Autumn 2021
Instructions
This examination is made available online at 9.30 on Friday 4th June 2021.
Your completed answer file is due at 9.30 on Saturday 5th June 2021 and must be submitted online via the xx link Assignments folder on Blackboard/Canvas.
There are 2 questions. Your answer to each question attempted should commence on a new page and be appropriately numbered. The examination is worth 60% of the marks available in this subject. Each question is worth 30%. This examination is an open book examination.
This examination is expected to take approximately 3 hours of working time. You are advised to allocate your time accordingly. Your answer file may be submitted at any time before the due time. Please allow time to complete the submission process. You may only submit your essay once.
Please submit your file in PDF/Word format. Please name your file as follows: EXAM_70311_student number e.g. EXAM_70311_12345678
It is important to save the digital receipt straight from your assignment inbox. It is your responsibility as a student to download and save a copy of the digital receipt as proof that you submitted your work.
Word Limit
There is a total word limit of 2400. Footnotes/references are not included in the word count. The most important thing is to answer the question in a succinct manner. This means that your answer can consist of a word count less than the imposed word limit. There is NO leeway permitted. Students who exceed the limit will be penalised one mark for every fifty words in excess of the limit.
Footnotes/references must be used for citation purposes only and not for the development of your arguments. A bibliography is not required for this assessment task.
Important Notice – Exam Conditions and Academic Integrity
In attempting this examination and submitting an answer file, candidates are undertaking that the work they submit is a result of their own unaided efforts and that they have not discussed the questions or possible answers with other persons during the examination period. Candidates who are found to have participated in any form of cooperation or collusion or any activity which could amount to academic misconduct in the answering of this examination will have their marks withdrawn and disciplinary action will be initiated on a complaint from the Examiner.
Exam answers must be submitted via the Assignments page on Canvas. Staff may ask that a student undertake an oral test to ensure they have completed the work on their own and to assess their knowledge of the answers they have submitted.
Students must not post any requests for clarification on the Discussion Boards on Canvas. Any requests for clarification should be directed by email to Michael Thomson on michael.thomson@uts.edu.au. Where clarification is required it will be broadcast by email to all students in the exam group. Michael Thomson will be available for the first 90 minutes of the examination time. Please therefore ensure that you spend the first hour carefully reading both questions. Emailed questions should only address any ambiguity or mistake in the exam text. They should be the sort of question you would be prepared to raise your hand for in an examination hall under invigilated conditions.
Question 1:
The first confirmed COVID-19 case in Australia was on the 25th January 2020. At this time there was clear scientific information that established the nature of infection: its severity, its pattern of spread and means of control. In particular, it was known that the only mechanism to reduce the spread of the virus was to break the chain of infection and this could only be achieved by considerably limiting human contact, using hand sanitiser, and wearing masks.
On the 18th February 2020 Prue began her annual vacation at a yoga and meditation retreat at Yoga Palace Pty Ltd (Yoga Palace) in Sydney. The retreats were run once each month. Yoga Palace was famous for these retreats, called “NAMESTE HOTWAY”.
Prue was one of 150 devoted yogis who sat closely together, without movement, in a closed and airless room for 10 hours a day for 20 days. No talking or communicating with the outside world was allowed. The room was heated to very high temperatures. All participants had to undergo a heart and cholesterol check before taking part in the retreat. Prue had been given a package of information about the retreat stating that physical distancing was not possible. Hand sanitiser and masks were not mentioned. The information package included a consent form which Prue signed. The consent stated that ‘Hot Yoga is dangerous. Yoga Palace will not be held liable for any physical or mental or economic harm caused by participating in the NAMASTE HOTWAY retreat.’
Yoga Palace had on the 30th January mandated COVID-19 testing for all employees. Yoga Palace had also mailed and emailed the cohort of yogis who had attended the NAMASTE HOTWAY retreat at the Yoga Palace in January 2020 with a form. The form asked the yogi whether or not they had experienced flu like symptoms. One of the forms received by return mail to Yoga Palace by a yogi from the January retreat stated that they had tested positive for COVID-19.
While the form had been mailed by the infected yogi on the 2nd of February Yoga Palace did not find the form until the 25th February. This was 7 days after Prue had started the course. None of the 150 participants, including Prue were told by Yoga Palace during their course that one devotee from the previous meditation retreat exhibited virus symptoms.
Yoga Palace has since apologised to all yogis at Prue’s February retreat. They identified the reason why the February retreat of yogis were not informed before their retreat began of the presence of coronavirus at the January retreat to be due to a ‘mail room error’. The error occurred due to the carelessness of Kris, a high school student, who was on voluntary work experience with Yoga Palace. Kris had little understanding of mail rooms – not being trained in mail room protocols – and had mistakenly muddled up the mail with homework and taken it home unopened. It stayed that way until her school exams – when she found the mail on the 25th of February and handed it to Yoga Palace.
Prue tells you that if she had known of this positive case she never would have attended the February retreat and she would have left immediately upon being told of it.
Upon her return to the outside world Prue found things much changed. Critically, Yoga Palace was on the national news as a Coronavirus hot spot. Prue lives in an apartment building – all the residents knew she had been at Yoga Palace, indeed as a personal fitness trainer, Prue was a well known advocate for Yoga Palace. Prue normally does a very busy trade but after the Yoga Palace COVID-19 ‘scare’ and negative publicity her own business was severely affected. Prue estimates she has lost profits of $50,000.00 during the period immediately following her return from Yoga Palace.
Three days after she arrived home Derek (another resident of the apartment block) spots her in the corridor of the building. Derek is a carer for his elderly mother who he loves very much. Infuriated by the fact that Prue has brought perceived danger to his loved one Derek walks up behind Prue in the corridor and spits on her, shouting – ‘That’s what I think about Yoga Palace. Go back there and I will really hurt you’.
Carol, who lives in the apartment next to Derek and is overly protective of him and his mother, writes an open letter to the apartment block which states the following: “Please do not attend Prue’s fitness classes, I think it is possible that she has COVID-19”. Prue knows of at least 5 large corporate clients who received that open letter and cancelled bookings with her as a result.
Advise all parties as to their rights and liabilities in tort. Do NOT consider assessment of damages. Question 2.
Jane is a professional football player. Jane also works a few hours a week helping out the South Sydney Horses (SHS, a local football club). She works on their grounds and uses their equipment. Jane coaches 15 players for 6 hours per week – 6-9pm on a Tuesday and Thursday night. She is paid an hourly rate for her coaching and while coaching wears a brightly coloured SHS ‘Football Coach’ jacket. These arrangements are governed by a short standard form contract which Jane signs each season setting out the hours she will work and the teams she will coach as well as the hourly rate of pay. Jane can coach anyway she chooses but is directed by SHS as to time, duration, and the names and numbers of players.
On the SHS grounds a large and state of the art 3D football training complex is being built. It is almost complete. This is of incredible interest to Jane and the football team she coaches. The security company which is contracted to patrol the site is ACME Pty Ltd.
Without asking anyone at SHS Jane arranges with Margaret, who works for ACME Pty Ltd as the Security Guard for the building site, to allow the team onto the building site for a ‘look around’ after training. This was notwithstanding specific NSW government regulations concerning safety on building sites, which required amongst other things, that all persons allowed onto a building/construction site should have a ‘workplace
safety certificate’, having done a specific course approved by the Workcover Authority of NSW. None of the team, except for Jane held such a certificate.
Prior to their site visit, Jane and some of the older players had drinks at the local bar to review a few principles of team sports and the tactics for the upcoming game. Alice who at 24 was amongst the oldest on the team, had several beers. The younger players, including Sally who was 14, met the others when the ‘tour’ began. The team and Jane ranged over the site. No accommodation was made for their visit.
Sally went exploring, tripped in the dark over an exposed tree root and fell about 3 metres into the bottom of a pit. She fractured her spine and is now paraplegic. Sally’s father, Claude, now suffers ‘post-traumatic stress disorder’. The medical evidence attributes this to his having seen Sally immediately after the accident in the hospital. He also feels responsible for the accident because he gave permission for Sally to visit the site with older team mates. Claude cannot work.
Alice ran to rescue Sally. She slipped and fell into the pit and cut herself. Alice had a particularly rare blood disease which meant that once cut (and without medical treatment) she would bleed at an unusual high and fast rate. Alice died leaving a dependant wife and two young children.
Jane had attempted to save both Sally and Alice. She too slipped and badly hurt her lower right leg. Jane was taken from the scene by ambulance to Metropolitan hospital where she was treated by Dr Jones in the emergency unit. Dr. Jones noted that a fragment of bone had compressed an artery in Jane’s leg, he told Jane it must be operated on. Jane asked him one question – which was whether or not she would be able to play football. Dr Jones answered yes, omitting to mention that there was a one in 10,000 chance that Jane may lose her leg through complications from the surgery. Ultimately, Jane’s lower leg had to be amputated. Jane can no longer play professional football.
In the aftermath of the commotion the rest of the team (minus Sally, Alice and Jane) are told by Margaret they cannot leave the site and go home until the police arrive. The police attend 40 minutes later.
Ray owns a mobile coffee cart – a small truck equipped with an espresso coffee machine. He had a licence from the SHS enabling him to park his truck a short distance from the football grounds in order to sell coffee and other refreshments to match attendees and players. Ray says that since the closure of the SHS grounds (due to the accident) his business has suffered severely and he is losing profit of about $5000 per weekend.
The Sydney South Kindergarten is a large inner city child minding centre which is located next to the SHS sports ground. The kindergarten playground is adjacent to the site of the new state of the art 3D sports centre. Since the accident Maree, the Director of the Kindergarten, has been in touch with SHS about the large amount of dust and other airborne debris coming from the now closed construction site into the Kindergarten property. Maree has been very concerned about the effects of the dust on the children at the kindergarten, particularly as there are several asthma suffers amongst them. She has raised this with SHS but they have told her that there is nothing they or she can do.
Advise all parties as to their rights and liabilities in tort. Do NOT consider assessment of damages.
END OF EXAM PAPER
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