MONASH UNIVERSITY

FACULTY OF LAW

TORTS B
LAW2202

TUTORIAL INFORMATION AND

MATERIALS

2015

Tutors Contact Details

Natalia Antolak-Saber: natalia.antolak-saper@monash.edu
Gina Faba: gina.faba@monash.edu
Michelle Gage: michelle.gage@monash.edu
Daniel Nguyen: daniel.nguyen2.@monash.edu
Sangeetha Pillai: sangeetha.pillai@monash.edu
Uthra Ramacahandran: uthra.ramachanadran@monash.edu
Roman Rozenburg: roman.rozenberg@monash.edu
Amber Tan: amber.tan@monash.edu

Tutorial Topic Timetable:

Week No:

Tutorial Topic

No Tutorials

No Tutorials

No Tutorials

No Tutorials

No Tutorials

Duty & Breach

Particular duty situation Mental harm

Causation & Remoteness

Defences
Mid Semester Break no tutorials

10

Putting it all together Answering a question

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involving all elements of the Tort

11

Particular duty situations Pure economic

loss caused by negligent statements /
Omissions

12

Makeup class (only where tutor was away

during weeks 6 -11 or other unforeseen
university-wide incident causes cancellation
of tutorials)

TORTS B: Information on Tutorial Program

Enrolment & attending tutorials
Tutorials are conducted weekly commencing in Week 6 and finishing in Week 11 (if
necessary, a makeup tutorial will be held in week 12).
Students should enrol in a tutorial through Allocate+.
enrolments must be completed by week 3.

To obtain a tutorial place,

Students must attend their allocated tutorial.

Students who are allocated a tutorial group which they cannot attend (and have a good
reason for not attending) should consult with Student Services as to the possibility of
changing their tutorial group. Changes are only possible up until week 4.
The purpose of tutorials
Tutorials are an extremely valuable way of reviewing your understanding of the
material, practising your application skills and developing examination technique.
They are very different to lectures and are conducted as problem-based interactive
seminars. Their value depends largely on student participation and you should come
prepared to actively participate. There may not be time to cover all questions. Any
problems contained in this booklet which are not discussed during tutorials may be
used as practice problems, or as material for discussion in private study groups.
Torts tutorials aim to develop:
1. students understanding of the materials taught in lectures;
2. problem solving techniques through the application of rules and principles to
factual problems; and
3. proficiency in oral expression.
Tutorial Participation
To benefit fully from the tutorial programme students need to prepare for and then
participate in their tutorial. This involves:

Reading the cases and other materials listed under the relevant topic heading in
the Reading Guide;

Preparing answers to the questions contained in this tutorial book;

On the basis of that preparation, contributing to tutorial discussion; and

Being respectful of and receptive to the views expressed by other students and the
tutor.

Note: Tutorials perform a different function to lectures and should not be regarded as a
form of mini-lecture.
Consultations with Tutors
Students may make an appointment to see the tutor to discuss particular legal issues
arising from the tutorial discussion. Your tutor will advise of the best method by which
to contact him or her. Please note Tutors will not discuss the tutorial problem with
students prior to the tutorial.
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Cancelled tutorials
At times a tutor may need to cancel a class due to circumstances beyond his or her
control. Students will be notified of cancelled tutorials though an email to their Monash
student email address and through a notice on the Torts B Unit Page.
Every effort will be made to give students early warning of cancellations. However, in
some cases this will not be possible.
Where a tutorial is cancelled by a tutor a make up tutorial will be held in week 12.
Nature of Tutorial Problems
The tutorial problems will be based on the material dealt with in the lectures.
Students should base their answers to the tutorial problems on a combination of the
lecture material, relevant readings and their analysis of the facts of the problem.
A suggested technique for answering problem questions is the following:
Issue
Begin your answer by thinking about what your client wants. For example, A
(your client) wants to show they have an action in negligence against B for the
personal injuries they have suffered.
Most problem questions will raise multiple legal issues. Each tutorial will look at
a different issue. In an examination you should consider (often briefly) the
relevance of all topics examinable.
Make it clear which issues you are discussing; using headings is a good way to do
this.
Relevant law
State the relevant legal principle(s) which relate to each issue identified. In other
words, what is the law?
Legal principles should be supported by case authorities and/or appropriate
statutory provisions (in an examination, there is no need to give a citation for the
case cited).
Principles should be stated clearly and concisely. Do not write out your lecture
notes or passages from text books.
Where the law is unclear, it may be necessary to develop the legal principle
beyond one or two sentences.
State only the principle that is relevant to the issue you are addressing.
Apply the law
Apply the relevant legal principles identified above to the facts of the problem.
If the point is significant, you should compare the application of the principle in
question in a decided case with the application of the principle to the facts under
consideration.
This is the most important part of your answer. Remember that legal argument
turns on the application of the law to the facts of a case.
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Remember also that it is only by detailed comparison of the relevant facts and the
decision in a decided case that a principle may soundly be applied or
distinguished.
Even though you may have been asked to advise only one party (the plaintiff or
the defendant), your client must be made aware of the arguments contrary to her
or his cause.
Conclude
Decide what your conclusion is, based on application of the relevant law to the
facts and issues.

TUTORIAL 1 DUTY & BREACH

Question one
The police carelessly fail to look at the evidence in a case in which they are investigating
a murder. As a result they fail to catch the murderer who manages to kill another victim.
The victims family want to sue the police to determine what went wrong with the
investigation. Do the police owe the victim a duty of care?
Question two (from 2004 final exam)
Eric was walking to work on 17 June 2004. As he crossed a road, Eric was struck by a
large branch that fell from a tree in Ormondes front yard. Ormonde was removing the
tree to improve his view of the park across the road. He had no particular skill at tree
lopping and had not thought about where the branch might land after he sawed through
it.
Eric was taken to the local hospital. The attending doctor, Davida, diagnosed a bad
break in Erics upper thigh bone. Davida explained to Eric that he would need surgery in
the next 48 hours to repair the bone if he was to avoid a permanent limp. She warned
Eric that a general anaesthetic would be used and that such anaesthetics always had a risk
of serious side effects, including brain damage or death in about 3% of cases. Eric told
her he was particularly worried about general anaesthetics because two of his brothers
had died in surgery after a general anaesthetic. Davida responded that is terribly sad.
Nevertheless, she encouraged Eric to go ahead with the surgery. Eric eventually agreed
and his surgery went ahead later that day.
Unfortunately for Eric, during surgery his temperature rose and he stopped breathing.
He was eventually resuscitated but not before he had suffered serious brain damage.
Investigations after the incident showed that there was no negligence during the surgery
or the application of the anaesthetic. Eric was found to suffer from a rare hereditary
disease (malignant hyperthermia or MH) which increased his risk of death or injury
under anaesthesia to 7%. The disease is known to Australian doctors and there is a test
available to determine whether a person has the disease. However, doctors do not
usually warn patients of the risk of the disease and the increased risk of injury under
anaesthetic if they have it. If a patient is known to have the disease, a particular type of
anaesthetic can be used to lower (but not entirely remove) the increased risk of side
effects from the anaesthetic.
Advise Eric as to his legal rights in negligence against Davida. For the purposes of
this tutorial prepare your answer in relation to whether Davida owes Eric a duty of
care and whether she has breached that duty.

TUTORIAL 2 MENTAL HARM

Question one (from 2002 final exam)
Chang Moy Moy was attending a funeral at the Quiet Rest Cemetery in Melbourne in
October 2002. Wanting some time alone, she wandered off into the grounds. After
walking a short distance, she tripped on some uneven ground falling into a recently dug
grave beside the path. The grave had not been dug in accordance with the relevant
workplace safety regulations, introduced to protect those responsible for digging graves.
It did not have wooden reinforcing around the edges. As Moy Moy tried to pull herself
out, the edges, weakened by recent heavy rain, collapsed, burying all of Moy Moy but
her face. Others in the area heard the commotion and quickly came to her aid. Calls
were made to the fire brigade, ambulance and TV stations. Representatives from FYI, a
television station, arrived first and began broadcasting the incident live on television.
Moy Moys husband, David, was watching television at home when Moy Moys face
came onto the screen. The television reporter said that a woman had been killed in a
cemetery that morning and work was still going on to retrieve the body. David collapsed
with fear. He was taken to hospital by a friend, where he was hospitalized for three
weeks. David was diagnosed as having suffered a nervous breakdown and subsequently
suffers a psychotic depressive illness.
Moy Moy, who suffered severe anxiety attacks most of her life, now suffers from post
traumatic stress disorder. She suffered no other injuries in the incident.
You are asked to advise:
(i)

Moy Moy as to whether she was owed a duty of care by the trustees of
Quiet Rest Cemetery. (You may assume that the trustees are
responsible for all actions at the cemetery), and

(ii)

David as to whether he was owed a duty of care by the trustees of Quiet

Rest Cemetery and by FYI. (You may assume that FYI is responsible
for the actions of its television reporter.)

Question two
Troy Taylor accepted a casual job as a city window cleaner with Thrifty Cleaning
Industries (Thrifty) in order to fund his law studies. While engaged in cleaning windows
of city buildings, he is required to stand on a platform and is enclosed by a harness
attached to a pulley system. Many of Thriftys competitors now utilise large metal boxes,
regarding the harness system as antiquated and unsafe.
In June 2004, while Troy was cleaning the 20th floor of the Rialto Towers in Collins
Street, Melbourne, the rope on his safety harness started to fray. Troy began to slip off
the platform while his harness rope grew increasingly thin. His predicament came to the
attention of some passers by who notified the police and within fifteen minutes, the
police and fire brigade had arrived. While the police and fire brigade tried to find a
means of lowering Troy before his harness rope snapped, a crowd gathered in Collins
Street.
While the police were trying to rescue Troy, the pulley operator made a call on his
mobile telephone to Troys mother, Helen. In his confusion as to what was happening,
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the pulley operator sobbed into the phone and told Helen that Troy had fallen off the
Rialto Towers and died.
In actual fact, Troy had survived physically unscathed after fire brigade officers cut a
panel of glass out of the Rialto Towers and hauled him into the building. But the incident
was not without repercussions for Troy. He became obsessed with the fact that he might
have died. The incident excited considerable media attention which resulted in Troy
becoming withdrawn and depressed. He was diagnosed with post-traumatic stress
disorder.
Troy is currently living with his mother Helen who is very troubled by Troys condition.
She has been diagnosed with depression and has been prescribed anti-depressants. Helen
is also still recovering from the shock of the phone call from the pulley operator which
led her to believe that Troy had died.
Sheree is one of the bystanders who witnessed Troys ordeal. Sheree has always been
prone to panic attacks, but since witnessing Troys ordeal now experiences flashbacks
and psychotic delusions. She is diagnosed with a rare psychotic disorder.
Advise each of Troy, Helen and Sheree whether Thrifty owes them a duty of care.
You are not required to discuss the remainder of the tort of negligence. You are also
not required to consider the implications, if any, of the Accident Compensation Act
1985 (Vic) (that is, the workers compensation regime).

TUTORIAL 3 CAUSATION & REMOTENESS

Question one
At a hunting accident, Dick accidently shoots his friend Tony in the leg. In the shock,
Tony also has a heart attack. He had previously been warned that if he did not give up
smoking that his heart would be weakened. Mo, a paramedic on her first day at work,
arrives to help. She institutes cardiac massage on Tony but in the panic forgot adequate
ventilation. Medical evidence is that the cardiac massage saved Tonys life and the
inadequate ventilation caused him brain damage.
Advise Tony as to his legal rights in negligence. For the purposes of this tutorial
prepare your answer only in relation to whether the elements of causation and
remoteness could be made out.
Question two
Go back to Question two in Tutorial 1 and prepare an answer dealing with the causation
and remoteness issues raised in the question.

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TUTORIAL 4 DEFENCES
For the last three years, Arthur has been the head grounds keeper at the Hardy Oval, a
football oval in Melbournes Eastern Suburbs. Arthur has a degree in grounds keeping
from the prestigious Smith Institute, a tertiary institution concerned with grounds
keeping in the United States, and is on the executive council of the Australian Society of
Grounds Keepers. The method Arthur uses to maintain the Hardy Oval results in the
surface of the oval being particularly hard. As a consequence, the oval requires less
upkeep on a week to week basis than softer ovals, and is therefore cheaper to maintain
than those ovals.
The method employed by Arthur to maintain the oval does not have much support
amongst other grounds keepers in Australia, but is widely accepted amongst grounds
keepers in the United States as the preferred method of preparing sports grounds. It is
well known that over the last three years a substantial number of players have suffered
injuries while playing at the Hardy Oval, with such injuries being attributed to the
hardness of the ground.
Bill is an amateur footballer who plays for the Clayton Sharks. Bill has recently signed a
lucrative contract with a U.S. gridiron team, the Illinois Giants, to be the teams punter.
He intends to assume that position at the end of the current Victorian amateur season.
The Clayton Sharks last game of the season is played at Hardy Oval. During the game,
Bill takes a spectacular mark over the heads of the oppositions players. He is able to
jump so high because of his regular use of steroids, in contravention of s 75 of the
Drugs, Poisons and Controlled Substances Act 1981 (Vic). The hardness of the ground
results in the degree of force absorbed by Bills knees when he lands being substantial,
and his left kneecap shatters. Bill collapses, and is taken from the ground on a stretcher.
Two days later Bill attends at the local hospital for surgery, which will require him to
undergo a general anaesthetic. The anaesthetist, Carol, is a devoted follower of a football
team, the Parkville Panthers. The Panthers are the Clayton Sharks main rival and have,
on several occasions, been defeated almost single-handedly by Bill. Momentarily
distracted by seeing her teams nemesis on the operating table, Carol slightly misjudges
the amount of anaesthetic that she gives to Bill. Normally, the extra amount of
anaesthetic would simply cause a patient some mild nausea when he awoke after his
operation. However, Bill is allergic to the anaesthetic being used. As a consequence of
the extra dosage, Bill has a very bad allergic reaction which causes substantial damage to
his heart.
Advise Bill as to his legal rights in negligence against Arthur. For the purposes of
this tutorial prepare your answer only in relation to whether Arthur has any
defences.

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TUTORIAL 5 PUTTING ALL THE ELEMENTS TOGETHER

Question one (from 2003 final exam)
Bella is a prima ballerina due to appear onstage at the City Theatre in a contemporary
production of Swan Lake. Shortly before the opening night performance, Alex, who
usually works as a theatre usher, agreed to help with some last minute preparations
before the show. Instead of asking the stage manager what needed to be done, Alex,
decided to use his initiative and freshen up the stage by applying a coat of lacquer from
one of the tins backstage. Alex didnt bother to read all of the instructions on the tin of
lacquer because he suffers from a mild form of dyslexia and finds it difficult and time
consuming to read small print. If he had, he would have read a warning on the tin that
the lacquer was not suitable for certain surfaces because it becomes very slippery when it
heats up.
By the end of the first Act, the stage has become incredibly slippery as a result of being
under the stage lights. Bella executes a particularly complicated dance move and slips
over, spraining her right ankle. During the intermission, she complains about the
condition of the stage but refuses to let her understudy take over, arguing that a true
professional can cope with adverse conditions and that she must not disappoint her
adoring public. She also ignores her physiotherapists advice, who checks her during the
intermission, to wear support bandages around her ankles, arguing that they make her
legs look too fat.
During the second Act, Carla, who is eleven years old and a devoted ballet fan, decides
to take a photograph of Bella with her new instant camera despite hearing the
announcement at the start of the performance that flash photography is prohibited under
a number of Victorian occupational health and safety regulations. The camera flash goes
off, momentarily distracting Bella who is trying not to slip again on the stage, which by
now is as slippery as ice. Bella falls heavily, suffering a complex fracture of her right
ankle and a sprained left wrist.
Edward, a dance critic, had been sitting in the audience that night. Up until Bellas fall,
he had been planning to offer her a lead role with the International Ballet, a position that
would have brought her great fame and a $10 million contract. He decides not to make
the offer after hearing Bella has broken her ankle. Bella is told by her doctor that her
ankle will never heal properly and that things might not have been so bad if shed worn
the support bandages. Eventually, her husband divorces her in search of a new rising
talent.
A few weeks after Bellas fall, Alex, who now realises that the lacquer caused the stage
to become slippery, asks around and finds out that it is usual practice to scatter resin on
theatre stages to ensure that the surface remains non-slip. He ensures that he does so
before the City Theatre re-opens the following season.
Advise Bella as to her legal rights in negligence against Alex and Carla. For the
purpose of this tutorial, consider all elements of the tort of negligence and any
potential defences.

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TUTORIAL 6 PURE ECONOMIC LOSS CAUSED BY NEGLIGENT

STATEMENTS / OMISSIONS
Question one
Terri is a horse-racing enthusiast who has been interested in purchasing a share in a
syndicate that owned a promising colt called 'Tort Terrific'. Bruce, a horse veterinarian,
who was already a member of this syndicate, offered to provide Terri with a certificate of
soundness for the colt. However, despite Terri's twice weekly reminder calls, Bruce had
not got around to checking the colt.
When Terri came across Bruce one day in the stables at the track, Bruce was
embarrassed. Realising he had not checked Tort Terrific as promised, and wanting to
avoid any further confrontation with Terri, Bruce smiled and said, 'Well. I've seen Tort
Terrific. He seems fine to me!' Bruce then removed a certificate of soundness from his
bag, filled in the details, signed it and handed it to Terri, commenting that in the
circumstances there would be no charge for the certificate. At the bottom of the
certificate was the statement, 'Although every effort is made to report faithfully, some
defects may exist which are not apparent without an autopsy'.
The next morning, Terri purchased two shares in the syndicate that owned Tort Terrific.
One share was bought with Terri's own money and the other with money given to her by
her mother, Shirley, with instructions that Terri was also to purchase a share for her.
Rod, a strapper working in the stables, overheard the conversation between Bruce and
Terri and also purchased a share in the syndicate. Rod saw Bruce shortly after Bruce's
conversation with Terri and said, I heard your advice to Terri and I hope its good,
because I'm off to buy a share myself.
Two weeks later Tort Terrific ran last in his first race, collapsing after crossing the
finishing line and having to be destroyed due to heart disease. This disease could have
been detected up to six months earlier by listening to his heart with a stethoscope, a
standard part of any veterinary examination. Terri was particularly distraught at these
developments, having placed a $10,000 bet on Tort Terrific winning the race.
Terri, Shirley and Rod have lost all of their investments and now seek your advice as to
whether they were owed a duty of care by Bruce.
Question two (from 2002 final exam)
Trixie, a solicitor practicing in Melbourne, spends one afternoon a week at a local radio
station. At the radio station she gives free legal advice to people who phone in. The
callers have about one minute to describe their problem and Trixie then tells them what
to do. On a recent afternoon session, Trixie answered a call from Eric. After listening to
Erics problem and his heartfelt plea for help because he couldnt afford to get any other
legal advice, Trixie advised Eric that his problem was a pretty simple one. She told him
that certain legal steps that a friend of his had suggested he take were not necessary. In
fact, any law student who had done property law would have known that she had given
the wrong advice. Eric did not take the steps his friend had told him about and has now
lost his house.

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Belinda was the next caller. Belinda was actually a long standing client of Trixies and
Trixie recognized her voice immediately when she heard it at the radio station. Belinda
runs a hot air balloon business taking people for rides in her balloon around Melbourne.
Belinda had been unable to contact Trixie at her office. Coincidently she had heard
Trixie on the radio and so called her at the radio station. Belinda asked whether she
should sign the contract she had left with Trixie earlier in the week for her urgent advice.
Rather than admit on the radio that she hadnt read the contract yet, Trixie told Belinda to
sign the contract. During their radio conversation, Trixie also told Belinda that a
syndicate of which she was a member had just established a company, Lead Balloon Ltd,
a competitor of Belindas. Trixie said Between you and me we did it because, although
Im not an expert in investment matters, after seeing your business I think ballooning is a
boom industry and a wonderful investment. When she returned to her office, Trixie sent
Belinda a bill for her advice.
At the end of Trixies segment, a tape recorded message is played. It says This segment
has been for entertainment only and we recommend you get independent legal advice
before acting on any of our legal advice.
After signing the contract, Belinda discovered there was a completely inappropriate
provision in the contract which any solicitor would have known should not be accepted.
As a result of signing the contract Belinda has lost a great deal of money. Lead Balloon
Ltd has also gone badly, going into liquidation shortly after Trixies radio appearance.
Shareholders can expect to receive no return on their investments.
Advise each of Eric, Belinda and Kent, a radio listener who purchased shares in
Lead Balloon Ltd after hearing Trixies recommendation, whether they were owed a
duty of care by Trixie.
Question three combination of mental harm and omissions
Deborah is regularly employed by Mrs Hedgehog to babysit 8 year old Harry Hedgehog
who is a known trouble maker.
Deborah is outside sitting on the Hedgehogs front verandah watching Harry and his 12
year old friend Bart who are playing in the next door neighbours garden. As she
watches Deborah notices the two boys place Harrys stuffed toy dog on the elderly
neighbour, Fiona Fragiles driveway. Deborah realized the boys are up to one of their
regular pranks because the stuffed dog left on the driveway is very similar in appearance
to Fionas beloved poodle.
Deborah continues to watch as Fiona and her sister Betty Basic reverse their car out of
the garage and down the driveway. Their car hits the stuffed toy dog and comes abruptly
to a halt.
Fiona leaps out of the car to see what she has hit. Upon seeing the inert dog lying under
the car wheel, Fiona screams and faints from shock.
Betty immediately calls the Doctor who admits Fiona to hospital. A hospital psychiatrist
says that Fiona believed that she had killed her beloved poodle. He diagnoses Fionas
reaction as severe post traumatic stress syndrome and predicts that it will be some time
before Fiona will be able to lead a normal life.
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Meanwhile, Betty too suffers from anxiety and loss of appetite following her sisters
illness and hospitalization.
Advise Fiona and Betty as to whether they were owed a duty of care by Deborah not
to cause them mental harm.

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