LEGAL PROFESSION ADMISSION BOARD
SEPTEMBER 2014
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.
Instructions:
This paper consists of three (3) questions.
Candidates are required to attempt all three (3)
questions.
Mark allocations for the three (3) questions are:
Question One:
Question Two:
Question Three:
30 marks
20 marks
10 marks
Answer each question in a separate booklet, and
indicate clearly on the front of the booklet the number of
the question you are answering and also your student
number.
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.
This examination is worth 80% of the total marks in this subject.
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.
©2014 Legal Profession Admission Board
Question 1
Tiger and Rory were members of the local golf club. On Sunday May 10 of this year,
they decided to play a game of golf together. Tiger is a school teacher, and Rory
works as a lecturer of accounting at the University of Woods, outside Sydney.
As Tiger and Rory started walking down the first hole, Rory started talking to Tiger
about a company he had come across during the week, called Augusta Pty Ltd.
Augusta Pty Ltd manufactured Christmas Tree decorations. Whilst it was only five
years old, Rory told Tiger that he had been blown away by the growth of the
company. He had come across the information about Augusta Pty Ltd from a
magazine called “Fast Money” that Rory subscribes to. The report on Augusta Pty
Ltd disclosed its financial growth with charts and graphs, but there was an asterisk
next to the numbers, which linked to a footnote that said “Fast Money magazine will
not be held responsible for the numbers provided herein.”
As the players approached the first green, Rory said, “Tiger, mate, Augusta Pty Ltd
is a cracker. I’ve lectured accounting for 15 years, and I know a good company when
I see one. If I had a spare $100,000 I would invest it all in this company.”
“Do you think I should? I have a spare $100,000,” Tiger replied as they approached
the first green.
“We’ll discuss it later on, but I reckon it’s a great investment opportunity,” Rory
added.
The conversation did not have a chance to conclude. The second hole was 390
metres in length from tee to green. It was relatively flat and straight. Its par rating
was four. The left-hand side of the fairway was planted with a substantial growth of
Melaleuca trees. These appear from the photographic evidence to have been
substantial in girth and height. Relevantly, the whole left-side length of the fairway
was delineated by these trees, forming what was variously described as a grove,
clump or stand.
Tiger hit the shortest drive. It was misdirected to the right and landed about 180
metres in front of the tee, in the rough to the right of the fairway. Rory hit his drive
furthest, about 250 metres, or a little more, onto the fairway, but to the left.
Tiger was the first to take his second shot and hit it well, but to the left, so that it
entered the stand of Melaleuca trees planted along the left-hand side of the fairway.
He thought it might be lost and set out to find it before Rory had hit his second shot.
Tiger passed Rory as Rory was setting up for this second shot. Rory had
commenced his “pre-shot routine” and was not paying attention to where Tiger was.
(Question 1 continues)
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(Question 1 continued)
In golf, it is quite common to walk in front of people before they hit. This maintains a
fast pace of play. The usual practice is for the walking player to get at least 50
metres in front of the hitting player before the hitting player hits, so that the walking
player has time to respond should a ball fly his or her way. Thousands of players
each week engage in this practice across New South Wales, and people are very
rarely hit by flying golf balls from their playing partners.
Tiger found his ball without difficulty. It was in a clearing just beyond the end of the
line of trees closest to the fairway. The position where he found his ball and from
which he intended to take his third shot was about 80 metres in advance of where
Rory’s ball had come to rest from the drive. He was angry with himself for hitting it
here, and in his anger, he did not look to see when and where Rory was hitting.
Rory mucked up his second shot. Rather than travelling in the direction of the green,
it travelled low and fast to the left of that line and struck one of the Melaleuca trees
bordering the fairway. It struck towards the top of the tree, about 10 metres above
the ground, and deflected, striking Tiger in the head.
Tiger was struck in the head, on the outer aspect of the orbit, just below the temple,
by the ball hit by Rory. Tiger sustained substantial injury to his right eye leaving him
with partial loss of vision.
When Tiger got out of hospital, he recalled his conversation with Rory about Augusta
Pty Ltd, and subsequently invested $100,000 in the company. Unfortunately, the
report in “Fast Money” was poorly researched, and the company was not in the
strong position Rory thought it to be. Three weeks after Tiger invested his money,
the company went into liquidation, leading Tiger to lose his $100,000.
Advise Tiger as to his possible action or actions in tort against Rory. Do not
discuss damages.
Question 2
Christine was a visiting tourist from Germany. Following the recent World Cup final,
she was returning from the Coogee Bay Hotel to the Sydney CBD on a bus at
9.30am with two of her German friends, Sophie and Adele. They had been drinking
throughout the match.
Buoyed by the historic win by the German national soccer team in the match,
Christine began to sing German folk songs very loudly. Sophie and Adele were
slightly embarrassed by their friend’s slurring attempt at the iconic songs, and were
telling her to stop singing. They were not singing themselves.
(Question 2 continues)
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(Question 2 continued)
The singing prompted an angry reaction on the bus to Christine singing in her native
tongue. Roy, who was sitting eight rows in front of Christine yelled at her, “speak
English or die!”
This incited Trent, who was sitting three rows in front of Christine, who yelled to her,
“I’ll boxcutter you right now, dog”. Christine could not see any box cutter, but the bus
had many passengers standing, and given he was seated in front of Christine, her
view was obscured.
Terry, who was a standing passenger next to the door, then joined in and said,
"everybody on the bus wants to kill you!" before he got off the bus at the next stop.
As the bus was pulling away, Terry picked up a rock and pegged it at the bus
window beside where Christine was sitting. The rock shattered the window, and the
broken glass was sprayed over Christine’s arm and head. It did not physically
damage her.
Advise Christine as to her possible action or actions in tort. Do not discuss
damages.
Question 3
Steve is the sole owner of a home in Wattle Grove, NSW. He lives with his wife
Mary. Kit and Carlos live in a house adjoining Steve. Kit and Carlos are very security
conscious and have installed floodlights in their backyard so as to feel protected at
home.
The floodlights are attached to Kit and Carlos’ roof. They are positioned in a way that
point directly into Steve’s backyard. The floodlight sensor is very sensitive, and is
often triggered by local possums at nighttime. When the floodlights are triggered to
turn on, they shine brightly for 15 minutes before they automatically switch off.
Steve uses his backyard to hang up his clothes, and enjoy movies on an outdoor
screen in his backyard. He has become distressed since the electronic gear has
gone in, and he no longer feels he can enjoy his backyard as he did before. He really
dislikes his movies being disturbed by Kit and Carlos’ floodlights every time a
possum crawls in a tree.
Additionally, Steve’s wife Mary likes to stargaze at nighttime when Steve is not
watching movies. To do so, she needs a dark environment. Needless to say, her
stargazing has too often been disturbed by Kit and Carlos’ floodlights, as they switch
on almost every night she stargazes, which ruins her night vision.
(a)
Advise Steve about her possible action or actions in tort.
(b)
Advise Mary about her possible action or actions in tort.
Do not discuss damages.
END OF PAPER
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