Exam 2014, answers PDF

Preview

Summary

Download Exam 2014, answers PDF

Description

LAWS1114 TORTS B – FINAL EXAMINATION, Semester Two, 2014

LAWS 1114 Final Examination 2014 Student Feedback and Marking Guide General Comments: Please note that the example answers given in this document are simply that - examples. There is no such thing as a single “model” answer to any of these questions. The level of detail provided may be in excess of that which was possible in the time allowed and the purpose is therefore simply to give you a thorough feel for the relevant issues, law and, most importantly, the key methodological and substantive errors students made. Overall results this year were as follows: 7: 6: 5: 4: Fail:

6.6% 22.5% 42.3% 27.7% 1%

Average Mark: Lowest Mark: Highest Mark: Most popular question: Least popular question:

(2013- 4.4%) (2013-17.8%) (2013-36.6%) (2013-36.3%) (2013-5%)

(2012- 3.4%) (2012- 11 %) (2012- 37.7%) (2012- 42.4%) (2012- 5.5%)

(2011- 3.0%) (2011- 10.6%) (2011- 31.4%) (2011- 47.9%) (2011- 6.9%)

69 42 90 Qu 2 Qu 3

This is the best set of results for some years, which is very pleasing – minimal failure rates and a very healthy number of students in the D (6) and HD (7) categories. The most significant changes from last year that were made to the course were (a) the introduction of a tutorial preparation component in the course, worth 10% and (b) a very clear focus in the early parts of the course on problem solving skills and common errors that students tend to make. Average marks for each question were almost identical, although on average students performed marginally better in Question 4 than the other questions. The highest fail rates were in the essay questions, but these also commanded some very good marks, so the likely explanation is that weaker students picked an essay question as a last resort; or because they were running out of time. The question in which students achieved fewest high marks (6’s and 7’s) was Question 3. One of the worst aspects of student performance related to the presentation of their answers. Writing was often barely legible and scribbled, ‘dot-point’ notes often appeared where full sentences and arguments were needed. Although time in a closed-book exam is of course limited and economy of writing style is encouraged, students cannot get credit for an idea that they may have in their head, but which they have not explained and illustrated on the paper; and they must not simply write a series, or list of ‘mental prompts’ and hope to get credit for having accurately stated the law. Another significant defect appears to be in how to deal with difficult policy questions in essay-style questions. Students just tended not to answer the parts of the essay questions that required them to state arguments and reasoned opinions. They tended to just regurgitate knowledge without demonstrating critical thinking about it.

Page 1 of 14

LAWS1114 TORTS B – FINAL EXAMINATION, Semester Two, 2014

Question 1 1.

Examiner’s Observations:

These essay questions were well done by a significant number of students (there were lots of health 7s and 6s), but also carried high fail rates of 17 and 19% respectively. The most common problem was that students ignored parts of the question they did not want to answer. In particular, they shied clear of the ‘should?’ parts of each question- these are just as important as the ‘’does’’ or ‘what?’ part and require students to set out some arguments and reasoned opinions. The failure to make arguments or state reasoned opinions relating to the ‘should’ questions resulted in unbalanced answers. 2. Marking Guide: Question 1: (a) “Does the law of negligence do enough to protect purchasers of real estate against the economic risks associated with defective building work? Should the extent of such protection discriminate between commercial and domestic purchasers? This question required students to (a) state and understand the rules governing the negligence liability of builders and councils in respect of defective building work (b) take a reasoned view on whether or not they are satisfactory from the point of view of the amount of protection afforded and (c) take a reasoned view as to whether or not protection should vary according to whether the purchaser is a ‘commercial’ or ‘domestic’ purchaser. The best answers discussed both the rules and the various policy concerns. The intent was that students discuss the principles governing the duty of care question in cases where the building work or the careless exercise of statutory powers or functions in relation to building work or planning leads to pure economic loss (‘defective’ building work). Key authorities needing to be discussed were Bryan v Maloney; Woolcock and Brookfield (HCA) (in relation to builders) and Sutherland Shire Council v Heyman (HCA) and Makawe (NSWCA) in relation to councils. Students might also have drawn in discussion of Woolahra v Sved, Shaddock v Parramatta BC or Port Stevens v Booth where local authorities have made positive misrepresentations. Students needed to be able to demonstrate awareness of the operation of the multifactorial or salient features approaches to the duty question in new cases (Caltex v Stavar) and illustrate and explain the way the various factors or features have been deployed in the caselaw. Key criteria for discussion in the builder cases included: foreseeability; assumption of responsibility; reliance (specific or perhaps general); vulnerability and conflict with contractual risk-allocations (eg inconsistencies between the duty alleged by the purchaser and the duties negotiated by the builder with the original owner/developer). Criteria mentioned in the council cases included assumption of responsibility and reliance (specific or general); vulnerability; control over risk; knowledge; consistency of duty with statutory schemes; and indeterminacy (of time). As regards the question whether it should make a difference whether you are a commercial or domestic purchaser, all reasonably argued views were accepted. It was important that students realised that the courts do not draw an absolute distinction between the two, but that the distinction might be loosely relevant to the question of vulnerability. It may also be hard to define exactly who constitutes a ‘commercial’ purchaser; and many premises will be mixed-used. Results: 7: 14% 6: 18% 5: 27.5% 4: 23.5% Fail: 17.5% The most common methodological errors were: 1. Failure to properly answer the question eg failure to consider council liability in respect of defective building work. 2. Failure to achieve a proper balance between the two parts of the question - eg failure to consider adequately whether the extent of protection between commercial and domestic purchasers should differ. 3. Failure to properly structure the answer eg failure to have a clear introduction, body of argument and conclusion. The most common substantive errors were: 1. Insufficient depth and accuracy of analysis of relevant cases in the context of the question eg Makawe and Brookfield. 2. Failure to actually use the relevant cases to make an argument in answering the question. 3. Failure to distinguish clearly between the policy issues concerning builders/design professionals and councils. 4. Failure to properly consider key criteria relevant to builders/design professionals and key criteria relevant to councils.

Page 2 of 14

LAWS1114 TORTS B – FINAL EXAMINATION, Semester Two, 2014 (b) When, if ever, are employers liable for deliberate torts committed by their employees, such as physical or sexual assaults? Should the employer be liable in such cases and (if so), why? This was mainly a question about vicarious liability, but could also draw in discussion of the extent of non-delegable duties of care owed by employers to persons injured by their employees. Students needed to be able to state the principles according to which vicarious liability may attach to an employer for the deliberate torts of employees, identifying the various tests stated in Deatons v Flew, Lepore v NSW, Sprod and Blake. The narrower approach in Deatons v Flew (which focuses on (a) acts which further the interests of the employer or (b) which are expressly or impliedly authorised or (c) which are incidental to the employee’s job) is clearly inadequate to bring vicarious liability home to the employer in cases of physical or sexual assault and it is for this reason that more liberal approaches are pursued by some of the judges (Gleeson CJ, Kirby J, Gaudron J) for social policy reasons in Lepore (and, more clearly in some overseas cases like Lister). Students should know and understand these more liberal approaches (‘sufficiently close connection between the tort and the job; estoppel). They should be able to illustrate the way in which the various tests have been deployed in the cases and be able to discuss some of the policy considerations at stake in the debate about vicarious liability for deliberate torts (compensation of victims, deterrence and encouragement of employers to take more precaution to prevent assaults, assignment to an employer of the costs of risks of its ‘enterprise’, achieving a just distribution of the costs of injury as between victims and businesses etc). The might also discuss the relative merits of tackling the issue through the respective doctrines of vicarious liability on the one hand, or non-delegable duty on the other (the approach favoured by McHugh J in Lepore). One reason why courts appear to be reluctant to go down the non-delegable duty route is that this might open up employer or school liability for sexual abuses suffered by employees/students at the hands of anyone, where that employee or student is within the notional scope of their care. The vicarious liability route enables liabilities to be more particularised, limiting liability for the acts of employees; and further limiting liability to particular cases where the job carries with it special risks for others. Results: 7: 10% 6: 16.5% 5: 27.5% 4: 27% Fail: 19% The most common methodological errors were: 1, Failure to fully answer the question -eg failure to consider adequately whether an employer should be liable in such cases and (if so), why? 2. Failure to achieve a proper balance between the two parts of the question (see 1 above). 3. Failure to properly structure the answer -eg failure to have a clear introduction, body and conclusion The 3 most common substantive errors were: 1. Insufficient depth and accuracy of analysis of relevant cases like Lepore, Flew, Sprod and Blake. 2. Failure to properly use these cases to actually answer the question. 3. Writing a lot of irrelevant information about when the law judges a relationship to be one of employment. This was not what the question was asking about.

Page 3 of 14

LAWS1114 TORTS B – FINAL EXAMINATION, Semester Two, 2014

Question 2: Alumina Ltd runs an aluminium factory on a remote island off the north coast of Queensland. The factory runs on natural gas supplied by a large gas corporation, Gasco. The gas is piped from Gasco’s facility on the mainland to Alumina through a system of holding tanks and pipelines owned and operated by a separate company, PipeCo. Owing to the carelessness of PipeCo in failing properly to inspect and maintain the pipeline, a leak develops at one of the holding tank facilities, resulting in an explosion and a serious rupture of the line. 1. Alumina has to spend an extra $500,000 to make alternative arrangements for gas to be delivered to its factory by ship whilst the pipeline is repaired. It also obliged to pay Gasco $70,000 for gas lost from the pipeline as a result of the rupture. It is unable to recover any of these costs from Gasco, because the supply contract excludes Gasco’s liability for ‘any financial loss flowing from the interruption of gas supply’. Alumina did not attempt to renegotiate any of the terms of the supply contract before signing it; it did not obtain any insurance cover against interruption of supply (which is apparently available at commercial rates in the market) and it did not have any back-up system installed in the factory as a precaution against emergencies such as this one. 2. One of Alumina’s top manufacturing engineers is injured in the explosion. His injury causes a slow-down in production at the factory, resulting in significant losses of profit ($2 million) for Alumina and additional costs in searching internationally for a suitable replacement worker ($50,000). Advise Alumina as to its prospects of bringing a successful claim in the tort of negligence against Pipeco for its various losses. 1.

Examiner’s observations:

This was the most popular question and it was pretty well done. Most students were on the right track. Results: 7: 8% 6: 15% 5: 30% 4: 40% Fail: 8% The most common methodological errors were: 1. Writing notes, instead of a proper explanation of the legal rules. Here is a typical example from one paper: Rule: Multifactoral Approach (Perre) 1.Foreseeability 2. Indeterminacy 3. Autonomy 4. Vulnerability 5. Knowledge Salient Features (Caltex) -nature of harm -foreseeability -directness -ascertainability of class

This is not a statement of the legal rules - it is simply a series of mental prompts for the student. It does not show whether or not the student knows the meaning of any of these, concepts or state how the rules regarding duty actually work. They need to be explained more fully. 2. Rushing straight to McHugh’s ‘Perre factors’, without first considering precedent. Remember you only engage the multi-factoral approach to duty if you are beyond the reach of the existing cases. So you needed to consider how close this case was to the precedents of Caltex, Johnson and Penberthy before deploying it. You also needed to consider and compare the precedents as you considered questions like vulnerability. 3. Application of precedent- lots of students simply assumed that because there were some factual similarities between this case and the precedents, that they could automatically simply be applied without further thinking. This was especially common regarding Penberthy, where it was common to assume that because the plaintiff in that case succeeded when its employees were injured, so must Alumina on the current facts.

Page 4 of 14

LAWS1114 TORTS B – FINAL EXAMINATION, Semester Two, 2014 The most common substantive errors were: 1. Thinking that A owned the gas and that all its losses were therefore consequential on property damage. Although it wasn’t stated, this was very unlikely- why would it have agreed to cover Gasco for any losses of gas, if the gas did not belong to Gasco? 2. Failing to spot that A’s 2million loss of profit flowed from the injury to its employee, not from interruption of gas supply. This led to much irrelevant analogising with Spartan Steel, when the analogy should really have been with Penberthy. 3. Thinking that the 2 million lost profit was consequential on personal injury and therefore straightforwardly recoverable. It was not consequential on any personal injury of Alumina. The loss was purely economic. 4. Lack of understanding of the ‘autonomy’ factor. Simply saying that a duty would not impair D’s commercial autonomy because D was acting negligently, or because it was D’s job to run the pipeline properly was not good enough. The point was that D was already probably under a contractual duty to Gasco to use reasonable care; and was under a general duty others not foreseeably to cause personal injury or property damage- so saying that D owed Alumina a duty to be careful not to cause an explosion that might affect A’s economic interests didn’t add any additional burden. 5. Lack of understanding of the knowledge factor. This is not just about D knowing actually or constructively that its conduct may cause harm in the abstract. It is about showing that D knew about the risk to P individually or as a member of an ascertainable group. This is a way of dealing with indeterminacy problems. 2.

Marking Guide:

This problem focused on problems of relational economic loss and (analogously) pure economic losses suffered by an employer as a result of the negligent injury of one of its employees. The facts were loosely analogous to Caltex; Spartan Steel; Johnson Tiles v Esso and Barclay v Penberthy. The idea for the problem was taken from Apache Energy Ltd and Others v Alcoa of Australia Ltd (No 2)[2013] WASCA 213, but students were not expected to know this authority as it was not mentioned in any detail in the lectures or in the text. They were however expected to demonstrate knowledge and understanding of the principles governing the existence of a duty of care set out in Caltex, Perre v Apand, and Barclay v Penberthy; and to be able to compare and distinguish the facts of the current case so as to propose an informed solution. Advice to Alumina on Negligence Claims- Alumina v Pipeco Breach is effectively conceded (‘carelessly’) so that the main issue is whether Pipeco owes a duty of care to Alumina to avoid pure causing pure economic loss either through the disruption of gas supply; or through injuring its employee. It is possible that A might be able to bring the actio per quod in respect of the loss of its employee’s services, but coverage of this point was not demanded by the question, which asked for advice about possible claims in negligence. 1.

Losses flowing from interruption of Gas supply.

Duty of Care? The Law Precedents: The case may well fall outside existing precedents, although the facts are arguably close to both Caltex and Johnson Tiles. The 70,000 liability for lost oil which A incurred to Gasco as a result of the incident looks similar to the successful claim made by AOR in Caltex for the value of the oil lost, the risk of which AOR was contractually obliged to bear in much the same way that A has to bear the costs of lost gas on the facts of the current case (see also, analogously, some of the successful claims made by purchasers of contaminated cattle or meat in McMullin v ICI; and the unsuccessful claim made in the Aliakmon). The 500,000 cost of arranging alternative transportation of gas also looks similar to the claim successfully made by Caltex for the additional costs of having to convey oil by another route for refinement. However, one should be wary of automatically leaping to the conclusion that both A’s claims will inevitably succeed on the basis of Caltex for three reasons: (a) there are some possible distinguishing features of this case (eg the damage to the pipe was caused by D, not a third party); (b) there are claims since Caltex based on interruption of Gas supply that have failed (see Johnson Tiles v Esso) and (c) since Caltex, the High Court’s reasoning has changed significantly, with a departure from the language of proximity and the introduction of an emphasis on questions of vulnerability (see eg Brookfield, Woolcock). It is important therefore to consider the relevant legal principles as they have been developed in Caltex and since; and apply them to these facts afresh.

Page 5 of 14

LAWS1114 TORTS B – FINAL EXAMINATION, Semester Two, 2014 Legal Principles: The principles of law governing duty in Caltex in 1976 were stated differently by members of the court. All (except perhaps Murphy J) were satisfied that the mere foreseeability of economic harm was not enough for a duty, but thereafter the members of the Court differed in their approaches as between: a requirement of proximity based on salient features of the case (Steven J); the foreseeability of economic harm to the plaintiff individually and not as a member of an unascertained class (Mason and Gibbs JJ); and the foreseeability of some physical effect on P’s property by virtue of its special ‘physical propinquity’ to the property damaged (Jacobs J). Since that time, proximity reasoning has fallen out of favour in the High Court. As a determinant of the duty question, it has proven unhelpful owing to its abstraction. The approach likely to be taken outside existing precedents is now that set out in Perre v Apand. The ...