THE HONORABLE SOCIETY OF KING’S INNS

ENTRANCE EXAMINATION

AUGUST 2013

Examination: Law of Torts

Date: Monday 19 August 2013

Time: 10.00 am – 1.00 pm

Examiner: Mr Paul Ward

External Examiner: Mr Michael McGrath SC

Instructions:

Candidates MUST attempt Question 1 and any other TWO questions.

Question 1 carries 50 marks and questions 2 – 5 carry 25 marks each.

This paper is 7 pages long including the cover sheet. You should check that you have all the pages and inform the invigilator immediately if any are missing.

Q.1

Mr. and Mrs. A are foster parents who decided not to have any children of their own. They consulted Dr B who advised that the best form of contraception was for Mr. A to undergo a vasectomy procedure. Dr B informed Mr. and Mrs. A that the procedure was virtually painless and would guarantee that Mr. A would become sterile and incapable of impregnating Mrs. A. Dr B performed the vasectomy procedure in August 2011 but failed to inform Mr. and Mrs. A of the remote possibility that the procedure could naturally reverse itself. In November 2011 Mrs. A discovered she was pregnant. At Christmas time in 2011 Mrs. A came into contact with a foster child suffering from Rubella, a condition that is potentially very dangerous to pregnant women as it can cause congenital abnormalities to the foetus. Mrs. A consulted Dr C, a gynecologist, who conducted a blood test on Mrs. A and confirmed that both she and the foetus she was carrying were in perfect health. Dr C also confirmed that Mrs. A was pregnant with twins.

In August 2012 Mrs. A gave birth to the twins. Twin D was born in perfect health but twin E was born with severe physical disability. Mrs. A also suffered severe hemorrhaging during child birth owing to the clumsy delivery procedure performed by Dr C. Dr C performed an episiotomy (cutting between the vagina and anus) which was too deep and required extensive suturing after giving birth. The suturing took many days to heal. Mrs. A was kept in the maternity hospital for three days after the birth and discharged without being examined by Dr C. A day after returning home with the twins Mrs. A became very ill and was readmitted to hospital with an infection located at the site of the suturing. Mrs. A was confined to hospital for ten days before she was properly discharged by Dr C.

In September 2012 Mr. and Mrs. A agreed to look after Mr. A’s brothers’ Alsatian dog, Spot, while Mr. A’s brother went on holiday for two weeks. Spot managed to jump the garden wall into the neighbour’s garden where he launched at Tim, a five year old boy. Spot did not collide with Tim. Tim, however, has been traumatized by the incident. Spot did, however, savage the neighbour’s chickens. Mr. A’s brother was shocked by the news which came as a big surprise as Spot was well trained by Mr. A’s brother as guard dog.

In December 2012 the Health Service Executive (HSE) contacted Mr. and Mrs. A to enquire if they would be willing to foster a child. Mr. and Mrs. A. agreed to foster a child but on the condition that the child did not come from a abusive family. The HSE assured Mr. and Mrs. A that they would only place with them a child of a single parent who was unable to raise the child. Mr. and Mrs. A took in a foster child, Jack, in January 2013. Jack, who is twelve years old, has been physically and sexually abused while in State care. Jack secretly perpetrated the same abuse on the twins.

Mr. and Mrs. A recently discovered the abuse of the twins and are receiving psychiatric treatment for the shock they suffered on learning of the abuse. In addition, Mr. and Mrs. A cannot afford to raise the twins as they are full time foster parents with no independent income. The A’s estimate that it will cost about €200,000 to raise and educate twin D and €3.5 millionto properly provide for the care of twin E.

Mr. and Mrs. A have sought you advice in respect of the following claims: the prospect of recovering the above amounts for the twins; the potential liability of Dr B and Dr C in the discharge of their professional duties;, the liability of the HSE for the psychiatric harm they suffered and Mr. and Mrs. A’s potential liability to Tim.

Q.2

“Ecleans” is an internet based domestic cleaning products retailer to the trade and the public around the world. The cleaning products are allegedly environmentally friendly in not containing harmful chemicals which would otherwise affect water purity levels. “Ecleans” was established in 2003 and has a turnover of €1 million per annum. “Ecleans” operates through internet sales which it distributes from a warehouse located in west Dublin beside a river, across which is a fruit farm owned by Mr Z. The warehouse receives monthly deliveries of cleaning products which are stored on site prior to distribution. Once a year “Ecleans” opens the warehouse to the trade and sells off its unused stock.

Mr Z irrigates his fruit farm using the river water. An EU Regulation introduced in 2013 stipulates that the water used to irrigate the fruit must be to a minimum standard. During recent water sampling conducted by Mr Z, the results indicated that the water purity level has fallen below the EU Regulation minimum requirement. Further testing has revealed traces of the solution used in “Ecleans” products. “Ecleans” conducted an enquiry into the matter and discovered that there have been historical seepages from the stored products in the warehouse since 2006 whereby the fluids managed to permeate the concrete floor of the warehouse and travel through the soil and into the river. Mr Z’s fruit crop for the 2013 season, valued at €0.5 million, cannot be sold in Ireland but a Moroccan business, L Ltd is willing to buy the consignment for €100,000.

Six months ago “Ecleanz”, a new company, commenced business in selling household cleaning products via a television channel which is broadcast throughout Europe. The television channel is based in Dublin.

“Ecleans” has noticed that its turnover is down considerably in the last quarter by 50%.

“Ecleans” seeks your advice on what cause or causes of action it may have against “Ecleanz” and what potential cause or causes of action it might face from Mr Z.

Q.3

Critically assess the operation of and interpretation of the Statute of Limitations Act, 1957 as amended by the Statute of Limitation (Amendment) Act, 1991.

Candidates should refer to relevant case law in their discussion.

Q.4

Backfire Ltd is an Australian manufacturer of charcoal fired barbeques which are renowned worldwide for their quality and durability. Backfire Ltd has been in production since the 1980s and the barbeques are constructed to the highest standards required under Australian federal law. In 2002 the then latest range of barbeques, “The Zippidydoda”, contained a design flaw which caused the barbeques to explode resulting in red hot coals being emitted from the barbeques. A number of such explosions resulted in litigation resulting in Backfire Ltd to go into liquidation. Rica Ltd, based in Morocco, is a worldwide distributor of barbeques. In August 2003, Rica Ltd purchased the unassembled parts of 1000 “Zippidydoda” barbeques in a liquidation sale. Rica Ltd was aware of the design fault with this range of barbeques and removed the Backfire logo from the barbeques. In August 2003, Rica Ltd sold the unassembled barbeques to Wolfhound Ltd, an Irish based distributor. Wolfhound Ltd was aware that the barbeques were the “Zippidydoda” range. Wolfhound Ltd, assembled the barbeque and sold them on to the retail chain of DIY shops, “Gardens Etcetera”. “Gardens Etcetera” was unaware of the origin of the barbeques and added their own logo to the barbeques and sold them as their own brand product.

Mr A bought a ”Gardens Etcetera” barbecue in 2009 and he was very pleased with quality and performance of the product for a number of years until August of 2011 when the barbecue began to malfunction causing dense plumes of smoke to escape during the summer of 2011, much to the annoyance of Ms B, Mr A’s neighbour. This has continued for the past two summers and Ms B is sick and tired of the annual smoke screen during the summer months, mainly due to the fact that the smoke exacerbates her asthmatic condition.

Recently, Mr A was barbequing when the barbeque exploded causing red hot coals to be flung into the air. The coals landed on Mr A’s new garden shed which caught fire and burnt to the ground. The shed cost €1,000. Later that day Mr A received a letter from Ms B’s solicitor informing him that a High Court action had been issued against him in relation to the smoke from the barbeque.

Mr A consulted his own solicitor, Ms C, about his destroyed shed and the smoke issue with Ms B. Ms C, in a brief phone conversation, informed Mr A that there was nothing he could do about his shed and that he had nothing to worry about in relation to his smoking barbeque. Mr A ignored the legal documents he received from Ms B’s solicitor.

Ms B was granted an injunction by the High Court preventing Mr A lighting his barbecue, €40,000 for the exacerbation of her asthma and was awarded costs of €30,000.

Mr A seeks your advice on what cause or causes of action he may have and also as whether he should appeal the High Court orders against him.

Q.5

“Animal Farm” is a farm in rural Ireland that is open to the public. “Animal Farm” has domesticated pigs, cows and horses amongst other animals. At the entrance to the farm is a battered and faded sign stating “Visitors enter at their own risk, Animal Farm accepts no responsibility whatsoever for any injury however sustained”. In addition to charging an entrance fee to observe the animals, guests have to pay a nominal car parking charge. Family A recently visited “Animal Farm” paying both car park and entrance fees. Child B of Family A fell through a cattle grid that had a metal bar missing. Child B broke her leg in the accident.

Employee C was in charge of the cows and was furnished with a frayed piece of old rope to help herd and tether the cows. In attempting to tether a cow, employee C was injured when the cow broke free from its tethering owing to the poor condition of the rope. The farming community usually utilise leather harnesses to tether cattle.

Employee D was in charge of the pigs and left the gate open which enabled the pigs to escape from the pen, leave the farm and cross the main road into a neighboring fruit farm. The pigs destroyed the summer harvest which was valued at €20,000.

Employee E was in charge of the miniature ponies and he secured the four foot high gate to their enclosure. Mr F had parked his brand new car on the road outside the fruit farm. Somehow the ten ponies escaped causing considerable damage to Mr F’s new car to a value of €7,000. Mr F was unable to work while the vehicle was being repaired and is at a loss of €5,000 as a result.

“Animal Farm” seeks you advice on what specific cause or causes of action in tort that it might face and its potential liability.

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