Online Examination Paper

SEMESTER: SECOND SEMESTER SUPPLEMENTARY/DEFERRED EXAMINATIONS 2023

UNIT: LLB102 TORTS – ONLINE EXAM

DURATION OF EXAMINATION: 3 HOURS 10 MINUTES

INSTRUCTIONS TO STUDENTS:

THERE ARE THREE (3) QUESTIONS. ALL THREE (3) QUESTIONS ARE TO BE ATTEMPTED.

WORD LIMIT:
QUESTION 1: 900 WORDS MAXIMUM
QUESTION 2: 900 WORDS MAXIMUM
QUESTION 3: 900 WORDS MAXIMUM

TOTAL: 2700 WORDS MAXIMUM

MARKS FOR EACH QUESTION ARE AS INDICATED.

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QUESTION 1

YOU MUST ANSWER ALL OF PARTS (a) AND (b)

(Total Question 1 word limit: 900 words maximum)

(a) Laura Casey, a photographer, has been employed by Jane Dover since May 2023. Jane is the
sole owner and operator of a portrait photography studio in Brisbane. Jane’s studio uses a
pantograph system which allows the studio lighting and other photography equipment to be
suspended from the ceiling. The pantograph system includes a track which enables the
photographer to easily move the lights and other photography equipment along the ceiling to
the desired location for photographs. The pantograph system in Jane’s studio is secured to the
ceiling by four bolts and has a maximum equipment weight capacity (known to Jane) of 70kg.

On 26 June 2023, Laura was taking photographs of one of Jane’s clients in Jane’s Brisbane
studio when, as she moved a suspended studio light along the pantograph system’s track above
her, the light fell on Laura’s head. The light, which weighed 20kg, caused Laura to suffer a
serious head injury. It has since been determined that the studio light fell from the ceiling
because two of the four bolts securing the pantograph system had dislodged due to the total
weight of the equipment suspended from it weighing just over 100kg.

Earlier that day, Jane had suspended some additional equipment from the pantograph system
in preparation for a large photo shoot. Jane knew that the maximum weight capacity for the
system was then exceeded, and she had noticed the system buckling under the added weight
but, as she was in a hurry to meet a new client, she did not remove the equipment not needed
that day to reduce the suspended weight below the system’s maximum 70kg capacity.

It is well known (including by Jane) that in 2022, the Studio Photographers Association of
Queensland (SPAQ) published a report which indicated that in 2021 90 percent of injuries
occurring to employees at photography studios in Queensland were caused by suspended
equipment falling due to pantograph systems exceeding their specified maximum weight
capacity. The report listed a range of injuries occurring as a result including mild abrasions
and bruising through to more serious injuries such as permanent brain damage or spinal injury.
Consequently, the SPAQ’s 2022 report required all studio owners to not exceed the maximum
weight capacity for any installed pantograph equipment system. Indeed since then, it was in
fact usual for studio owners to ensure that the total weight of equipment suspended from a
pantograph system was at least 10kg less than the system’s maximum weight capacity.

Question 1(a) continued overleaf…

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Question 1(a) continued

Evidence confirms that if the equipment suspended from the pantograph system in Jane’s
studio had not exceeded 70kg, the light would not have fallen. Jane has now installed a larger
pantograph system with a maximum equipment weight capacity of 150kg. She also ensures
that the total weight of the equipment suspended from it is less than 140kg. The parties have
agreed: that Laura is in no way responsible for her injury; and that neither the manufacturer
nor the installer of the pantograph system is responsible for Laura’s injury.

Assume that the Civil Liability Act 2003 (Qld) applies to this situation (and its application is
not excluded by section 5 of the Act). Assume also that Laura has the right to claim common
law damages in respect of her injury despite any entitlement to workers’ compensation.

Based on the above facts only, advise Laura Casey on the likely success of bringing an action
in negligence against Jane Dover for exceeding the maximum equipment weight capacity of
the pantograph system. You must fully advise on each element of the negligence action, onus
of proof and time limits. DO NOT advise on:

• The failure of Jane (if any) to warn of any risk; or

• Defences (including sections 13-16 of the Civil Liability Act 2003 (Qld)); or
• Remedies and how any claim for personal injury damages would be assessed
(including any advice on any maximum award for lost earnings).
(16 marks)

(b) Ella Small, aged 19, suffered a serious injury in a car accident caused by the negligent driving
of Chad Crane. The parties agree that at the time of the accident Chad had a blood alcohol
content of 229mg of alcohol in 100mL of blood and that Chad was ‘intoxicated’ as defined by
schedule 2 of the Civil Liability Act 2003 (Qld).

It has been determined that the accident occurred solely as a result of Chad’s intoxication.
When Ella accepted a lift from Chad (whom she knew), Ella knew that Chad was intoxicated,
but she could not drive and was concerned for her safety as she was heavily pregnant, without
access to a phone, and alone on a deserted road in an uninhabited, unfamiliar, and isolated
rural location in the dark early hours of the morning. She did not know where she was and
had been abandoned on the side of the road after being forced out of another car and physically
threatened by the person with whom she was previously travelling.

Question 1(b) continued overleaf…

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Question 1(b) continued

Assume that Ella can prove a negligence claim against Chad. Fully advise Ella whether any
of the presumption(s) under the Civil Liability Act 2003 (Qld) may apply as a defence. In
doing so, you must fully consider the effect of any presumption on Ella’s negligence claim,
whether or not you think a defence is likely on the facts. Do not advise on onus of proof or
time limits.
(4 marks)
[Total 20 Marks]

LLB102TOA2.232 cont/…
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QUESTION 2

YOU MUST ANSWER ALL OF PARTS (a) AND (b)

(Total Question 2 word limit: 900 words maximum)

Margot Smith is married to Ryan Smith. Ryan is trained and works as an ambulance paramedic.
One year ago, Margot visited the Queensland Zoo in Brisbane, Queensland which is a zoo owned
and operated by Queensland Zoo Pty Ltd (QZ). Margot started her visit (with more than 1,000
other zoo visitors) by watching the zookeepers feed the crocodiles. After this, Margot walked
towards the wombat exhibit. On the way to the exhibit, Margot was suddenly taken to the ground
and mauled by a tiger cub that had escaped from its enclosure. The attack lasted a matter of
moments before the tiger cub ran away. Zoo staff and the Queensland Ambulance Service were
immediately alerted by several witnesses to the incident. Although the zoo staff were able to
capture the tiger cub quickly, prior to the arrival of the ambulance, before they were able to do so
the tiger cub also attacked another zoo visitor, Ken Baker. Ken suffered a deep laceration and
permanent damage to his leg from the tiger cub’s claws scratching him and was immediately
driven to a medical centre by his wife (who was at the zoo with him).

Margot sustained more serious injuries from the tiger cub, which required ambulance assistance.
When the ambulance arrived, Ryan was one of the two attending paramedics. Although Ryan was
informed of the cub’s capture, he did not expect to find Margot injured as he did not even know
that she was visiting the zoo that day. Given the circumstances, and the fact that there was no one
else to render assistance, his colleague administered emergency first aid to Margot while Ryan
assisted and drove the ambulance conveying Margot to the nearest emergency hospital. Upon
arrival at the hospital, Ryan stayed with Margot. Later that day, Margot, with Ryan by her hospital
bedside, died as a result of the injuries caused by the tiger cub. Ryan has recently been diagnosed
with post-traumatic stress disorder (PTSD) due to the incident involving Margot, and since the
day of the incident has had nightmares about it.

The fictitious Zoo Safety Act 1981 (Qld) (the Act) is designed to protect the health and safety of
entrants at Queensland zoos and the Act imposes related duties on zoo operators. The Act provides
the following (in sections 1, 4 and 115 to 116):

1 The object of this Act is to protect the health and safety of a zoo entrant.
4 A zoo operator who commits an offence under this Act will be liable to a penalty of
$1,500.

Question 2 continued overleaf …

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Question 2 continued

115 A zoo operator commits an offence against this Act if it fails to provide, for every
enclosure separating a dangerous animal from zoo entrants, two separate lockable gates
at each enclosure entrance which gates are controlled by an electronic mechanism (with
a backup power source) that allows only one of the gates to be open at any one time.
116 For the purpose of this Act:
dangerous animal includes lions, cheetahs and tigers and their cubs.
zoo entrant means a person who enters upon the land, a building or other area in which
a zoo is operated in Queensland.
zoo operator means a person or company who owns and/or operates a zoo in Queensland.

In 2020, a policy document issued by the Queensland Association of Zoos, recognised that it can
be particularly traumatic for a zoo entrant (as defined by the Act) to witness a dangerous animal
(as defined by the Act) outside of their enclosure and/or an incident and/or the consequences of
an incident involving a dangerous animal outside of their enclosure.

At the time of the incident involving both Margot and Ken, the entrance to the tiger and tiger cub
enclosure at Queensland Zoo had only one gate. Video evidence shows that on that day, that one
gate had been opened and accidentally left ajar by a zookeeper after feeding the tiger cubs. It also
shows that the one cub that escaped the enclosure had exited through that gate.

(a) Ryan Smith wishes to sue Queensland Zoo Pty Ltd (QZ) in negligence. The parties agree
that the issue is only whether a novel duty of care is owed to Ryan.

With reference to all relevant considerations (other than coherency and indeterminate
liability), fully advise whether Queensland Zoo Pty Ltd would owe Ryan a duty of care
in negligence. Do not advise on onus of proof or time limits.
(11 marks)

(b) Ken Baker wishes to bring a breach of statutory duty action against Queensland Zoo Pty
Ltd (QZ). Fully advise Ken on this action, but do not advise on defences, remedies
(including on how any claim for personal injury damages would be assessed), onus of
proof or time limits.
(9 marks)
[Total 20 marks]

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QUESTION 3

YOU MUST ANSWER ALL OF PARTS (a) AND (b) AND (c)
(Total Question 3 word limit: 900 words maximum)

(a) Melissa Lay, now aged 54, suffered a serious injury one year ago (at the age of 53) as a result
of an accident while parasailing on Hamilton Island, Queensland. Sail & Fly Pty Ltd, the
parasailing tour company, has admitted liability in negligence for Melissa’s injury, but Sail &
Fly Pty Ltd are disputing the amount of compensation claimed by Melissa. It is established
that:

• Following the incident, Melissa spent three months in hospital receiving surgical treatment
and rehabilitation for her injury at a cost of $423,000.
• After being discharged from hospital, Melissa’s house needed modifications to
accommodate her post-injury requirements. These house modifications cost $21,000 and
were paid for by a local charity. Also, since her discharge from hospital, Melissa has
required medication and physiotherapy every week and will continue to need this in the
future as medical opinion is unanimous that Melissa will not recover from her injury.
• There is a 60 percent chance that Melissa will need an additional operation on her right
leg in three years’ time.
• Prior to the parasailing incident, Melissa worked full-time as a leading firefighter earning
$110,000 each year (before tax) and planned to retire at the age of 65 (as is usual for
firefighters). Due to her injury, Melissa cannot return to any form of employment.
• After being discharged from the hospital, and due to her injury, Melissa’s brother Paul
provided care for Melissa. Paul cared for Melissa for 12 hours per week for the first three
months after her release from hospital. Following a break of one month, Paul then resumed
the required care of Melissa for eight hours per week for the next three months, and then
for three hours per week for one month.

With reference to relevant cases and legislation, provide a full and detailed advice on how
Melissa Lay’s damages for personal injury (other than non-pecuniary general damages (as
defined in section 51 of the Civil Liability Act 20023 (Qld))) would be assessed by a court.
Your advice is to be based on the above information only.
(12.5 marks)
Question 3 continued overleaf…

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Question 3 continued

(b) One evening, while making a delivery of small grocery items for Door Direct Pty Ltd (Door
Direct) in Brisbane, Xavier Hallett’s motorcycle collided with a bicycle ridden by Penny
Hudson. Penny was seriously injured. The parties agree that Xavier was negligent while riding
his motorcycle, and that his negligence caused Penny’s injury.

Xavier is rostered on a seven-hour evening shift every weekday and is paid on an hourly basis
with tax deducted by Door Direct. Every evening while working, Xavier is required to follow
the schedule of deliveries and delivery route provided by Door Direct. Although Xavier
provides his own motorcycle to make the deliveries, Door Direct pays for the motorcycle’s
maintenance. Door Direct also provides Xavier with a removable compartment, which clips
onto the back of his motorcycle, within which he is required to store the grocery items when
making deliveries. This compartment is decorated with the Door Direct logo (which logo is
during the evening lit by small LED lights). The compartment remains the property of Door
Direct.

On the basis that Xavier Hallett does not have a written contract with Door Direct Pty Ltd,
advise Penny Hudson whether Door Direct is vicariously liable for the negligence of Xavier
Hallett. Do not advise on remedies, onus of proof or time limits.
(5.5 marks)

(c) With reference to the facts of Kondis v State Transport Authority (1984) 154 CLR 672, briefly
explain why a duty of care was owed by the defendant to the plaintiff for the negligent act of
the crane operator.

(2 marks)
[Total 20 marks]
END OF PAPER

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