Microsoft word - torts exam2005.doc

Total Marks: 80
Time: 3 hours
Closed Book
Table of Contents Provided With Exam
Question One: Value 15 marks (3 marks each) Suggested Time: 30 minutes
Explain the significance of the following judgments

Cooper v Hobart (2001), 206 D.L.R. (4th) 193 (S.C.C.) Fairchild v. Glenhaven Funeral Services Ltd., [2002] 3 All E.R. 305 (H.L.(E.) Hunter v. Canary Wharf, [1967] A.C. 655 (H.L. (E.)) The Wagon Mound (No.1) [1961] A.C. 388 (P.C.) Hercules Managements v Ernst & Young, [1997] 2 S.C.R. 165
Question Two
Briefly discuss the following tort law issues or concepts: Value 25 marks (5 marks
each) Suggested time: 60 minutes

The effect of breach of statutory duty in Canadian negligence law cases The use of res ipsa loquitur in Canadian negligence law cases The tort of “misfeasance in a public office” (also known as “abuse of power”) The defence of qualified privilege in defamation law The “strong connection” test in the application of vicarious liability
Question Three: Value 40 marks Suggested Time: 90 minutes

Consider the following hypothetical and answer the questions which follow it:
Mary Smith, a 28 year old woman, went to see Dr. Shirley Valentine, for her annual
medical check up. Mary had been suffering from “hypertension” for several years. This
is a medical condition caused by abnormally high blood pressure, and its symptoms may
include headaches, tiredness and confusion. Dr. Valentine was periodically prescribing
minoxidil for Mary to treat her condition, when her blood pressure was very high.
Minoxidil is a drug that lowers blood pressure. It is a drug that should not be taken by
pregnant women, because it may affect the development of the foetus, resulting in
disorders at birth. When Dr. Valentine first prescribed minoxidil for Mary, two years
previously when she was 26, she made sure that Mary was not pregnant and she advised
her that she should not become pregnant while on the drug. Mary was on birth control at
that time and had no intention of becoming pregnant. Dr. Valentine repeated this warning
to Mary at her next year’s medical check-up, when a further prescription of the drug was
given to Mary, due to her high blood pressure. However, the warning was not issued to Mary at this year’s check up, and there was no discussion about pregnancy. The drug was prescribed, again because Mary’s blood pressure was too high. Mary had in fact stopped taking her birth control pills three months before she saw Dr. Valentine for this year’s check-up. She and her husband, Frank, wanted a child. Dr. Valentine was not aware of the fact that Mary was not on birth control and was trying to become pregnant. At the time she stopped taking her birth control pills three months earlier, Mary was not then on minoxidil. After seeing Dr. Valentine, Mary again started taking minoxidil, on Dr. Valentine’s instructions. Mary had completely forgotten the warnings about not taking minoxidil during pregnancy, which had been given to her a little over a year before, when she was 26. Thus she started taking the drug, while she was at the same time attempting to become pregnant. Three months later, Mary again saw Dr. Valentine. She had missed her last menstrual period. Dr. Valentine informed Mary she was pregnant. Dr. Valentine found out that Mary was still taking minoxidil. Dr. Valentine was very concerned and told Mary to stop taking the drug immediately. Mary then remembered that she should not have been taking the drug for the past few months. Dr. Valentine did not want to unduly alarm Mary. She said that everything would “probably be alright” and “not to worry”. When she was seven months pregnant, husband Frank, in order to get Mary’s mind off things, told her that they should go to their favourite restaurant for a night out. Mary agreed, and off then went to Restaurant Favorito, owned by renowned chef, Buono Boyardee. At the restaurant they had a nice dinner. Frank had a liter of red wine. Mary was not drinking at all, due to her pregnancy. By the time they left the restaurant, Frank was quite intoxicated. Mary drove. Part way home, however, Mary started getting terrible headaches. She became confused and disoriented. This was all because of her hypertension and the fact that she was no longer on her medication. She had blurry vision. The car swerved and she crashed into a parked car. It was a sports car, belonging to a University of Alberta professor, Professor Luigi Torte. The car was parked at a meter. It had a ticket on it, because the meter had expired. Mary and Frank left a note on the car with their name and address, and decided to go home. Mary did not feel that she could drive due to her headaches and dizziness. They only had another five kilometers or so to go, so Frank agreed to drive, despite the fact that he was still under the influence of alcohol. Mary got into the passenger seat, but did not put on her seat belt, because she felt uncomfortable with it on, in her pregnant state. On the way home, Frank’s erratic driving resulted in him driving through a red light. There was a man and his dog walking across the street at the time. Luckily the man, Charlie Tuna, was not hit. Unfortunately, the dog Bowser was. Frank realizing that he had hit something or someone, slammed on his brakes. Mary was thrown forward, her head hitting the dashboard of the car. Bowser was seriously injured and lying in the middle of the intersection. Charlie Tuna
was horrified. He knelt down beside whimpering Bowser, trying to comfort him. The
light changed. Meanwhile, Sally Safest, came driving down the road. She had a green
light. She failed to see Charlie, crouching over Bowser in the middle of the intersection.
Sally Safest ran into Charlie, who was not so lucky this time, seriously injuring him.
Charlie was taken to hospital with serious injuries. Bowser died on the way to the vets.
Frank was arrested and charged with drunk driving. Sally Safest was not given any traffic
violation. Mary went to the hospital for a head wound, but fortunately it was not too
serious and she was sent home.
Two months later, Mary and Frank’s baby, little Alexander, was born with serious
disabilities caused by Mary having taken the drug minoxidil, while she was pregnant.
Question Three: Value 40 marks. Suggested time: 90 minutes

Consider the following hypothetical and answer the questions which follow it:

(i) Alexander through his guardian wishes to sue his mother, Mary, claiming
that she was negligent in continuing to take the drug minoxidil while she was
pregnant and she was thus at least partly responsible for his disabilities. Advise
Alexander whether he is permitted to sue his mother, citing the authority for
your advice.

Value: 5 marks
(ii) Charlie Tuna, the owner of deceased dog Bowser, wishes to sue Chef
Boyardee, the owner of Restaurant Favorito, alleging his negligence with
respect to the car accident in which Bowser was killed. Advise Charlie with
respect to his claim.

Value: 5 marks
(iii) Luigi Torte wishes to sue Mary alleging her negligence with respect to the
accident which damaged his sports car. Advise her with respect to this suit.
Mary raises the argument that Luigi should be at least partly responsible for his
own damages since his car was illegally parked. Discuss this aspect of the case as
Value: 5 marks

(iv) Mary sues husband Frank for her injuries caused by his negligent driving.
He argues contributory negligence, raising the seat belt defence. Discuss only
this aspect of the law suit.

Value: 5 marks
(v) Charlie wishes to sue Frank for the physical injuries which he suffered when
Sally Safest’s car hit him in the intersection. He does not sue Sally because it is
generally agreed that she was not driving negligently when she hit him as he was
in the intersection. Advise Charlie.
Value: marks
(vi) Charlie suffered nervous shock allegedly as a result of Bowser’s injuries and
subsequent death, caused when he was hit by Frank’s car. He wishes to sue
Frank for these damages as well. Assuming that Frank is negligent and
responsible for the accident, would nervous shock be compensable in these

(vii) Mary and Alexander want to sue Dr. Shirley Valentine for her negligence in
prescribing minoxidil to Mary and for not advising Mary of the risks of the
drug to pregnant woman, during her last annual medical check-up. Discuss this
law suit. Do not discuss the nature of the damages which the parties could
receive if successful.
Value: marks

(viii) Mary and Alexander also wish to sue Dr. Shirley Valentine for her failure
in advising Mary about the possibility of testing the foetus’ health in utero, to
see if the foetus had suffered damage, as a result of the drug. Apparently there
were tests available to determine whether the foetus had suffered as a result of
the drug. Discuss this suit, restricting your discussion to the duty, breach and
cause issues. Do NOT discuss the nature of the damages which each could
recover if successful.
Value: marks


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