal that the mechanical vulture was made of. Nobody will hire Will for gigs for a further month after he is able to play guitar again because the blisters make him too ‘upsetting to look at for customers’. Needless to say, Will never visits an art gallery again.
This assignment question has two parts. The first part asks you to consider the application of negligence law to this scenario and will comprise of 35% of your marks for the course. The second part asks you to consider Frederick’s ethical obligations and his actions, worth 5% of the marks.
Advise Will whether he may have a claim under the law of negligence. Limit any discussion of defences to contributory negligence.
PART B (500 words)
Using the Framework for Thinking Ethicallydocument provided in Week 1 of the lecture materials, identify and describe the ethical approach or approaches you would have used if you were in Frederick’s position. (5 marks).
Ensure you justify your response based on the facts of this scenario.
Part 1 of this assignment asks you to advise whether Will may be able to successfully pursue a claim of negligence. You are therefore required to determine whether all of the elements of negligence are satisfied and if the defendant may be able to adequately defend this claim.
Part 2of your assignment asks you consider what ethical approach you would take in Frederick’s position.
External research is not required to complete this assignment – the course materials are sufficient. It is strongly suggested you consult the relevant part of your course materials, lectures, textbooks, tutorials and the Negligence Flowchartwhen crafting your response.
Use the elements of negligence and any relevant defences as your headings. You should also include an introduction and conclusion, as advised in the Negligence Flowchart.
You should use the IRAC Structure when assessing each of the legal elements and defences:
· What is the legal issue you are considering in this element? Rules
· What are the relevant legal rules and principles used to determine whether this element or defence is satisfied?
· Ensure you cite the relevant case authorities or legislation which establish these legal rules. Application
· In this section we apply the legal rules to the factual scenario we are considering.
· How do the rules apply in this scenario? Why are the legal rules satisfied/not satisfied? Conclusion
· Based on the legal rules and their application to this scenario, is the element or defence satisfied?
It is not enough simply to detail a legal rule or to merely apply the law to the scenario – you must do both of these things. This is how you demonstrate your knowledge of the law and your capacity to apply it.
Please note, merely reproducing the facts produced in the assignment problem will not attract marks.While you are required to draw upon the facts of the scenario to apply the law to these circumstances, lengthy repetition of the facts will detract from rather than increase the quality of your piece.
Dot-points responses are unacceptable. Your response should be in full sentences and contain proper and accurate spelling, grammar and sentencing. There is study support available from USC if you need assistance with proofreading or writing your answer. See: https://www.usc.edu.au/learn/student-support/academic-and-study-support
You must cite the relevant sources of law (cases or legislation).You are not required to detail the facts of every case you apply. It is sufficient to explain the relevant test or principle from the case and then cite the case using the applicable style of referencing.