Exam Paper (LAWS2400) PDF

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MACQUARIE LAW SCHOOL

LAWS 2400 Torts Take Home Examination SESSION 2, 2020 Due Date: Wednesday 11 November, 12.00pm-4.00pm

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INSTRUCTIONS The exam will commence at 12.00pm Wednesday 11 November 2020. Students must submit their answers to the examination paper by 4.00pm Wednesday 11 November 2020. (subject to those students with disability and special consideration adjustments) All answers to the examination paper must be submitted electronically by the time stated above by using the link on the iLearn unit page within the Assessment tab and entitled Final Exam. It is recommended that you use the Firefox browser when accessing iLearn. The examination will be marked out of 100 and will account for 40% of the final mark in this unit. The examination consists of two (2) hypothetical question. Each question is worth equal marks. Both questions must be answered. Answers to the examination questions must be written in the order in which the questions appear in the examination paper. Answers to the two (2) questions cannot exceed a total of 2,500 words. This is an upper word limit and a student need not write 2,500 words if he or she can answer the questions in less than 2,500 words. Footnotes are not required, but authority must be stated for legal principles and can be cited in-text. A bibliography is not required. Answers to the examination questions should contain appropriate analysis and argument supported by relevant authority. Complete citations are not necessary, as long as the case is easily identified. For Instance, it is sufficient to cite March v Stramare. Once the exam has commenced, students are not permitted to discuss the examination questions and answers or in any other way collaborate with other students or persons. If, for justifiable reasons, a student is unable to do the final examination at the above time or his or her performance in the final examination is adversely affected, he or she must submit a Special Consideration application, which, if granted, will enable the student to complete a supplementary examination. The supplementary examination will be held on 18/11/2020 by 12.00pm-4.00pm. Any student who does not submit answers to the final examination or supplementary examination, as the case may be, on time or at all, will receive a zero mark for this assessment item.

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Assessment Criteria Answers to the questions in the examination will be assessed according to the following criteria: Unsatisfactory (fail)

Minimal (pass)

Effective (credit)

Excellent (distinction)

Outstanding (high distinction)

Basic identification/ discussion, Some errors and/or omissions

Effective identification/ discussion. Few key errors or omissions.

Thorough and clear identification/discussion. Very minor/no key errors or omissions

Clear and detailed identification of all issues and principles/ insightful discussion. No or only insignificant errors.

Ability to identify and discuss the relevant legal issues and/or principles raised by the question

Very poor identification/ discussion with substantial errors and/or omissions

Demonstration of knowledge and understanding of the relevant law raised by the question

Very poor knowledge and understanding of the relevant law. Substantial errors or omissions.

Basic knowledge and understanding of the relevant law. Some key errors or omissions.

Effective knowledge and understanding of the relevant law. Few key errors or omissions

Thorough knowledge and understanding of the relevant law. Very minor/no key errors or omissions

Thorough and detailed knowledge and understanding of the relevant law. No or only insignificant errors or omissions.

Ability to analyse and/or apply the relevant law raised by the question, and reach conclusions.

Poor application of law. No or incorrect analysis, no or incorrect conclusions.

Basic application of law. Limited analysis and basic conclusions.

Effective application of law. Satisfactory analysis and reasonable conclusions.

Thorough application of law. Critical analysis and clear conclusions.

Thorough and comprehensive application of law. Critical analysis, clear and insightful conclusions.

Clarity of expression

Poor/unclear expression, replete with errors

Basic expression, but with errors

Effective expression, fluent with some errors

Clear and fluent expression, with few minor errors

Clear and fluent expression with no or only insignificant errors

Structure and organisation of argument

Poor/unclear structure and organisation of argument

Identifiable but basic structure and organisation of argument, with some weaknesses

Effective, sound structure and organisation of argument, some minor weaknesses

Clear structure and organisation of argument, very few weaknesses

Very clear structure and organisation of argument, with no or only insignificant weaknesses

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NOTICE ABOUT SUBMISSION OF ANSWERS TO THE EXAMINATION In submitting answers to the examination, students should log on to iLearn well before the due time for submission as it can take several minutes to log on and upload one’s answers to the examination paper. If any student experiences a malfunction with the iLearn system they must email their answers in an attachment, by the due time for submission, to: [email protected] **Do not email your answers to me if you have successfully submitted to turnitin.** If any student does email their answers they must also submit the answers through iLearn once the malfunction has been resolved. ****************************************************** EXAMINATION QUESTIONS START ON THE NEXT PAGE

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Question 1 Lucy was late for work. She was running along the footpath when she came to a busy intersection which was controlled by traffic lights. As soon as the traffic light for pedestrians turned green, Lucy darted across the road without looking out to make sure vehicular traffic had stopped. Meanwhile, Fred was also running late for work and was driving over the speed limit. He saw the light turn red for vehicular traffic but decided to run the red light. He was so preoccupied doing so that he did not see Lucy crossing the road. There was a collision. Lucy suffered two broken legs and multiple cuts and abrasions in the accident. She also suffered an internal injury and required urgent medical attention. Lucy was admitted to the emergency ward of the King George Hospital in Sydney. She required immediate surgery for her internal injury. Dr Sun, a Resident Doctor and employee of the hospital was the attending physician. Dr Sun had spent the previous night drinking with some buddies to celebrate the victory of Joe Biden in the US Presidential elections. He was still slightly hungover when he showed up to work. While operating on Lucy he managed to stop her internal bleeding but in the process he ruptured her spleen causing serious complications. A special procedure called arterial embolization could have been used to save her spleen. However Dr Sun did not think it necessary as he was sure the Spleen would self-heal. As it turns out, he was wrong. Lucy had to undergo a splenectomy to remove her spleen. The consequence of the removal of her spleen is that Lucy’s immune system is now compromised. For the rest of her life Lucy will require special medical care because of her compromised immune system. Lucy’s leg fracture was treated by Dr Jayne, the attending Orthopedic surgeon at King George Hospital. Fortunately the treatment was successful. It is expected that Lucy’s leg will make full recovery without any residual disability. Advise Lucy on the possible actions available to her in negligence against Fred and Dr Sun. Also discuss the vicarious liability of King George Hospital for the negligence of Dr Sun. Do Not consider defences. Include in your answer reference to relevant Civil Liability Act 2002 (NSW) (CLA) provisions and common law authority. You are to assume the CLA and common law applies to motor vehicle accidents.

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Question 2 Max is 8 years old and is in Year 3 at Mount View Primary, a public school run by the NSW Department of Education. Each afternoon after school, Max waits in the queue within the school grounds to catch a school bus. There is always a teacher on duty at the bus queue in the afternoons. One Wednesday afternoon earlier this year, Max was in the queue shouting and generally causing some disruption while playing on his new Nintendo Switch (a hand-held video game console). The teacher on duty, Mr Malcom, took Max to task about his behaviour and, as a punishment, confiscated Max’s bus pass and his Nintendo Switch and refused to allow him to board the bus. Students were prohibited from playing Nintendo Switches and similar hand-held gaming consoles on school grounds and the teachers had authority to confiscate them for 24 hours. Once confiscated, the teachers had been instructed to leave the confiscated item with the Student Office and students were instructed to approach the Office after 24 hours to retrieve the confiscated item to take home. Max left the school grounds on foot and decided to walk home, which is about two kilometres away. He had heard other students discussing a shortcut through neighbouring privately owned properties and he thought that might save him some time. One such property is owned and occupied by Mrs Briggs, a 79-year old retiree. While sharp as a tack when she was younger, Mrs Briggs’ family have noticed that Mrs Briggs has become more nervous and anxious as she is getting older. Her family have also noticed that Mrs Briggs seems to be managing this through self-medication with alcohol. Mrs Briggs is doing her property up for sale. As part of fixing up the property, Mrs Briggs has decided to remove the old pool. During the week before the Wednesday in question, Mrs Briggs had arranged for the pool fence to be removed and the water emptied from the pool in readiness for the subcontractors she had hired to jack hammer up the concrete shell. As Max was running through Mrs Briggs’ backyard, which does not have a physical fence on the boundary, he wasn’t really paying attention and ran straight into the fenceless empty pool. Max was knocked unconscious and suffered a severe laceration to his head which began to bleed profusely. It later became apparent that he also suffered serious spinal injuries in the fall. Mrs Briggs was in her backyard at the time enjoying her third afternoon whisky and saw Max fall

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into the pool and witnessed the resulting injuries. She suffered a recognised psychiatric injury. About a week later Mr Malcom discovered he still had Max’s Nintendo Switch in his bag. He had never seen one of these before and, having a backyard interest in electronics, decided to pull it apart to see how it worked on the inside. Unfortunately, during this process the motherboard snapped in two. Mr Malcom glued it back together but when it was reassembled the unit was no longer working. Mr Malcom has not been having a good time of late. He recently suffered an injury rock climbing at Mount View, part of the Mount View National Park, which is managed and controlled by Mount View Council. He and a mate, Dennis, had ventured out a few weekends ago and climbed some cliffs in the National Park which were popular with locals. Apart from a sign at the gates to the National Park declaring its name, there were no other signs in the park. Mr Malcom had used Dennis’s climbing equipment including a rope and carabiner, which had been recently purchased by Dennis from Climbing Equipment R Us. As Mr Malcom was half-way up a particularly steep cliff, he lost his footing – a small piece of the cliff had given way – and he fell about 5 meters onto a rock shelf below. During the fall, the carabiner holding the harness to the climbing rope snapped into two pieces. If it had been working as it should, it would have stopped Mr Malcom from hitting the ground. Mr Malcom landed heavily on his feet and suffered a serious injury to his ankle. He is currently recovering from surgery with his foot in a cast and has been told he may never regain full mobility in his ankle. Mr Malcom has also been trying very hard to get ahead and is thinking about moving out of teaching. He had, in partnership with his wife, started a business about 2½ years ago which packs flour, bread mix and cake mix into boxes for wholesale clients. They do not own the boxes, nor the ingredients that are packed into the boxes. They merely provide the packing service to the clients. The business has built up a healthy client base and Mr and Mrs Malcom were clearing around $10,000 per month during their second year of operation. The business is located on the outskirts of Mount View and is supplied with electricity by means of a cable owned and maintained by the Wollombi Electric Power Board, a local statutory authority. As this is a newly developed area, no other properties are currently supplied with electricity from this particular cable.

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Unfortunately, about 6 months ago, the cable was cut by workers, employed by Build It Better Constructions, using a mechanical digger. Build It Better Constructions is developing an industrial complex about 5 minutes down the road from Mr and Mrs Malcom’s business. The lack of electricity caused Mr and Mrs Malcom’s packing machines to stop working, shutting down their business for a whole month. Not only has their business lost that month’s revenue but a number of the clients of Mr and Mrs Malcom have since moved their packing requirements to other packing businesses, so their ongoing revenue has also significantly decreased.

The questions are on the following page.

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Mr and Mrs Malcom have come to see you and have recited the above facts. 1. You have been asked to advise Mr and Mrs Malcom on: a. whether Mr Malcom has any actions in tort for Mr Malcom’s injury to his ankle, and b. whether Mr and Mrs Malcom have any actions in tort for the lost income from their business. For any liability in negligence, the advice is to be limited to whether Mr and/or Mrs Malcom are owed a duty of care and any relevant defences. You are not required to discuss breach, causation, remoteness or apportionment of liability. 25 marks

2. You have further been asked to advise Mr Malcom on: a. whether Mr Malcom may be liable in tort (whether individually or concurrently with another person or entity) for the injuries suffered by Max, b. whether Mr Malcom may be liable in tort (whether individually or concurrently with another person or entity) for the injuries suffered by Mrs Briggs (Note: you do not need to consider whether Max is concurrently liable for this injury), and c. whether Mr Malcom may be liable in tort for the damage to Max’s Nintendo Switch. If Mr Malcom is concurrently liable with any other tortfeasor(s) you should identify the concurrent tortfeasor(s) and the basis for the concurrent liability. For any liability in negligence, the advice is to be limited to whether a duty of care is owed by Mr Malcom and any concurrent tortfeasor(s), and any relevant defences. You are not required to discuss breach, causation, remoteness or apportionment of liability. 25 marks.

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