your answer as a Microsoft Office

INSTRUCTIONS

Read these instructions carefully and then answer both questions. Submit your answer as a Microsoft Office (doc or docx) document via the Exam dropbox on the graduate Torts Law Canvas site.

Status

The Torts Exam is the third of three assessment items in the 2019 graduate Torts Law class.

Answering

Read and answer both questions (question A and question B) of this examination paper. Each question is worth a maximum 25 marks and has a word limit. Each question requires you to provide pertinent accurate legal advice that addresses a fact scenario. Similar scenarios were discussed in the graduate Workshops during the semester.

Citation

Cite pertinent case law in AGLC4 format in answering both questions. Summary citation (ie just the parties rather than the year, volume, law report name and page) is permissible in the body of your answer as long as the full citation is provided in footnotes. Do not park discussion in the footnotes. Footnotes are for citation only. Do not provide a bibliography.

Format

Your response to each question consists of straight prose. Do not use dot points. Do not use a letterhead or salutation (eg ‘Dear X’).

Authority

You must substantiate your advice by providing a minimum of five case citation and / or references to pieces of legislation for each question. Note that pertinent means relevant, something that is not the same as transcribing footnotes from a textbook.

Length

There is a flat 1,500 word limit (ie not the common ‘plus/minus 10%’) for each question, an aggregate 3,000 words for the overall exam. That wordcount is exclusive of footnotes. As with the guidance in assessment items 1 and 2, make every word count: do not waste words and do not add words ‘just for the sake of it’.

Marking

Exam Marking is based on the following criteria, consistent with the unit learning outcomes noted in the Unit Outline –

  • compliance with these instructions
  • demonstrated awareness and understanding of relevant legal principles and issues
  • concise and cogent expression at the graduate level.

Marking will reward people who demonstrate an understanding of legal issues, engage with detail (eg draft and carefully proofread) and emphasise analysis rather than description. It will also reflect the time available for drafting and revision.

Extenions

Extensions will be granted only in extreme circumstances. Students have been given seven days to compete the takehome exam, rather than the more common three days. There is no provision for late submissions. 

Question A – Negligence Question

Ashton is newly appointed Associate Professor at the University of Belconnen. At the age of 62, Ashton has just passed his driver’s licence test and is currently on a ‘Provisional’ licence. In celebration, he has purchased a new Volkswagen utility (which he thinks looks cool, especially when his blue healer/kelpie cross dog hangs its head outside the utility’s window).

Ashton left his home at 9:00 a.m. on Thursday, July 12, 2019, for a doctor’s appointment in the Canberra suburb of Aranda. His appointment was at 9:30 a.m. and it would take him at least 25 minutes to reach his doctor’s office. As Ashton pulled into traffic in Mitchell, he noted that a red light on his dashboard was on. He was concerned, because he had just taken the car in for the 1000 kilometer routine service and oil change at Ute Beaut Auto Repairs in Belconnen the day before. 

The warning light, was in fact an ‘oil pressure warning’ light and if Ashton had read the instruction manual for the car, Ashton would have known that the warning light indicated that catastrophic failure of the engine was imminent and that he should pull the car off the road as soon as it was safe to do so.

Uncertain as to what the light meant, Ashton elected to press onto his medical appointment and then book the car into Ute Beaut Auto Repairs for a further service. Having made his decision, Ashton continued down the road toward his doctor’s office. About ten minutes minutes later, when Ashton was less than a kilometer from his doctor’s office (and about eight kilometers from where the warning light came on), he saw smoke coming from under the hood of the car. He tried to pull over to the side of the road, but before he could make it, his engine died completely. As the volume of smoke became even greater, Ashton got out of his car, leaving it in the right hand lane of a dual lane road. Immediately after he exited the car, a small fire erupted from under the hood of the Volkswagen, which began to spread through the car. Using his cell phone, Ashton dialed 000 and requested fire department and police assistance.

Before fire or police units arrived, a car driven by Trevor collided with the back of Ashton’s
car. Trevor suffered serious injuries as a result of the collision. The police determined that although Trevor had been wearing a seatbelt at the time of the collision, Trevor had been drinking beer all afternoon and had blood alcohol levels of 0.1 (significantly over the legal limit). Trevor claimed that he did not see Ashton’s car in time to stop because an 18-wheel truck in front of him had obscured his view of what was in the lane ahead. When the truck changed lanes just before reaching Ashton’s disabled car, Trevor  was suddenly able to see Ashton’s car, but not in time to stop.

A subsequent investigation revealed that Ashton’s car engine seized because it ran out of oil.  The fire was a result of the heat build up due to the increased friction in the engine. The apprentice mechanic (Leonie) at Ute Beaut Motor Repairs had failed to replace the motor engine oil seals properly and all the oil in engine had drained away while Ashton was returning from Ute Beaut Motor Repairs the previous evening.

Ashton’s car has been assessed by his insurance company Bingle Pty Ltd (Bingle) and determined to have been totally destroyed and therefor uneconomical to repair, due to the fire which spread through the car. The collision with Trevor’s vehicle caused minor damage to the Volkswagen, which would have cost around $1,000 to remedy. The as new replacement cost of Ashton’s Volkswagon is $53,000 (Ashton had purchased the vehicle two weeks before the accident).

Trevor’s car suffered serious damage to the body and engine, which has cost $11,000 to repair.

Trevor was hospitalized for two months, as a result of a broken shoulder and a broken hip. As a result, Trevor will now need to walk with a stick for the rest of his life and will suffer ongoing intermittent pain in his hip. Trevor’s out of pocket medical costs came to $22,000. Trevor will be off work for three months, resulting in a before tax loss of wages of $27,000.

Ashton’s liabilities for the fire damage to the car and the subsequent collision is fully indemnified by an insurance policy with Bingle. It is a term of this insurance policy that Bingle is able to bring actions in negligence on the behalf of Ashton to recover damages. You have been engaged by Bingle to provide advice on both Bingle’s liability (as Ashton’s insurer) to Trevor under the law of negligence, as well as any actions in negligence Bingle (acting for Ashton) may have to seek compensation from Ubeaut Motors and Trevor.

Question Specific Instructions

Your answer should consist of two separate parts.

In Part One consider Ashton as the plaintiff and Bingle’s prospects (as Ashton’s agent) of recovering damages in negligence against Ute Beaut Motor Repairs and/or Trevor.

In Part Two consider Trevor as the plaintiff and his prospects of recovering damages in negligence against Ute Beaut Motor Repairs and/or Ashton/Bingle.

For both parts you should use the six question problem solving approach used in the Torts workshops.

For both parts you will need to identify the relevant parties, any duty of care relationships, whether a breach of that duty of care has arisen, whether causation is present, whether any applicable defences apply (including contributory negligence and apportionment) and advise on what damages will be available as a remedy. Assume that there were no defects in the design or manufacture of the Volkswagen and that there was no negligence on the part of the ACT police services or ACT fire services or the driver of the 18-wheel truck.

Question B – Defamation and Trespass against the Person

‘Canberra Comes Out’ is, a monthly popular culture and celebrity magazine, which is famous for its celebrity scoops. This month’s proposed issue includes the following stories:

Part 1 – TV CHEF IN JUNK FOOD SHAME!? ? – a two-page story about a Canberra TV chef, who prides herself on her healthy recipes, who has been spotted buying a double quarter pounder hamburger in her local ’Golden Archs’ fast food restaurant. In fact, the chef was accompanied by a film crew and was buying the burger as part of an expose on sugar levels in fast food, for a new series of her show. The article does not mention this. The chef is not named but is recognizable from the photos.

Part 2 – EXPLOITED FOR THE SAKE OF FASHION? ? a four-page feature in which claims are made about Bredlabobe Pty Ltd, an indigenous designer clothing company, employing 220 indigenous staff in the ACT and founded for the purposes of making profits for its shareholders. The article suggests that the company is:

  1. exploiting their shop workers in the ACT by paying below minimum wages; and
  2. destroying the environment through their continued use of highly toxic dyes.

Part 3 – WORLDS WORST SINGER??

Canberra Comes Out publishes some of its articles on a web site maintained by the company. Subscribers to the website are invited to pass comments upon the articles and as part of these comments usually make unfavorable comments about the subjects of those articles. Three weeks ago, Canberra Comes Out published an article about a Canberra musical theatre performer (Callum Dawes), written by their theatre critic Mandy Baker. In her article Mandy  stated that  Callum had ‘all the vocal range of a brain damaged kookaburra gargling cleaning bleach’ and that ‘his acting was as good as Dame Judy Dench’s, assuming Dame Judy had been dead for twelve months’.

In fact, the performance was not that bad and Mandy deliberately wrote the highly critical review, as Callum had recently broken up with Mandy’s younger sister. Over a hundred subscribers responded to the original article, with their own comments. Many of these comments tried to deliberately outdo the reviewer in criticizing the performance. Callum was accused of being a ‘singing pedophile’ by MusicCritic37 and ‘doing for music what Adolph Hitler did for world peace’ by Jess_Sayin.

Callum has asked for the article and the comments to be removed from the web site, and a public apology printed. The editor is willing to consider a public apology (provided it is printed in small text on the cartoon page of the Canberra Comes Out). However, the editor does not think the magazine has any legal responsibility for the comments of ‘internet trolls’.

Part 4 – ROTTEN TOMATOES GOES LIVE

Last weekend Mandy went to see Callum’s  newest musical offering ‘KIss Me Kate’ (a musical version of Shakespear’s ‘Taming of the Shrew’). In anticipation, the reviewer took six over-ripe tomatoes to the theatre, which she intended to throw at Callum during the performance. Mandy’s plan was to deliberately miss Callum and have the tomatoes harmlessly splatter against the theatre’s sets. As an honoured critic, Mandy was given a prominent seat in the front row.

When Callum came out at the end of the performance to take his bow,  Mandy stood up and revealed the tomatoes to the cast and audience. Turning to the audience, Mandy asked ‘thumb’s up or thumb’s down’? Her language and gestures implied that if the audience responded with thumb’s down, she would throw the tomatoes at Callum. In response Callum stared boldly at Mandy, seemingly daring Mandy to throw the tomatoes at him.

When no one in the audience responded, Mandy turned and threw the first tomato at Callum, aiming to miss. Unfortunately Mandy is a poor throw and the first tomato struck Callum firmly on the nose, splattering tomato all over Callum’s face and costume.

In response, Callum placed his hand on the sword that was part of his costume and said ‘If this was really renaissance Italy, I would run you through with this sword’. He then took two steps towards Mandy. Mandy, concerned that she would be attacked, fled from the theatre to the amused laughter of the audience and Callum.

Question Specific Instructions

You have been asked by the editor of Canberra Comes Out, to provide legal advice in the areas of defamation and trespass to the person.

Under the heading of ‘TV CHEF IN JUNK FOOD SHAME!’ prepare a brief advice to the editor on whether the proposed article could result in legal action for defamation and why. Support your answer with reference to caselaw and the Civil Law Wrongs Act. Part 1 is worth a maximum of six marks.

Under the heading of ‘EXPLOITED FOR THE SAKE OF FASHION!’ prepare a brief advice to the editor on whether the proposed article could result in legal action for defamation and whether such an action could be successful. Support your answer with reference to caselaw and the Civil Law Wrongs Act. Part 2 is worth a maximum of four marks

Under the heading of ‘WORLD’S WORST SINGER!’ prepare a brief advice to the editor on what ‘Canberra Comes Out’ should do about Callum’s request. Assume that the editor wants to remove any potential legal liability of Canberra Comes Out to Callum. You shoud address any statutory defences that Canberra Come Out may seek to rely on and how they may have been modified by case law. Support your answer with references to caselaw and the Civil Law Wrongs Act. Part 2 is worth a maximum of seven marks

Under the heading of ‘ROTTEN TOMATOES GOES LIVE!’ prepare a brief advice to the editor on what liability Mandy may have in common law Trespass against the Person and whether Canberra Comes Out will be vicariously liable. In addtion, advise the editor on the prospects of Mandy bringing a succesful action against Callum for common law assault. Support your answer with reference to caselaw and the Civil Law Wrongs Act. Part 2 is worth a maximum of eight marks

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