The University of the South Pacific	Examinations Semester 1 - 2001
Emalus Campus

SCHOOL OF LAW

COURSE NAME: TORTS I

COURSE NO: LA 203

TIME ALLOWED: 3 hours

READING TIME: 15 minutes

NO. OF PAGES: Four (4)

NO. OF QUESTIONS ON PAPER: Four (4)

NO. OF QUESTIONS TO BE ANSWERED: Four (4) – NB choice within Q2 and Q4.

MARK FOR EACH QUESTION: Q1 – 15%; Qs 2, 3, 4 – 10% each.

TOTAL MARKS: 45% 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 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. (value 15%)

One evening this year, in your jurisdiction, the police set up a road-block to check passing drivers for proper registration and insurance papers and for signs of being under the influence of alcohol. This is done under a road-safety programme announced on radio during the day. There was an armed robbery at the airport in the afternoon, however, and at least one robber was still at large, so the police are also on the look-out for him. Since they know very little about his appearance, their instructions are simply to stop every vehicle and be alert.

The road-block, consisting of plastic traffic cones and the flashing lights of a parked police car, is located on the road that circles the island, at a place just outside the capital town. It is a bushy stretch of road and there is no other illumination.

At 10pm a vehicle approaches at high speed, heading toward town. Its horn sounds as it nears the road-block. A police officer, in uniform but without his hat, waves from the middle of the road, rifle in hand, then jumps aside as the vehicle, a utility truck, drives straight over the cones. The other police officer on duty fires his shotgun at the truck as it passes. Of the two shots one strikes a rear tyre, from behind, and the truck swerves out of control into the earth embankment by the road.

It turns out that the driver, Sari, who did not know of the road-block programme, was rushing her 5-year-old daughter to hospital. The girl was choking on a peanut.

The crash makes Sari’s truck unusable; the police offer to take her to the hospital themselves, but it takes 20 minutes for another police vehicle to arrive (their orders require them to have a vehicle at the road-block). The little girl’s arrival at hospital is thus delayed about half an hour. As a result of this delay the girl suffers brain damage from lack of oxygen.

Should the police force be held liable in negligence to the girl for her brain damage?

2. Answer question A or (next page) question B. (value 10%)

A. Joe asked a question of his lecturer at the School of Law on the course electronic ‘discussion page’. In his posting he identified himself by his student number, SS001313. Joe was in fourth year. Although his marks had never been very high, he did have a job arranged with Pie Delta, a lawyer in the capital of his home jurisdiction.

In his posted question Joe mentioned that he found the course very hard, even harder than the courses he’d already done. He wrote, “Frankly, sir, I was just lucky to get this far. I hardly remember a thing from most of them, and I doubt I’ll remember anything from this course!”

Mr Delta read the discussion page postings, including this one. The page’s password was supposed to be released only to USP students and staff, but Delta had persuaded the local USP tutor to give it to him (by saying he was just interested in the course subject-matter). Since Delta knew Joe’s number from Joe’s transcript, part of Joe’s job application, he realised this posting was Joe's. He had not actually been very sure about hiring Joe, and when he saw this comment he decided against it. Joe lost his promised job.

If the above was all proved, and assuming that USP is vicariously liable for any faults of its employees, should USP be liable to Joe for the costs of losing that job?

OR

B. One day in June, reading the Vila Veracity (a bi-weekly newspaper published in Port Vila since about 1994), Ella read a column called ‘Guarding Your Finances’. It included a table with predictions about changes in value of various currencies, including a note that the Australian dollar “was expected to slide further, and very soon; but we’re lucky here, the vatu will not be affected”.

Ella’s scholarship for attending law school was denominated in Australian dollars, kept in a ‘dollar account’ at the local bank. Because of what the article said she converted the dollars she would not need until later in the year into vatu.

In fact over the next two months the Australian dollar recovered its value and rose considerably in value against the vatu – her $3000, worth Vt 24000 in June, was now Vt 16000. If she had left it in dollars it would now be worth Vt 32000.

If Ella discovered (and could prove) that the column published in the newspaper was three months old, carelessly published as current, could she succeed in suing Vila Veracity for her loss?

3. (value 10%)

John Hopoate, known as Hoppa, played rugby league for the professional team West Sydney Tigers of the NRL. During a match he poked several opposing players in the rear end – his finger, through the shorts fabric, actually inserted into them.

Given the following context (quoted from newspaper coverage), do you think one of those players could succeed in a suit in battery against Hopoate, if the incident occurred in a NRL exhibition match in your jurisdiction?

Wests Tigers coach Terry Lamb admitted he and his players laughed at video tape of John Hopoate jamming his fingers up the backside of Dragons player Craig Smith a month ago.

"Everyone had a big laugh," one player said. "We watched the incident involving Smith and we all had a bit of a laugh," Lamb said. "We thought it was OK because Hoppa is good mates [friends] with Craig. We thought it was just a gee-up [rough teasing]."

This week, angry North Queensland players revealed Hopoate's tactics, and he has been banned for 12 games.

Hopoate also did this behaviour at training sessions, but all the while it was tolerated, and now it has resulted in the National Rugby League, Hopoate, and the Tigers becoming laughing-stocks.

Hopoate has been stunned by the consequences of his actions, asking his closest mates: "Why is this happening? I thought it was just a joke."

"We're 100 per cent behind Hoppa," one Tigers player said. "He has been victimised and has all our support."

Hopoate has written to the three Cowboys players, the NRL, and the Tigers apologising for his actions.

Lamb has come under fire from within Tigers ranks for encouraging an alcohol culture in the club, which was a complete contrast to the one pushed by their former coach. Players are encouraged to take part in drinking games in Lamb's hotel room after away-games.

4. Answer question A or question B. (value 10%)

A. One of the most common arguments used by defendants in English cases is that if the decision favours the plaintiff, it could 'open the floodgates' – that is, as a precedent it would invite a flood of lawsuits by other plaintiffs, which could overwhelm the courts and unfairly burden defendants.

Should this argument be valid in USP jurisdictions?

OR

B. Consider the English law of liability in negligence for 'nervous shock' to 'secondary victims' – that is, psychiatric illness caused by witnessing negligently-caused accidents or their immediate effects (the line of cases featuring the House of Lords' McLoughlin v O'Brian [1982]2 All ER 298).

Should this form of liability be adopted by the law of your jurisdiction?