Exam November 2020, answers PDF

Preview

Summary

Torts final exam 2020

Mark: 70%...

Description

UTS:Law Assignment Cover Sheet for Online Submissions Instructions for students: •

Please complete and include this cover sheet when submitting online assignment.

•

The cover sheet should become page 1 of your assignment – do NOT submit this coversheet as a separate document to your assignment.

•

Please note that by submitting this form you are agreeing to the following ACADEMIC HONESTY DECLARATION:

ACADEMIC HONESTY DECLARATION •

I confirm that I am aware of the University rules regarding plagiarism and academic misconduct.

•

I confirm that this assignment is entirely my own work and I have not previously submitted any part of it for assessment at UTS or any other institution.

•

I confirm that I have read and understood the current version of the UTS:Law Guide to Written Communication.

STUDENT DETAILS (to be completed by student) Student Number:

Click or tap here to enter text.

Family Name: Given Name(s): Subject Number:

70311

Subject Name:

Torts

Subject Coordinator:

Dr Nola Ries

Word Count:

2388

Date of Submission:

5/11/2020

UTS: LAW Version 1 February 2020

Question 1:

Weld Works (WW) v RR/Bill Pure economic loss

As an employer, RR is vicariously liable for any potential negligence caused by their employees (Hollis v vabu). Bill is described as a facility manager, which demonstrates his role as an employee of RR. Bill failed to ensure the sprinkler systems were working correctly. As this occurred during the course of employment (NSW v Lepore) RR will be liable for any potential damages caused by employee negligence. The following action will be brought against RR as vicariously liable for Bill’s conduct.

Duty: No established duty of care between WW and RR. WW may choose to base their claim on occupier’s liability (Hargrave v Godman). This places a positive duty on RR as an occupier to remove any hazards that may affect any adjoining or surrounding land. RR failed to take care to ensure their sprinkler systems were working, or to take steps to remove the pile up of flammable material in their facility, therefore owing WW a duty of care. Breach: 5B(1)(a) To be considered reasonably foreseeable, risk must not be ‘far-fetched or fanciful’ (Wyong v Shirt). Due to the increasing number of fires occurring, and the build-up of flammable material, RR knew or at least, ought to have foreseen the risk of a fire starting in the future. 5B(1)(b) The risk in question was the occurrence of a fire at a facility full of potentially flammable materials, this can be seen as significant (Shaw v Thomas). 5B(1)(c) The fire posed a risk to RR’s own business as well as the community and surrounding buildings. In these circumstances, a reasonable person, with knowledge of the increasing occurrences of fires, may have taken extra precautions to ensure their fire safety mechanisms were operational (Voli v Inglewood). In determining if the reasonable person would have taken precautions against the risk, the following is considered according to the calculus of negligence. s5B(2)(a) With the current stockpile of materials at RR’s facility, it is reasonable to assume that potentially flammable materials are likely to be present. The stockpile of materials, flammable of otherwise, significantly increases the probability of a fire, and therefore some harm occurring whether it be property damage, personal injury or economic loss (Bolton v Stone 1951). 1

s5B(2)(b) The likely seriousness of the harm was high, as a fire would likely cause serious damage to surrounding businesses and the community. More serious harm requires greater precautions (Paris v Stepney). s5B(2)(c) The burden RR faced in taking precautions to avoid the risk of harm would not have been significant enough to warrant taking no precautions (Romeo v conservation commission). To avoid the risk of harm, RR could have ensured the sprinkler was maintained more often, or by more than one person. Alternatively, they could have attempted to remove some of the material from their facility. The burden of taking precautions is reasonable. s5B(2)(d) There is an important social utility attached to ensuring there is no risk of fire to the surrounding community. The risk of allowing flammable material to build up and not taking more precautions to prevent a fire holds no social utility (Watt v Hartfordshire 1954). Causation: WW must prove on the balance of probabilities, that RR’s negligence caused the particular harm sustained (s5E). 5D(1)(a) factual causation can be determined by the use of the necessary condition test (Adeels palace v Moulbarak). This establishes that ‘but for’ RR’s failure to ensure their sprinkler system was working, the fire would not have occurred/gotten out of control, forcing WW to cease work. 5D(1)(b) It would be reasonable to impose liability on RR for WW’s economic loss, as there was a high risk of the same or greater harm occurring if the incident had not occurred. RR may argue that causing WW to cease work for 48 hours is not significant enough to impose liability for their subsequent loss of business, this would likely fail, they were still negligent in failing to take reasonable care. 5D(4) The type of damage sustained to WW, was a reasonably foreseeable consequence of RR’s negligence (Wagon Mound). The fire was foreseeable to cause damage to and impact the economic earnings of local businesses, therefore, damage was not too remote. Defences: It is possible for RR to argue the existence of an inherent risk according to s51. They may claim that the risk of a fire was a risk inherent to their operation regardless of the maintenance of their sprinkler system. This argument is likely to fail as the risk was not truly inherent, it could have been avoided by RR taking reasonable care. RR will be found liable for negligence.

2

Neal v RR Personal Injury/death

As outlined in s2 Law reform (miscellaneous provisions) act 1944, the cause of action survives the death of a plaintiff, and may be brought by Neal’s estate. His partner Graham may claim compensation in accordance with s4 of Compensation to Relatives Act 1897-1969 (NSW).

Duty: As a business providing a service to the local community, RR owes an established DOC to Neal. Breach: same as WW v RR Causation: same as WW v RR except as below. 5D(1)(a) But for RR’s negligence, the fire would not have broken out, causing Neal to sustain respiratory distress. According to the egg-shell skull rule, the existence is Neal’s chronic lung disease is immaterial to liability. RR will be liable for the full extent of his harm even though Neal is more susceptible to respiratory personal injury (Smith v Leech). 5D(1)(b) It is reasonable to impose liability for respiratory related injuries for a fire caused by negligence. As the scenario states, many residents sustained temporary breathing difficulties without a pre-exiting condition, therefore this kind of damage was not too remote. RR may argue they are not responsible for Neal’s death, as the negligence of Neal’s treating doctor resulted in a novus actus interveniens, breaking the chain of causation. However, as established above, if not for RR’s negligence, Neal would not have required treatment. This may result in RR and the doctor being concurrently liable for negligence resulting in Neal’s death (Chapman). In this case, Neal’s estate may bring more than one cause of action to recover 100% of the loss.

Graham v RR Pure Mental Harm

RR may be liable for negligence causing pure mental harm. For Graham to succeed, he must satisfy elements according to s30-32. As Graham was Neal’s partner, he constitutes a close family member under s30(5)(b), he is not limited on recovery for pure mental harm under S30 and if successful, will recover in accordance with s30(2)(b). 3

Graham’s condition of major depression constitutes a recognised psychiatric illness as required in s31 (Tame v NSW). Duty: S32(1) It is reasonable to presume that RR would have foreseen or ought to have foreseen the risk of harm, and the subsequent injury or mental illness to family members of those who sustained injury would have been reasonably foreseeable (Chapman). There is no relationship between Graham and RR, however the claims can be based on a previous finding of liability for the personal injury/death of Neal. As Neal’s partner, Graham can be regarded within the class of persons who were foreseeable (Chester v Waverley council). Graham is presumed to be of normal fortitude. In the circumstances as considered below, sudden shock likely. S32(2)(a) The mental harm suffered was said to occur after Neal’s death, psychiatric injury resulting from sudden shock is very likely, an immediate reaction after finding out his partner has suddenly died. S32(2)(c) Although Graham did not witness the Neal’s death, the nature of their close relationship and partnership should be taken into consideration. S32(2)(d) there was no pre-existing relationship between Graham and RR, however he can be foreseen as a particular class of persons to which he was one. Breach: same as WW v RR Causation: Same as WW v RR, had RR taken reasonable care, Neal would not have died, and Graham would not have sustained psychiatric illness.

Neal v EPA Non-feasance- special statutory power

EPA may be liable for statutory non-feasance, in failing to exercise their statutory duty to ensure compliance with safe waste storage procedures, subsequently causing personal injury/death to Neal. EPA can be characterised as a statutory authority in accordance with s41. Special statutory powers (s43A) have been conferred onto the authority by the Protection of the Environment Administration Act 199. Duty: Common law principles outline a list of factors that must be considered in determining if a DOC should be imposed on a public authority (Graham v Ryan). Firstly, a reasonable public authority would reasonably foresee that failing to follow up on the warning which had been issued 6 weeks earlier, for RR’s non-compliance, might result in

4

harm. The nature of the warning itself, as an indication of a potential hazard, confirms the authority was aware of the risk and the potential of harm occurring. The statutory authority had special statutory powers conferred onto it to regulate recycling and waste facilities, in this way, EAP was in a position to control the situation, as they are responsible for doing routine checks of waste storage at facilities, ensuring compliance with regulations. It could be said that Neal was vulnerable, not only as a member of the public, but due to his respiratory condition. It could be said that as a result of the fire, any member of the community could be “vulnerable” to the air pollution. Neal was particularly vulnerable. EAP had direct knowledge of the risk of fire, as a warning was issued to RR. The imposition of a DOC would not impose liability on quasi-legislative functions, instead, the imposition of a DOC would enforce the role of the statutory authority. Breach: It is unlikely that EAP will be found to be in beach of the DOC as outlined in s43A(3). The scenario states that an increase in demand for inspections meant they had not yet followed up on the risk warning they issued. In this case it cannot be said that their omission was so unreasonable that no authority having that statutory power could properly consider it to be a reasonable exercise of power. Defence: EAP, as a statutory body will argue no liability in accordance with s44(1), which states that an authority is not liable for failure to prohibit or regulate any activity under their power. Therefore, EAP’s failure to properly regulate the waste storage of RR cannot satisfy a claim of non-feasance.

Q1 word count: 1711

5

Question 2:

Peter v Brad Trespass to person: Battery

Brad may be liable for trespass to person against Peter for tripping him in the bar, if the following elements of battery can be proven. Trespass torts are actionable per se and as such any damage is immaterial to liability. The act of brad sticking his foot out to trip peter can be established as a positive, voluntary act, as opposed to a mere omission (Innes v Wylie). Brad’s acts were conscious and willed (Falconer). This action satisfies the requirement that Brad causes a direct interference with Peter’s body, this contact was a direct result of Brad sticking his foot out. There was no novus actus interveniens. Unwanted contact of any kind can amount to battery (Collins v Wilcock). The facts state Brad tripped Peter, which is not a kind of physical contact which is generally acceptable in ordinary life, therefore can be characterised as unlawful, Peter did not consent (Darby v DPP). Court is likely to find Brad liable for battery.

Brad v Peter Trespass to person: false imprisonment

Peter may be liable for trespass to person against Brad for trapping him in the bathroom, if the elements of false imprisonment can be proven. The facts outline that Peter’s act of shoving a chair against the bathroom door was done voluntarily, with the intention of locking Brad inside. Peter’s actions were conscious and willed (Falconer). Peter also placed a “closed for cleaning” sign on the bathroom door, again indicative of a positive, voluntary act. These acts together, directly caused Brad to be stuck in the bathroom for a period of time, this outcome was not merely consequential (Iqbal v prison officers association). False imprisonment requires proof of total restraint of the plaintiff. This is satisfied as the confinement was not accidental or inadvertent, there was no reasonable means of escape available to Brad (Zanker v Vartzokas). Total deprivation of liberty for any period of time satisfies this element. Peter will likely be found liable for false imprisonment.

6

Kenny v Perisher resort/Mae Personal injury

Kenny may bring an action against Mae, and therefore Perisher Resort as a joint tortfeasor due to the relationship of principal and agency. The following action will be directed at Perisher, however Mae is a joint tortfeasor and will also be liable if claim is successful.

Duty: As service providers, Perisher resort owes Kenny an established DOC Breach: 5B(1)(a) the risk of injury in the commission of a dangerous recreational activity is not ‘far-fetched or fanciful’ and can be seen as reasonably foreseeable especially to a group of beginner snowboarders. Perisher has provided signs warning of the risks, they foresaw physical injury. 5B(1)(b) The risk was not insignificant; the sign states death is possible. 5B(1)(c) in the circumstances the reasonable person may have provided extra instructors to ensure the kids didn’t stray from the group, the facts on this are silent. 5B(2)(a) The probability of one of the kids getting hurt if care not taken was high given their beginner status. 5B(2)(b) likely seriousness of harm high, as stated in risk warning 5B(2)(c) the burden of taking extra precautions such as employing more instructors for supervision would have outweighed any potential risk of harm. It is unlikely there will be a finding of a beach of DOC, however, if the court does make this finding, defences are as follows. Defences: Perisher may argue that Kenny was contributorily negligent in choosing to stray from the group and onto an intermediate slope. They must prove that Kenny failed to take precautions that a reasonable person would take (froom v butcher). Consideration will be made to his age, and how a reasonable person of his maturity would behave. It could be argued that they are not liable for an obvious risk of a dangerous recreational activity (s5L). This could succeed as Kenny was engaged in a dangerous recreation activity (5K) (favlo) and his injury was a result of the materialisation of an obvious risk. However, Kenny’s age could invalidate the argument as the risk of harm may have not been obvious to someone of his age (doubleday). It could also be argued that they are not liable for harm sustained by recreational activity as there was a risk warning provided (s5M).

7

Q2 word count: 677

8...