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Examinations
Semester 1 - 2003
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Emalus Campus
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COURSE NAME: TORTS
I
COURSE NO: LA 203
TIME ALLOWED: 3
hours
READING TIME: 10
minutes
NO. OF PAGES: Three
(3) including this one
NO. OF QUESTIONS ON PAPER:
Four
(4)
NO. OF QUESTIONS TO BE ANSWERED: Four (4) (choice
within Q3 and Q4)
MARK FOR EACH QUESTION: Q1
– 20%; Q2 – 10%; Q3 – 5%;
Q4 – 5%
TOTAL MARKS: 40%
of course grade
MATERIALS PERMITTED IN EXAMINATION ROOM:
Case-list (supplied), pens, watch
(CLOSED-BOOK
EXAM)
SPECIAL INSTRUCTIONS
·
Be
very aware of precisely what the question asks for.
·
Make
sure that every conclusion you come to, including those which are steps in your
reasoning within your answer, is
explicitly justified.
·
If
you cite a case, use it: explain how
it affects the answer you are giving.
·
Watch
the time, so that you do not end up devoting too little time to the last
question you do.
1. Answer both
questions. (value:
10 marks each)
Falo,
a 21-year-old unmarried woman, enrolled in a private computer-training course
in the capital of your jurisdiction. The course runs from November through
February. Just before the Christmas break the instructors held a party for the
students, at the school: a small affair, from 5 to 7, with music and snacks,
and beer, juice, and liquor, free of charge.
Falo
had tasted whiskey before – but she’d never had so much available. Not liking
beer much she had quite a few whiskey cocktails, entering into the spirit of
the thing. Everyone was drinking. When she stumbled while walking, the head
instructor asked her whether maybe she’d had too much to drink; embarrassed,
she said, “No, I’m fine.”
As
the party broke up, the head instructor asked Falo, “Do you need a drive? I’m
going your way, or we could get you a taxi.” Falo said, “No, I’m fine.”
In
fact Falo was run over by a truck on the road, not far from the school. She had
passed out from the drink, and was just lying in the middle of the road. Due to
her injuries she has a permanent limp now.
It
has been determined that the driver (who did brake) was not at fault. Falo does
not remember events at the party after the first time the head instructor spoke
to her. The head instructor says she seemed “happy” from the drinks, “but no
more than we all were.”
A. Should
the head instructor or his school be held to have owed Falo a duty in
negligence, to avoid physical injury caused in this way?
B.
IF there WAS
such a duty, would you hold that the duty was breached,
and that the defendant should pay her
full compensation for the injury?
2. Joseph had an opportunity for investment. It required all of
the money he had, however, so he checked with the bank whether, if necessary,
he could get a loan. The bank assured him he could, if he put up his block of
land as security. Joseph’s lease on this block was all paid-for and clear, but
he checked anyway with the Director of Leases at the Lands Departments, who
told him there was no problem in using a lease as security. So Joseph proceeded
with the investment.
The
investment turned out badly, and Joseph need that loan. But when Joseph
approached the Lands Department, the officials told him that of the three forms
registered with them and required for the use of his title to the lease as
security, two were missing.
“They would have been
filed by Matthew,” they explained, “and Matthew has not been in for a week. He
may have quit – we don’t know where he is. We can’t find a lot of his files.”
No-one at Lands could
help Joseph, and without the forms the bank refused him the loan. Soon Joseph
was forced into bankruptcy by his creditors.
Does
Joseph have a cause of action against the Lands Department, for the losses
caused to him by the unavailability of those forms?
(value 10 marks)
3. Suppose the following changes in the facts of the cases
mentioned. Based on the reasons in the cases’ decisions, would the decision
have been different?
Answer any two (2) of A, B, C, and D. (value:
5 marks)
A. In Home Office v Dorset Yacht Company, one
of the three guards was awake, but
the boys overpowered him to escape.
B. In
C. In McLoughlin v O’Brian, the plaintiff
first saw her family after their accident on the morning after the accident.
D. In Hedley-Byrne v Heller,
the defendant had told the plaintiff, “You may disregard the disclaimer in this
letter”.
4. Answer either A. or B. (value
5 marks)
In
Donoghue v Stevenson, Lord Atkin
wrote:
“The liability for
negligence…is no doubt based on a general public sentiment of moral wrongdoing
for which the offender must pay. But acts or omissions which any moral code
would censure cannot in a practical world be treated so as to a give a right to
every person injured by them to demand relief.
“In this way rules of
law arise which limit the range of complainants and the extent of their
remedy.”
What
change in the negligence rules of law would you advocate for your jurisdiction,
to make them –
A.
more “practical”?
OR
B.
more in accord with “public sentiment”?