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Memorandum of advice

Re: Potential Tort Claims


Enclosed herewith is a statement of claim in this matter involving Jim and Mike. Both parties are retired suffers who have since then been participating in charity and exhibition surfing competitions. Mike who is the plaintiff in this case is seeking legal advice about the potential liability of Jim for his injuries. To successfully launch an intentional tort claim on Kim, the burden of proof lies on Mike who is the plaintiff1. He should be able to balance the probabilities that the injuries that he sustained on the wave during the competition were caused by Kim’s intentions. The main elements of tort that can be demonstrated in this case include damages, Cause in fact, and the proximate cause.

The parties

Kim and Mike are both renowned suffer. Until the moment when they retired, they had all made their name in surfing. Throughout their careers, the two had a healthy history of competing against the other, in more than one stance, Mike and Kim had emerged world champions. Their relationship started to deteriorate the moment Mike backed a sponsorship deal that was previously held by Kim. A closer look at the events that led to Mike’s injuries reveals that Kim was not happy with Mike’s prowess and thus he saw a perfect opportunity in the wave to harm Mike.

Damages form an important part of the comprehensive assessment of this case. Damages are the most important requirement of intentional actions that are supposed to be weighed in and be proven. In the case of Harriton vs Stevens2 the importance of assessing whether there were damages in the Intentional tort claim was made. The importance of assessing the damages is to establish whether they are compensable or not. The damages usually consist of the injury that the plaintiff incurred and the consequences that came afterward after the injury or rather what the plaintiff failed to do after he or she had sustained the injuries.

From the narrative given, it is evidenced that Kim rode the wave above the head of Mike and consequently knocked his head. Immediately after the incident, mike was unable to complete the race as he felt groggy and dizzy. He had to be helped by the paramedics who took him from the ocean surface and laid him on the caravan alone. He had to spend a little time on the caravan before he regained his consciousness. It was after then that he realized that he was out of the race and Kim had gone forth to win the competition. The damages in this case therefore would be the injury that Mike sustained on his head and the eventual loose of the competition. There are a lot of financial benefits that he would have accrued if he had won the competition. After losing the competition, it is also increasingly likely that his ratings in the game were greatly affected, and probably shortly, it would be difficult for him to get the sponsorship deals. It is also likely that the defendant of the case will take get the sponsorship deals after he successfully won the competition.

Cause in fact

The cause is usually applied in the traditional rules of legal duty. The plaintiff is usually required to prove that the actions of the defendant are what caused the injury that he or she sustained. In this case, therefore, Mike will have to prove that Kim’s actions are what caused his injuries and the consequences that came afterward. The bottom line of the cause is that if the defendant had no carried out his actions, then the plaintiff would not have sustained the injuries. From the narrative given, Mike in more than instant pleaded with Kim to get out of his wave. Kim was reluctant and proceeded surfing on Mike’s wave. It is therefore increasingly likely that the action carried out by Kim was intentional and thus the injuries that were sustained by mike can directly be linked with Kim’s actions. Mike can therefore prove to the court that if Kim stuck on his line, he would not have sustained the injuries because Kim’s boat would not have found its way Kim’s wave and consequently knocked his head. He can also go further to assert that he was leading the race and Kim’s action severely costed his quest to win the race. If Kim had acted otherwise, then Mike could have gone ahead to win the race.

Proximate cause

Proximate cause refers to the extent at which the defender was negligent3. This refers to the failed responsibility on the part of the defendant. The defendant could have acted differently if the Intentional actions were unavoidable4. In this regard, Kim should have tried to foresee the consequences of his action and this included the possibility of knocking Mike badly if he failed to heed to Mike’s Cry.

Mike could have a proximate cause by stating that he had initially requested Kim to get out of Wave because it was his wave. With the tensions that were building between Mike and Kim, it was important for Kim to realize that there was a possibility of a collision between the two and the best way for him would have been to relax and allow Mike to adjust to the other wave. Mike can confidently put it that it was Kim’s intentional actions that made him sustain the injuries that he had on the head.


In an Intentional tort, duty refers to the fact that there existed a form of duty between the defendant and the plaintiff. In a court of law, the duty usually arises when it is established that there is a relationship between the plaintiff and the defendant and that defendant was expected to act in a certain manner often with standard care to the plaintiff. A jury in a court of law would try to establish whether there is a duty that exists between the defendant and the plaintiff. In this case, the plaintiff and the defendant have a duty that is between them. As professional suffers, there exists a duty between Kim and mike owing to the nature of the sport. They both have to act responsibly or rather extend a standard of care to avoid the possibility of injuring the other. It is therefore evident that Mike expected a standard of an acre from Kim, despite the level of completion that existed between the two.

In a court of law, Mike can assert that Kim greatly failed to extend the duty of care to him. The tension between was high because of the competition, but up to the moment Kim was operating on the same wave with Mike, it was important to recognize the impending risk and the need to change the shift. Mike can also assert that Kim came to his lane intentionally and all he wanted was to interfere with Mike. He had clear intentions from the very start and in one way or the other he wanted to harm Mike. He can also back this up using the strained relationship that they have had since Mike backed the sponsorship deal ahead of Kim.

Possible defenses

There is the possibility that Kim will claim that it was an accident. He can also argue that it mike who was in the wrong lane and the accident could have happened because of that. He will consider relying on the voluntary assumption risk which is stipulated under section 54 of the wrongs act. Kim would then state that the risk of harm was so obvious and that Mike was aware of it

The remedies for the damages.

The damages in Mike vs Kim can be said to be non-economical. According to section 28B of the wrongs act5, the only recognized compensable non-economic losses are the pain and suffering act, the loss of amenities to life, and the loss of enjoyment to life. The defendant from this case subjected the plaintiff to pain and suffering altogether with the enjoyment of life.


The above discussion highlights different elements of Intentional tort that are already available. However, there are also possible defenses that can be used by the defendant. It will therefore require top-level skills to break the case down and to determine the type of evidence that will make or break the case and perhaps how to calculate the damages that were incurred by the plaintiff. The lawyer that will be appointed to represent Mike in this case therefore ought to be considerate of all the Intentional tort claims discussed extensively in this memo. There is also the need to establish the possible areas that will make or break the case.

  1. Trindade, F., Cane, P., & Lunney, M. (2007). The law of torts in Australia. Oxford University Press.↩︎

  2. Stewart, P. E., & Stuhmcke, A. G. (2009). Australian principles of tort law. The Federation Press.↩︎

  3. Lunney, Mark, and Ken Oliphant. Tort law: text and materials. Oxford University Press, 2008.↩︎

  4. Tilbury, M., & Luntz, H. (1994). Punitive Damages in Australian Law. Loy. LA Int’l & Comp. LJ17, 769.↩︎

  5. McDonald, B. (2005). Legislative intervention in the law of negligence: the common law, statutory interpretation and tort reform in Australia. Sydney L. Rev.27, 443.↩︎

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