LAW203 takehome exam

3 Found helpful • 8 Pages • Essays / Projects • Year: Pre-2021 • Previously uploaded under: LAW203 - Torts

Exam question: SPECIFIC INSTRUCTIONS Advise the nominated parties below regarding ALL relevant tort actions (as covered wks 4-13 incl) that they may be able to bring or may have to face, including any defences that may apply. Assume all facts occur in NSW in 2014. Please label your answers as Q1, Q2, Q3, Q4. You MUST ATTEMPT ALL FOUR QUESTIONS. Each question is worth one quarter of the total marks for this exam. FACTS Q1.Peter was employed by a labour hire firm calling itself Muscle, who hired workers out by the day to work at various unskilled and semi-skilled jobs. One day Peter was sent by Muscle to unload a truck containing large bags of fertiliser, for a company called Jim’s Storage (JS). The bags had been stacked right to the roof of the truck, with no aisles between rows, so that the bags nearest the door had to be unloaded first, from the top. Peter had to hook the higher bags down with a metal hook, catch them as they slid, step backwards from the tray of the truck onto the platform of a waiting forklift, and drop the bag. Peter was working under the supervision of JS’s foreman, David, who was directing the method of work. At one point Peter stepped backwards onto the forklift, but the inexperienced new driver had lowered the platform without warning, so that Peter fell, breaking his leg. Then the pile of bags began to topple. David gave a warning shout and rushed in to try to hold up the pile. David managed to jump free, although he injured his back severely. His prompt action meant that Peter narrowly missed being crushed by the falling bags. However, Peter developed a chronic anxiety disorder and was never able to do this type of work again. It transpired that he had been buried briefly under a small avalanche whilst on a skiing holiday the year before, for which he was still receiving counselling. Advise Peter and David. Q2. Brenda was a 42 year old woman in the early stages of pregnancy who was injured while accompanying a friend’s child on a trail riding outing. She was trampled by a skittish horse in the stable yard after the ride and suffered multiple fractures of the pelvis. She had to undergo repeated X-rays and surgery. Brenda was advised by her doctor that the X-rays could cause serious damage to the foetus, and she should consider abortion. Brenda and her husband had been trying unsuccessfully for many years to have a baby, and had no other children. She reluctantly went ahead with the abortion without consulting her husband. The marriage began to disintegrate, and two years later he left her. Brenda suffered from ongoing symptoms and pelvic pain which was eventually traced to a golden staph (staphylococcus aureus) infection. She never had any children. A newspaper article Brenda read on the internet from 2013 included the following: ‘More than 1700 patients caught killer superbug infections in public hospitals in Australia last year. Golden Staph is a bloodstream infection that proves fatal in between 20-35 per cent of cases and it is used as a key measure of hospital quality and safety. The figures allow poorly performing hospitals to measure themselves against the hospitals with the lowest infection rates and lift their game. Patients can also use the data if they are wondering which might be the best hospital to use for surgery but they should be cautious about data for small hospitals where a single case could have a dramatic and unrepresentative impact on the hospital’s performance…Health ministers have signed up to a target that aims to keep rates of infection below 2 cases per 10,000 days of treatment… Four of the five major hospitals with the worst infection rates in the country are in NSW.’ Advise Brenda Q3. ‘Tramps’ was an entrepreneurial company that owned and operated an indoor trampoline venue. They developed a trampolining program for adolescents that they marketed to schools as a weekly sports activity. Lachlan Girls High investigated the program, determined that it was offered by suitably qualified instructors, and reasonably priced. The instructors were expected to wear Tramps T-Shirts and shorts while they worked, and to appear in uniform on the Tramps website. They had to provide all other gear themselves. They were paid a standard rate per session, but the more experienced and popular instructors could sometimes negotiate a higher rate of pay. The instructors were free to take on other work and most conducted classes elsewhere or trained private pupils as well. Girls in groups of 30 were taught by 5 instructors, with one teacher, Ms Grumpy, there from Lachlan High to maintain discipline. No previous experience on a trampoline was required. A sign at the entrance said ‘Warning. Trampolining can be dangerous’. The activities increased in difficulty as the course progressed. In term 2 a pupil, Catherine, was asked by the instructor to do a somersault and land on her feet in a correct dismount. Catherine had missed five of the previous ten classes, but the instructor was unaware of this since the attendance roll was kept by Ms Grumpy. Brushing Catherine’s mumbled objections aside, the instructor insisted she attempt the move. Catherine landed hard on the steel frame surrounding the trampoline and was injured. Advise Catherine, Tramps and Lachlan High Q4. Builders Ltd cleared a large area of land looking out over a bay in which commercial prawn trawling was undertaken. The local council approved the development. Builders Ltd cleared the trees and levelled the area, stockpiling all the debris (trees, sand and soil) at the edge of the land, adjacent to the bay. The approved plans said nothing about the removal of debris. However, under the relevant statutory powers the council could have made the removal of debris a condition. The council’s officer had inspected the site and carelessly failed to notice the dangerous size of the pile. Had she done so the council could have ordered its removal under another statutory power. About a month after the inspection, the pile of debris had become considerably larger and its sheer weight caused it to collapse. Tonnes of debris fell into the Bay. The commercial prawn trawlers, who operated under licences issued by the Council, sustained damage to their fishing gear while trawling the next day, and were unable to fish in the bay for 12 months. They were forced to purchase licenses elsewhere, and incur extra fuel costs in travelling to the new fishing grounds, which were more heavily fished and less profitable. Advise the prawn trawlers

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