03 - Torts Exam Paper Sept 2015
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LEGAL PROFESSION ADMISSION BOARD
SEPTEMBER 2015
TORTS
Time:
Three hours (plus 15 minutes reading time).
Permitted Materials:
This is an open book examination. Candidates may refer
to any books and any printed or handwritten material
they have brought into the examination room.
Instuctions:
This paper consists of
three (3)
questions.
Candidates are required to attempt
all three
questions.
Mark allocations for the three (3) questions are:
Question One:
30 marks
Question Two:
20 marks
Question Three:
10 marks
Each question must be answered in
separate
examination
booklets.
Each page of each answer must be numbered with the
appropriate question number.
Candidates must indicate which questions they have
answered on the front cover of the first examination booklet.
Candidates must write their answers clearly. Lack of legibility
may lead to a delay in the candidate’s results being given
and could, in some circumstances, result in the candidate
receiving a fail grade.
Candidates must NOT write their name on, or anywhere
inside, the answer booklet.
Answers submitted must be a candidate’s own work. Reproducing material without
attribution may constitute plagiarism. Sources quoted must be acknowledged in
accordance with accepted referencing conventions.
Candidates are warned that cheating and/or bringing unauthorised material into the
examination room may result in instant expulsion from the examination and may result
in exclusion from all further examinations.
This examination should not be relied on as a guide to the form or content of future examinations in this
subject.
©
2015 Legal Profession Admission Board
Question 1
In February last year, Paul and his parents visited the home of family friends, the
Armstrongs at Wycombe Rd, Neutral Bay.
During the visit Paul, his parents and the
Armstrongs sat outside to enjoy drinks near the family’s above ground pool.
The Armstrongs installed the above ground pool in their backyard four years ago.
Nine months before Paul and his mother’s visit, the Armstrongs built a wooden deck
around the pool. The "Swimming Pools Do-It-Yourself Guidebook," a manual that
came with the pool when they purchased it, advised against installing a deck around
an aboveground pool. It also contained instructions on installing the above ground
pool and suggested warning signs.
When they installed the pool, the Armstrongs posted two warning signs, approximately
30 centimeters long and 15 centimeters wide.
The signs read: "No Diving Around the
Pool”.
The dimensions of these signs complied with the dimensions suggested by a
web site they had consulted that summarized safety precautions adhered to by most
in-ground pool owners. The pool was 1.7 meters deep, but the water level had a depth
of about 1.2 meters on the day when Paul and his mother visited the Armstrong’s. On
the side of the pool there was a sign that read: “1.4 meters” in large red letters to
indicate the depth of the water.
The "Swimming Pools Do-It-Yourself Guidebook" also stated that pool-owners are
required by law in NSW to inform the local council of any development on their
property including the installation of pools; and to inquire if it was necessary to obtain
a Development Approval (DA) for their pools.
In July 2014, the Armstrongs wrote to inform the council about the installation of the
pool and the construction of the deck.
In response to their letter, the Council wrote to
say that a DA might be required but that it would be necessary to do a sight visit to
determine whether a DA was needed.
However, the council failed to arrange the sight
visit.
Section 9 of the application Regulations states:
[The] Council may inspect any improvements built on properties
entirely at its discretion.
Because of budget cuts, the Council has been experiencing difficulties including lack
of adequate personnel.
In August 2014, The Mosman Daily reported that because of
‘cost cutting, the Council is going through a crisis and is unable to keep with up with its
regular day to day work’ and that Mr. Attenborough, the Mayor of Mosman ‘is very
concerned’.
On the day of the visit, Paul asked his parents if he could swim in the pool with Cliff,
the fourteen-year old son of the Armstrong. Sandra, Paul’s mother agreed. At one
point, Cliff was standing in the water and Paul tried to stand up on Cliff’s shoulders.
Seeing this, Mrs Armstrong yelled out from across the pool: "No jumping or diving
boys, Paul, No!". Ignoring her, Paul dived from a sitting position atop Cliff’s shoulders,
attempting to do a shallow racing dive into the pool. Tragically, he did not succeed.
Paul struck his head on the bottom of the pool and was paralyzed as a result.
(Question 1 continues)
1
(Question 1 continued)
At the time of the incident, Paul’s 20-year-old sister Celine was not at the home of the
Armstrongs.
However her mother telephoned to inform her of the tragic event adding
that:
the pool has turned red with your brother’s blood and only God knows if he
is going to live or not.
I think your lovely brother is now a vegetable.
On hearing the news she suffered what her doctor described as ‘sever nervous shock’.
She is currently undergoing medication for her condition.
Coleman a retired solicitor and a friend of Sandra has advised that under of the
Civil
Liability Act
(NSW 2002), neither Paul nor Celine can bring any successful action in
torts against the Council or the Armstrongs.
With the aid of decided cases and references to relevant sections of the
Civil
Liability Act
(NSW 2002) explain why you agree or disagree with this advice
noting all possible potential causes of action and appropriate defenses.
Do not consider any causes of action against the manufacturer or seller of the
pool, or any products liability issues.
Do not discuss damages.
Question 2
In June 2014 Jonathan May purchased Pizza Kings, a pizza delivery franchise that
operates mainly in the Sydney metropolitan area.
As part of his operations, he hired
Marcus as one of several ‘Delivery Agents’.
Under the terms of what is described as
a ‘Contract of Engagement’;
•
All delivery Agents are required to provide and maintain their own vehicles.
•
The Delivery Agents are required to sign an 'Independent Contract Delivery
Agreement' for a fixed rate per delivery and they are provided with a delivery
instruction booklet. The Delivery Agents are not able to negotiate the per
delivery fee.
•
On the job training is offered to Delivery Agents and they are rostered to work
in shifts.
•
Delivery Agents are required to have an Australian Business Number (ABN)
and they issue Pizza Kings with weekly invoices which indicate that payment is
made on a per delivery basis.
•
Delivery Agents are not obliged to accept work or to work exclusively for Pizza
Kings.
•
Delivery Agents are offered but not required to wear polo shirts with the Pizza
Kings logo.
Most Delivery Agents wear the polo shirts
(Question 2 continues)
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(Question 2 continued)
At 9pm on 5 May 2015, Marcus was dispatched to deliver 5 boxes of pizza to 12
Shelley Street, Kings Street Wharf, Sydney.
It was the last delivery for the evening.
So on the way to the delivery, he picked up his boyfriend Moses, a fitness instructor
who had finished work at a nearby gym.
Delivery Agents for Pizza Kings are
expressly prohibited from taking anyone else with them when making deliveries.
Simon and fellow office workers who were working late in the office had ordered the
pizza. Marcus arrived at 12 Shelley Street at approximately 9.20pm.
On arrival he
was met by Simon in the office lobby.
Simon complained that the pizza was cold. He
yelled at Marcus and threw a box of pizza at him.
Moses, who was seated in the front
passenger seat of the car, saw the incident.
He jumped out and came into the lobby
and struck Simon several times in the face breaking his nose.
Simon intends to bring
an action against Pizza Kings.
What is the tort liability, if any, for Pizza Kings on the facts?
Question 3
Write short notes on any three of the following:
•
Remoteness of damage.
•
Contributory negligence under the
Civil Liability Act 2002.
•
What is the difference between ‘obvious risk and inherent risk’ under the
Civil
Liability Act 2002.
•
Res ipse loquitor.
•
Dangerous recreational activities under the
Civil Liability Act 2002.
END OF PAPER
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