EXAM 19 May 2018, questions and answers PDF

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EXAM CHEAT SHEET Module 2 & 3 - Negligence  1. 2. 3. To provide negligence divide it under the following subheadings Duty of Care Breach of duty Damages Module 2  special question Unlucky James A. What type of harm (injury) has James suffered, or is likely to suffer as a consequenc...

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EXAM CHEAT SHEET Module 2 & 3 - Negligence  1. 2. 3.

To provide negligence divide it under the following subheadings Duty of Care Breach of duty Damages

Module 2  special question Unlucky James A. What type of harm (injury) has James suffered, or is likely to suffer as a consequence of the flooding? (Here you are considering the type of harm the plaintiff has suffered) James has suffered property damage (he has lost stock and fittings from his shop) and consequential economic harm (he is likely to lose sales and therefore his profits). B. Make a list of all parties (persons or businesses) who would have relevance to a compensation claim. For each of the parties, indicate what role the party would be likely to have in the claim (e.g. witness, litigant). (Here you are trying to identify the plaintiff and defendant) James: the plaintiff – the party who has suffered the harm/damage. Aspect: had responsibility as owner for repairs to the shop – a defendant Breeze: had responsibility for communicating tenant problems to Aspect and for arranging maintenance – they may be a witness and/or may be partially liable themselves (although as agent of Aspect the liability would more likely be attributed to their ‘principal’ – Aspect). Leakless: plumbing contractor that performed the repairs – if their work was faulty (not clear on the facts) they could share liability as a defendant, or otherwise may be a witness. Water Board: carried out public works that sparked off the damage - like Leakless they could be partly liable if their works were in some way faulty or might otherwise be a witness (possibly). C. Unfortunately, James did not carry insurance. As none of the other parties is prepared to take responsibility for James’ harm, James has no option but to ask his lawyers to commence legal proceedings seeking compensation or damages. i. Relate the relevant facts to the three elements of negligence that James is obliged to establish. (Here you would discuss the plaintiff’s claim. However you are only being asked to reflect on what facts are relevant to which element, to ensure you understand those elements) ii. In order to prove these facts, James’ lawyers need to gather evidence and present it to the court. What evidence could his lawyers gather to support the facts you identified above? (Hint: documents often provide good evidence.) (Here you are taking a business approach on risk management – thinking about how you prove a claim) Aspect owed a duty of care to James – their actions were reasonably likely to have an impact on James or, to put it another way, it was reasonably foreseeable that their omission or failure to act (not fix the pipes) was likely to cause harm to someone in James’ position (as their tenant). This is based on the neighbour test from Donoghue v Stevenson. As James sues for an omission to act he must also satisfy the positive duty to act test from Hawkins v Clayton.

Further, the fact situation may be recognised as one of occupier’s liability as the state of the premises, it is asserted, has caused the harm. Aspect, as the occupier of the premises (owner) owes a duty to maintain those premises and owes that duty to all invitees (which includes the tenant), as stated in Australian Safeway Stores v Zaluzna.

As noted above, Breeze is Aspect’s agent so, although they also owe James a duty of care in the sense described above (ie, their conduct could cause damage to him/his business), Aspect would be legally responsible for their actions under the law of agency. As to Leakless and also the Water Board (WB), we would need more facts around the quality of their work, and whether it was in some way faulty such that it could be said to have caused the damage rather than Aspect’s neglect. To show that we would need to establish faulty work being the direct cause of James’ harm, in the sense that the harm/damage would not otherwise have happened, ‘but for’ that faulty work. We do know that Leakless’s work was a ‘patch-up job’, but that is what they were told to do, and it might still have been of an acceptable standard for that sort of work – this would probably be worth investigating further in a real case though (whether or not Leakless’s work was up to standard for a basic patch-up). But given that we don’t know from the facts whether there was any fault or lack of care in WB’s work – it appears at least likely that what WB did was alright, only that in the situation James’ store was already in, with its existing faulty plumbing, the resulting damage was something outside the scope of liability for the work that WB has done. So WB is not a likely defendant here: either there is no fault / breach of duty in their work, OR, if there was faulty work here it seems most likely that the resulting damage would be outside the foreseeable scope of damage such a fault would cause. Note that in a real case though more investigation into what WB and Leakless did could turn up other causes of the damage – for our purposes here though, we will take a straightforward approach by pursuing Aspect. Breach of Duty –To work out the standard of care which a reasonable landlord would have owed several tests need to be satisfied. The first test is to ask whether the landlord was aware of the risk of harm or should he have been aware? Given the earlier plumbing report (which will be obtained after litigation commences under Discovery) Aspect did know. James would argue the landlord should have known given his complaints about consistently leaking pipes. Leaking pipes can lead to damage by water. How does he prove his numerous complaints? The importance of keeping any correspondence (letters, emails, etc) and of issues like this being dealt with in writing. We aren’t told in the facts whether James’ complaints are written or just spoken / verbal. Ideally though he would have emails or letters to prove that he raised this with the agent, and also the date that he did so, and how often it was raised. Getting things like this in writing can be really important in the event that something like this goes wrong. The second test would be to ask if the risk itself is not insignificant, that is how likely is it the risk may eventuate. Constant leaking pipes may indicate a problem with the pipes such that it is likely or possible this could lead to a worsening situation. The third test is to look for the reasonable person’s response to that risk. The courts weight up the probability the harm may occur (the greater the risk, the higher the standard), how serious the harm inflicted may be (the more serious the harm, the higher the standard), with the cost of elimination (if the burden is unreasonable then you are not expected to incur that burden in order to eliminate the risk) and social utility of the conduct, if relevant, which it isn’t on these facts. What would a reasonable landlord have done in this situation? Students should state what they think the legal standard of care was on these facts. It could be do nothing, do a patch job, or more likely fix the pipes properly. Damage - The harm or damage here is the stock that has been destroyed and loss of sales. The damage must have been caused by Aspect’s breach of duty. This situation would not have occurred ‘but for’ Aspect’s failure to properly fix the plumbing (ie, if it had been fixed this sort of damage would not have been reasonably foreseeable). The damage is the sort of consequence that Aspect should be liable for (it is not a disproportionate / unexpectedly severe outcome).

James should be able to prove the 3 elements of Negligence against Aspect on the above grounds. As all 3 elements have been satisfied James has a case against Aspect. [Note here that if one or more elements were not satisfied though, James could not establish liability – it must be all 3 at this stage of the argument.] ii. Duty of care: The lease agreement could be produced as evidence of the landlord / tenant relationship, which in turn establishes a duty of care (what Aspect does in relation to the building, or doesn’t do, will impact on James as he is the occupier / tenant of that building). Breach of duty: Aspect’s knowledge of plumbing problem: James’ lawyers could issue a notice to produce documents listed on the Discovery and use this as evidence that Aspect knew of significant plumbing problems affecting James’ shop. Proof that Aspect’s repairs were inadequate: James’ lawyers could call Breeze and Leakless to testify (give sworn evidence) at the hearing. Breeze could give evidence of Aspect’s instructions to do only a ‘patch-up job’ while Leakless could give evidence of the work required and that it was prevented from doing a proper repair job. Damage: invoices for stock that has been destroyed, estimates for repair work or cost of replacing the fittings – accountant’s or other bookkeeping records of sales to establish value of lost sales during the time the shop was closed.

Module 3 special question How to approach a legal hypothetical: 1. Identify the legal issues from the problem. These are the questions of law the parties would ask the court to answer, should it go to court. Be logical in expressing them. 2. Identify and explain the relevant law for each of the legal issues, giving legal support and authority where possible (You are not expected to do your own legal research so using cases given in your textbook will be perfectly acceptable). 3. Apply the relevant law to the facts of your problem, exploring all reasonable arguments. Explain why the law you just stated is relevant to the facts of the problem. As far as possible, use the actual words stated in the problem when explaining the law’s relevance. 4.

Consider any relevant defences or remedies, if appropriate, and reach a conclusion, if possible, or at least state which view is more likely or stronger. A guided exercise on Negligence. Treat the following as an exercise where I’ve started by giving some examples, but then handed it over for you to do the same with other aspects of the work involved. If you work through each of the parts I’ve left for you to do yourself, then you should have a good outline or structure that you can then use in the exam. First, list out the elements of the action – you can use these as headings for your paragraphs / an overall ‘structure’ for your paper if you wish. Identifying these ‘elements’ or headings ahead of an exam can be a really useful way to prepare – you might even like to set out a structure for yourself along the following lines. Every topic in Law will have these sorts of main headings / elements that you can map an answer onto (for instance we will see in Contracts that there are elements to contract formation: Offer, Acceptance, Intention and Consideration). To establish liability in a case of Negligence we’ve already seen that the plaintiff would need to prove all three of the following:  Duty of Care  Breach of Duty  Damage Now write a bit more for each element, or heading, about how we work out whether or not that element is satisfied – these are what lawyers call the principles or the tests for each element. We went through these in the first module on Negligence (‘Accidents and Mistakes’). To start you off with an example, you might explain Duty of Care as follows:

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Duty of Care: In order to establish that the defendant owes a duty of care to the plaintiff it must be shown that it is reasonably foreseeable that the defendant’s actions (or inaction) may cause harm to a person in the plaintiff’s position. This is also known as the ‘neighbour principle’ from Donoghue v Stevenson. The above gives you a reasonable example of explaining the duty of care element in a Negligence action. Note that this part stays the same no matter what the facts are – the trick is to work out whether or not the actual facts you have been given in the problem satisfy this test or not, and whether there are additional tests which must be satisfied. Notice too that I have mentioned a relevant case here, given an authority for the statement of law. You may wish to add other cases – particularly if the facts in your problem seem similar to the facts in a case you have studied. That’s usually a sign that the case is a good addition, remembering our doctrine of precedent here too – that cases with similar facts should be decided the same way. Now, add in similar statements of the principles / tests for the other 2 elements of Negligence, below. Add relevant case authorities or sections from the relevant legislation. Breach of Duty …………. Damage ……….. Once you’ve worked out how you are going to describe the tests / principles for each element, we move on to apply those tests to the facts of the problem. To illustrate, consider the following simple problem (the exam problem will not be this simple, but we’ll use this one as an example!): Adam buys a hamburger from Hungry Johns for his best friend Eve. As Eve eats the hamburger she notices a rat’s tail poking out from under the lettuce. She realises that the unusual taste that she had just mentioned to Adam was not a figment of her imagination. Eve later suffers terrible gastro, has nervous shock and is off work for a month. Hungry John’s is unable to explain how the contamination occurred because it complies with every health regulation and is acknowledged to have the most hygienic premises in the country. Advise Eve of any claim she may have under the tort of negligence.

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Now consider whether or not these facts match the statements of principle for each of the elements or not. You might write something like (notice how the ‘paragraph’ on duty of care is filling out or expanding with each step of this process): Eve sues Hungry Johns for her personal injury as a result of the negligent act of the defendant (allowing a contaminant into the product). Duty of Care: In order to establish that the defendant owes a duty of care to the plaintiff it must be shown that it is reasonably foreseeable that the defendant’s actions (or failure to act) may cause harm to a person in the plaintiff’s position. This is also known as the ‘neighbour principle’ from Donoghue v Stevenson. In this situation, Hungry Johns does owe a duty of care towards Eve, because it is reasonably foreseeable that if they do not take care in their food preparation and contamination occurs, then a person eating their food could become unwell. Alternatively, it could be claimed a duty of care was owed as these facts come within an already recognised category – manufacturer owes a duty to exercise care when putting together their product, and owes that duty to the ultimate consumer, as per Donoghue v Stevenson, Grant v Australian Knitting Mills. So Hungry Johns owes Eve a duty of care, and the first element of Negligence is satisfied. Now do the same for the other two elements, Breach of Duty and Damage – applying your tests or principles to the facts given above. [Hint: Breach of Duty is satisfied where it is reasonably foreseeable that harm will occur unless precautions are taken – here, to ensure the food is not contaminated, a reasonable ‘person’ in Hungry John’s position would take such precautions, and the risk itself is a serious one (food poisoning) … Damage is also satisfied as the contamination clearly caused Eve’s illnesses and those illnesses are certainly within the scope of liability). OVERALL, it appears that we have satisfied each of the 3 elements required to establish liability for Negligence. That means Eve would have a case. But that isn’t the end of the answer. Next we need to consider whether there are any defences that Hungry John’s might

want to rely on to excuse themselves. The defences are described in detail in the second Module for this topic. Importantly note that although you must cover all 3 of the elements in order to make out the case in the first place, because all 3 must be present, once we start looking at defences you have more scope to choose which ones you think should apply to the case in question and to focus your answer on those ones, with perhaps just a brief mention of those that obviously don’t apply. This is a fairly important part of problem answering technique – knowing which parts you must cover, and which parts involve a choice of sorts, then making that choice well so that your answer targets the defences (in this topic) that are the most likely to apply. In outline, the defences to negligence are:  Defences ‘on the elements’: do you think Hungry Johns could argue that one of the elements (Duty of care; Breach of Duty; or Damage) has not been satisfied? On the facts of this particular problem that seems unlikely, but for exam purposes, show that you are aware of this type of defence, but that it doesn’t appear to apply to this fact situation and then move on (mention this, yes, but don’t spend a lot of time on defences that the facts quite clearly don’t apply to). Note too that of course a more detailed problem question could raise questions about the elements – consider the facts of the tutorial problem for instance, where there was a question as to who really did cause the plumbing to fail in James’ shop – was the plumber or the Water Board actually the cause, or partially the cause, instead of Aspect …  General defences include defences such as: o Assumption of risk: is there an obvious risk or an inherent risk involved in eating at a Hungry John’s such that Eve should be treated as having taken the risk on herself? o Intoxication: Eve does not appear to be intoxicated on these facts, but note that even if she was, that would not remove the problem which was about a contaminant in her food – intoxication as a defence applies in situations where the plaintiff has caused the harm or injury to themselves because they were intoxicated – so that one would actually have no relevance here, even if Eve were drunk when she consumed the burger. o Contributory Negligence: has Eve done anything to contribute to the situation herself, such that she should be at least partly responsible? o Non-delegable duties, and expiry of the limitation period (ie, the 3 years (usually) within which the action must be brought) do not appear to be relevant here – nor is it a recreational activity, dangerous or otherwise, nor does it happen in the course of committing a crime … As a general suggestion, I would prepare a short statement of the test / principles with legal authorities for each of the defences mentioned above – along the same lines as you have done for the 3 elements of the action earlier on, but be prepared to deal with some only very briefly – like the last dot point above where I’ve mentioned several that obviously don’t apply here. So overall, we need to consider whether Eve would succeed against Hungry John’s on the (very brief) facts given. Unless something more were added to the facts, the situation is that all 3 elements of the action appear to be satisfied and then that Hungry Johns does not seem to have any defence. As an aside, consider how the facts would change if it could be proved (which one would guess is probably what happened) that a disgruntled employee placed the rat’s tail in the burger … In that situation, Hungry Johns could argue that there was no causation – ie, that something other than themselves was the true cause of the harm, but that would in turn lead to a consideration of vicarious liability which, put simply, means that the employer will be responsible for any acts of the employee that are done within the scope of their employment – which then raises further questions about whether contaminating food is within the scope of employment or not …, but for the moment it is likely that Hungry Johns would still be liable under the vicarious liability principle, at least without further facts. The fact that this was done deliberately would not destroy Eve’s case. However, consider again how the answer might change if it was a third party, not an employee who did this – perhaps wanting to upset Eve. In this situation Hungry Johns would have a much stronger argument that there is no causation (at least that it is not caused by them).

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